REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT, BLOEMFONTEIN

Not Reportable
CASE NO:  006/20 IEC

In the matter between:

SIYABULELA MALAWU

Applicant

and

THE ELECTORAL COMMISSION

First Respondent
THE MEC FOR CO-OPERATIVE GOVERNANCE
& TRADITIONAL AFFAIRS, EASTERN CAPE
Second Respondent
AMAHLATI LOCAL MUNICIPALITY

Third Respondent
THE MUNICIPAL MANAGER, AMAHLATI
LOCAL MUNICIPALITY

Fourth Respondent

Neutral Citation: Malawu v The Electoral Commission and Others (Case no
006/20 IEC) [2020] ZAEC 1 (18 November 2020)

Coram: MBHA JP, LAMONT J, SHONGWE AJ, PATHER (ADDITIONAL
MEMBER)_

______________________________________________________________

JUDGMENT
______________________________________________________________

LAMONT J (MBHA JP, SHONGWE AJ and PATHER concurring):

INTRODUCTION
[1] On the 9 November 2020 the applicant launched an urgent application
against the respondents in this matter. The applicant sought an order directing
the respondents to postpone the by-elections scheduled to be held at
Amahlati Ward 13, Local Municipality, Stutterheim (the ward) on the
11 November 2020. In the alternative the applicant sought an order that the
holding of by elections in that ward be held beyond the 90 day period
envisaged in section 25(3)(d) of the Local Government Municipal Structures
Act 11 of 1999.

[2] The applicant did not cite any of the political parties who had put up
candidates for election. The applicant put the respondents on terms to file
papers and set the matter down for hearing on 10 November 2020 at 12h00.
The first respondent sought an opportunity to file later than the time set by the
applicant and in due course an answering affidavit was filed by the first
respondent and subsequently there was a replying affidavit filed by the
applicant.

[3] On the 11 November 2020 an order was made dismissing the
application brought by the applicant. It was indicated that reasons would
follow and these are the reasons.

[4] The applicant set out that during 2016 he was elected into office as a
councillor representing the ward. His term of office was for a period of five
years expiring during 2021. During 2018 and 2019 he was accused of various
breaches of the Code of Conduct for councillors. An investigation ensued in
terms of the Code of Conduct. During the course of that investigation a further

investigation concerning the applicant’s failure to attend three consecutive
Council meetings was made. During March 2020 the second respondent
wrote a letter to the applicant requesting the applicant to make
representations as to why he should not be removed as a councillor.
Thereafter the second respondent removed the applicant as a councillor.

[5] The applicant instituted review proceedings in the Grahamstown High
Court seeking to set aside the second respondent’s decision. It is not
apparent from the papers when exactly this application was launched. During
the review process the applicant obtained the record of proceedings from
which it appeared that the investigation team was not the same as the team
that investigated the breaches of the Code of Conduct alleged against the
applicant. A report had been prepared and only one member out of five
people who are set out as members of the investigative team signed it. The
report recommended inter alia that the second respondent should afford the
applicant an opportunity to appear before the investigating team and present
his version, and that the Council should rescind its resolution reprimanding
the applicant for failure to attend more than three consecutive Council
meetings.

[6] On 3 November 2020 the High Court dismissed the application. The
court held that by reason of the dispute which existed in the papers before it
the second respondent’s evidence that the report was considered and had
been completed by all persons who were to sign must be dealt with on the
basis of its evidence and that in any event the applicant had failed to attend
more than three consecutive meetings and his removal was mandatory.

[7] The applicant was dissatisfied and on 3 November 2020 he launched
an application for leave to appeal. The applicant has not been given leave to
appeal and no appeal is pending other than in the form of the application for
leave to appeal. The applicant submits that an application for leave to appeal
suspends the order. There is no order in favour of the applicant hence there is
no order to be suspended. The legal proceedings which have been pursued
by the applicant conferred no substantive rights on him.

[8] One of the fundamental bases upon which the applicant alleges the
judgment to be flawed is an inference that he drew that as the report was not
signed by members whose names were referred to in it, they had not seen
and agreed to it. This inference is unfounded. The fact that certain members
did not sign the report does not mean that they were not party to it and did not
make a recommendation contained in it. The appellant’s claim that there is a
reasonable prospect of success of the proposed appeal is unfounded. The
fundamental reasoning which he presented to the court is flawed.

[9] The applicant claims to have only received notice of the fact that
elections were to take place on 11th November 2020 when someone told him
about that on 6 November 2020. The applicant claimed the matter to be
urgent as, if another person was appointed pursuant to the election he would
be unable to be appointed to that position should his appeal succeed.

[10] The first respondent stated that during September 2020 it indicated
publicly that the by-election for the ward in question would take place on
11 November 2020. On 9 October 2020 the second respondent officially set
the date. In anticipation of the election date polling stations in the wards were
opened to allow voters to register to vote, amend the registration details and
to verify that the registration details were accurate. On 23 October 2020 an
election timetable was published A special targeted communications and
education program was set in place in the relevant wards to teach voters
about the safety protocols associated with the COVID-19 pandemic and to
encourage them to participate. The inference is irresistible that the appellant
knew as he was a community leader in his ward of what was taking place by
way of preparation for the election and of the election date itself.

[11] The applicant did not cite the political parties whose candidates are
standing for election. There are four registered parties who have nominated
candidates to contest the by election. They are the African National Congress,
the Congress of the People, the Democratic Alliance and the Economic
Freedom Fighters. All of these parties have a direct and substantial interest in

the relief sought by the applicant. They are also the persons who would in the
ordinary course represent their member, the person standing for election who
is directly affected by the proposed relief claimed by the applicant. The failure
of the applicant to cite these parties is fatal to the application as materially
interested parties have not been cited

[12] The objection of non-joinder may be raised where the point is taken
that a party who should be before the court has not been joined or given
judicial notice of the proceedings. The substantial test is whether the party
that is alleged to be a necessary party for purposes of joinder has a legal
interest in the subject-matter of the litigation, which may be affected
prejudicially by the judgment of the court in the proceedings concerned. (See:
Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) para 21. See
also Aquatur (Pty) Ltd v Sacks 1989 (1) SA 56 (A) at 62A–F; Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs 2005 (4) SA 212
(SCA) paras 64–66.)

[13] A court must raise the issue of non-joinder mero motu if it believes that
there are interested parties who should have been joined or given notice of
the proceedings, and this can even be done on appeal. (See: Amalgamated
Engineering Union v Minister of Labour 1949 (3) SA 637 (A); Bowring NO v
Vrededorp Properties CC 2007 (5) SA 391 (SCA) para 21; Herbstein and Van
Winsen: The Civil Practice of the High Courts and the Supreme Court of
Appeal of South Africa.)

[14] A party is necessary and is substantially interested if the judgment
cannot be sustained and carried into effect without necessarily prejudicing his
interest. Clearly, candidates and political parties are parties which are
substantially interested in the matter. (See Rosebank Mall (Pty) Ltd and
another v Cradock Heights (Pty) Ltd 2004 (2) SA 353 (W).)

[15] The decisions of Morgan and Another v Salisbury Municipality (1935
AD 167), Collin v Toffie (1944 AD 456) and Home Sites (Pty.) Ltd v Senekal
1948 (3) SALR 514 (AD) were quoted with apparent approval in Amalgamated

Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 656-9. In this
case the respondent had appointed an arbitrator to determine a dispute
between the appellant and the City Council of Durban and the appellant
sought the setting aside of that appointment. At 657 Fagan AJA (as he then
was) stated:
‘The question of joinder should surely not depend on the nature of the subject-matter
of the suit . . . but . . . on the manner in which, and the extent to which, the Court's
order may affect the interests of third parties.’
At 661 Fagan AJA said that the City Council had no less an interest than did
the appellant. He went on to say that:
‘. . . the Council is directly and substantially interested, and that a judgment as
prayed . . . cannot be sustained and carried into effect without necessarily prejudicing
the interest of the Council.’
In the result it was ordered that judgment stand over until a consent by the
Council to be bound by the judgment had been obtained or other directions for
the future conduct of the proceedings had been given.

[16] In the present matter the issue of joinder of candidates concerns
candidates who must be joined by necessity. The failure to have done so
results in the matter being unable to proceed. (See: Rosebank supra, para
[11]: ‘It is important to distinguish between necessary joinder, where the
failure to join a party amount[s] to a non-joinder, on the one hand, and joinder
as a matter of convenience, where the joinder of a party [is] permissible and
would not give rise to a misjoinder, on the other hand. In cases of joinder of
necessity the Court could, even on appeal, mero motu raise the question of
joinder to safeguard the interests of third parties and decline to hear the
matter until such joinder has been effected or the Court [is] satisfied that third
parties have consented to be bound by the judgment [of the Court] or [have]
waived their right to be joined.’ (Emphasis added))

[17] Normally there could be a stay and parties can be joined. In the
present matter there is no time for joinder to take place as the election is due
to take place on 11 November 2020. Hence the effect of non-joinder is that

the applicant must fail in his application as the prejudice to parties who have
not been joined cannot be remedied.

[18] The provisions of the Local Government Principal Electoral Act 2000 in
s 8(1) provides that the commission may request the second respondent to
postpone the voting day if it is satisfied that it is not reasonably possible to
conduct a free and fair election on that date. The basis for any postponement
is dependent upon it being not reasonably possible to conduct a free and fair
election. This is not the basis upon which the applicant approached this court
for relief. The basis upon which he approached this court was that his appeal
would be rendered academic and of no force and effect if the election
proceeded. The applicant in his replying affidavit suggests that he intended
this to mean that the election would not be free and fair as it was not fair to
him.

[19] The test is not whether or not the election is free and fair to him but
whether or not it is freely and fairly held. This involves a consideration not only
of the applicant’s position but also of all other parties. There can be no such
consideration without there being a joinder of the relevant parties to the
application and without appropriate facts being presented to the court. This is
simply not the applicant’s case as made out in the founding affidavit.

[20] The applicant has failed to make out any case entitling him to the relief
and the application fell to be dismissed. For that reason this court dismissed
the applicant’s application with no order as to costs.

LAMONT J
JUDGE OF THE ELECTORAL COURT

18 November 2020