Case No 315/2001

Reportable

In the matter between

ZOLEKA  MKETSU & OTHERS

APPELLANTS

and

AFRICAN NATIONAL CONGRESS
& OTHERS

RESPONDENTS

Coram
:
VIVIER ADP,  OLIVIER,  SCOTT,  CAMERON  et

BRAND  JJA
Heard
:
20 AUGUST 2002
Delivered
:
13 SEPTEMBER 2002

Election – jurisdiction of High Court – interpretation of s 65 of Act 27 of
2000

J U D G M E N T

SCOTT JA/…

SCOTT JA:

[1] 
The proceedings culminating in this appeal have their origin in
the local government elections held on 5 December 2000 in the Eastern Cape.
The elections took two forms;  the election by proportional representation of
councillors to municipal councils of different kinds and the election of
individual councillors to particular wards.
The five applications which are
the subject of the present appeal were launched on 19 December 2000, i e
some 14 days after the election.  Three related to the election by proportional
representation of councillors to three different councils, one being a district
council and the other two being local councils.  (Nothing turns on the
distinction.)  The remaining two applications related to the election of
individual councillors to particular wards.

[2] 
The applicants, now the appellants, in all five cases were
members of the African National Congress (‘ANC’), a registered party in

terms of the Electoral Commission Act 51 of 1996 (‘the Commission Act’).
They allege that the selection process by which candidates were chosen for
inclusion on the party’s list for election by proportional representation and as
candidates for the ward elections was flawed for want of compliance with the
procedures laid down in a party document entitled ‘ANC Campaign Manual’.
They contend that had the proper procedures been followed they would have
been included in the respective party lists or nominated for the wards in
question and in due course elected as councillors.  The first respondent in
each of the three proportional representational matters was the ANC.   The
second respondent was the chairperson of the Electoral Commission while the
remaining respondents were the municipal council in question and the
successful ANC candidates whose names had appeared on the party’s list.  In
each of the ward election matters the first respondent was the successful ANC
candidate, the second was the ANC, the third was the chairperson of the

Electoral Commission and the fourth respondent was the municipal council
concerned.
[3] 
As shall become apparent, the relief claimed in the Court a quo
is significant.  In the proportional representation matters the applicants sought
an order  (a) declaring that the party list of the ANC for the council in
question and certified by the chairperson of the electoral commission ‘is not
and never was the party list of the [ANC]’ for that council and  (b) that the
determination by the chief electoral officer  of the successful ANC candidates
as councillors of the council in question be set aside.   In the ward election
matters an order was sought declaring  (a) that the successful candidate in the
election was not properly nominated by the ANC to contest the ward in
question and  (b) that his candidature and subsequent election was null and
void.

[4] 
The applications were opposed on various grounds.  One of them
was that the appellants had failed to follow the procedure laid down in s 65 of
the  Local Government : Municipal Electoral Act 27 of 2000 (‘The Municipal
Electoral Act’) and that the High Court lacked jurisdiction to entertain any of
the matters.   As this and other issues were common to all the matters, they
were argued together.   Kroon J in the Eastern Cape High Court upheld the
defence of lack of jurisdiction and found it unnecessary to decide the
remaining grounds of opposition.  The appeal is with the leave of the Court a
quo.
[5] 
In order to better understand the issues relating to the question of
jurisdiction it is convenient to refer briefly at this stage to certain of the more
relevant statutory provisions governing the elections in question and the steps
taken in pursuance of those provisions.  In terms of s 11 of the Municipal
Electoral Act the Electoral Commission (‘the Commission’) is obliged when

an election is called to compile a timetable for that election and publish it in
the Government Gazette.   The Commission is a statutory body established in
terms of s 3 of the Commission Act with wide powers in relation to elections,
including their management.  It consists of five members, one of whom must
be a judge.  (Section 6 of the Commission Act.)   Returning to the Municipal
Electoral Act, in terms of sections 13, 14, 16 and 17 a registered party may
contest an election of a municipal council by submitting to the Commission in
the prescribed manner and by the date set out in the timetable a notice of
intention to contest the election and a party list of candidates for election by
proportional representation.  It may similarly submit in the prescribed manner
and by the date so set its nomination of a candidate for election in a ward.  In
terms of s 15 the Commission is obliged by not later than the date stated in
the timetable to compile a list of the parties contesting the election and to
certify the party lists which it is to keep available at the office of its local

representative.  Similarly, in terms of s 18, the Commission is required by a
date not later than the date so set to compile for each ward a list of candidates
contesting that ward and to certify those lists which are to be kept available at
the office of the Commission’s local representative.
[6] 
In accordance with the timetable compiled by the Commission,
the ANC gave notice of its intention to contest the election and submitted its
party lists and its nomination of ward candidates to the Commission by not
later than 19 October 2000.  The Commission, in turn, by 30 October 2000
compiled a list of the parties contesting the election and of the candidates
contesting the ward elections, certified the party lists and lists for ward
elections, and had the lists available at its local office.  As previously
mentioned the election was held a little more than a month later on 5
December 2000.  The results were determined by the chief electoral officer in
accordance with the formulae contained in Schedule 1 (in the case of

proportional representation elections for local councils) and in schedule 2 (in
the case of proportional representation elections for district councils) of the
Local Government : Municipal Structures Act 117 of 1998 (‘the Structures
Act’).  In the case of the ward elections the candidate who received the most
votes was elected.  Once declared elected the successful candidates, whether
in a ward election or on the basis of a party list, became councillors.  The
right of a successful candidate to become and hold office as a councillor is
guaranteed both by s 21 (1) (b) of the Structures Act and s 19 (3) (b) of the
Constitution.
[7] 
Section 65 of the Municipal Electoral Act, being the section on
which the respondents rely for their contention  that the High Court had no
jurisdiction to entertain the applications, reads as follows –
‘65(1) An interested party may lodge an objection concerning any
aspect of an election that is material to the declared result of the
election with the Commission by serving, by not later than 17:00
on the second day after voting day, at its office in Pretoria a

written notice containing – [I omit the nine paragraphs setting
forth details of what must be contained in the written notice.]

(2)
The Commission, on good cause shown, may condone a late

objection.
(3)
In considering and deciding the objection, the Commission may-
(a)
investigate the factual basis of the objection;
(b)
afford interested parties an opportunity to make written or
verbal submissions;
(c)
call for written or verbal submissions from other persons
or parties;
(d)
call upon the objecting party to submit further information
or arguments in writing or verbally;  and
(e)
conduct a hearing on the objection.
(4)
The Commission must –
(a)
consider the objection and decide it within three days after
it was served on the Commission, and either –
(i)
reject the objection;
(ii)
amend the declared result of the election; or
(iii)
rescind the declared result of the election;  and
(b)
immediately notify the objector and any other parties
involved in the objection, of the decision.
(5)
An objector or other party involved in the objection who feels
aggrieved by the decision of the Commission may, within three
days of the Commission’s decision, appeal to the Electoral Court
in terms of section 20 of the Electoral Commission Act and the
Rules of the Electoral Court.
(6)
The Electoral Court must –

(a)
consider the appeal and either –
(i)
reject the appeal;
(ii)
amend the decision of the Commission; or
(iii)
make another appropriate order; and
(b)
notify the parties to the appeal of its decision.
(7)
The declared result of an election is not suspended by an appeal
to the Electoral Court.’

[8] 
Before considering the arguments advanced in this Court it
is necessary to say something about the Electoral Court to which reference is
made in the section just quoted.  It was established in terms of s 18 of the
Commission Act.  It enjoys the status of a High Court and comprises a judge
of the Supreme Court of Appeal, two High Court judges, plus two other
members appointed by the President.  Its powers,  duties and functions are set
out in s 20.    They include the power to hear reviews and appeals and to
determine its own practice and procedures.  I shall revert to this section later
in this judgment.

[9] 
In the Court below it was contended on behalf of the appellants
that their objection to the selection process adopted by the ANC in the five
instances in question was not an objection ‘concerning any aspect that is
material to the declared result’ and therefore s 65 did not apply.  In this Court,
however, counsel abandoned the point.  I think he was wise to do so.  One
merely has to look at the relief claimed to see that the objection is material to
the declared result.  Indeed, the effect of the relief claimed would be to unseat
the successful candidates who now hold office as councillors.  The expression
‘any aspect of an election’ is clearly wide enough to encompass the objection
in question, particularly when considered in the light of the effect which the
objection would have on the election result.
[10] The principal argument advanced on behalf of the appellants was
that the procedure set forth in s 65 was not mandatory and that the High Court
retained its ordinary inherent jurisdiction to entertain the applications.  In

support of this counsel relied heavily  on the word ‘may’ in ss 1.  Quite
clearly the legislature could not have substituted ‘must’ for ‘may’ as the
intention could hardly have been to compel an interested party to proceed
with an objection against his or her will.  Admittedly, as counsel pointed out,
the subsection could have been worded along the lines of the following ‘an
interested party wishing to object shall lodge etc’,  but the fact that the
legislature could have expressed itself with greater  clarity is hardly decisive
and the word ‘may’ in the context in which it is used does little to advance
counsel’s argument.
[11] Section 65 must not, of course, be viewed in isolation but in its
context in the Act.  It becomes necessary therefore to refer to certain other
provisions of the Municipal Electoral Act.  Section 78(1) provides:
‘(1)
The Electoral Court has jurisdiction in respect of all electoral
disputes and complaints about infringements of the Code, subject
to section 20(4) of the Electoral Commission Act.’

Section 20(4) of the Commission Act reads:

‘(4)
The Electoral Court shall –
(a)
make rules in terms of which electoral disputes and
complaints about infringements of the Electoral Code of
Conduct as defined in section 1 of the Electoral Act, 1993
(Act No 202 of 1993), and appeals against decisions
thereon may be brought before courts of law; and

(b)
determine which courts of law shall have jurisdiction to
hear
particular
disputes
and
complaints
about
infringements, and appeals against decisions arising from
such hearings.’

What is clear is that the jurisdiction conferred on the Electoral Court in terms
of s 78(1) was intended to be exclusive, subject to the power of the Electoral
Court to determine which courts of law would exercise concurrent or
exclusive jurisdiction to hear particular electoral disputes and complaints
about infringements of the Code.  Furthermore, the use of similar language in
s 78(1) of the Municipal Electoral Act and s 20(4) of the Commission Act, viz
‘electoral disputes and complaints about infringements of the Electoral Code’

and the fact that the former section is subject to the latter indicates that the
power of the Electoral Court to determine which courts of law have
jurisdiction in terms of s 20(4) of the Commission Act relates to the matters
referred to in s 78 and not s 65.  The latter section, it will be recalled, is
concerned with ‘objections concerning any aspect of an election that is
material to the declared result.’  Such objections, therefore, cannot be the
subject of a determination in terms of s 20(4) of the Commission Act.
[12] The expression ‘material to the declared result’ makes it clear
that what is contemplated is the adjudication of a dispute after the election
which could have the effect of upsetting the declared result.  The wide
meaning of ‘any aspect of the election’ is further indicative of an intention
that little, if anything, which is material to the declared result is to be
excluded from the ambit of the section.  By contrast, s 78 is concerned with
‘all electoral disputes’  and ‘infringements of the Code’.  What would seem to

be contemplated are disputes and infringements in the course of what Kroon J
called ‘the run-up to the election’ and which would ordinarily be determined
prior to the election.  As far as the code is concerned, it is apparent that its
provisions relate to the regulation of the conduct of parties and candidates in
respect of such matters as their relationship with other candidates and parties,
the press and the electorate.  Any breach would typically be required to be
dealt with as soon as possible in order to put a stop to the conduct complained
of.  (I mention in passing that the Electoral Act 1993 to which reference is
made in s 20(4)(a) of the Commission Act was repealed in 1998 by the
Electoral Act 73 of 1998.  The code of conduct now applicable is contained in
Schedule 2 of the latter Act.  That code is for all intents and purposes
identical to the code contained in Schedule 1 of the Municipal Electoral Act.
I shall revert later to the Electoral Act 1998 and the circumstances in which it
came to be inapplicable to municipal council elections.)

[13] Although not decisive, another indication that s 78 is concerned
with disputes and infringements which are not material to the declared result
is to  be found in subsection 2.  It reads:
‘(2)
If a court having jurisdiction by virtue of section 20(4)(b) of the
Electoral Commission Act finds that a person or party has
contravened a provision of Part 1 of this Chapter, it may in the
interest of a free and fair election impose any appropriate penalty
or sanction on that person or party, including – ’ [What follows
are nine paragraphs in which are listed various penalties and
sanctions ranging from a formal warning to an order cancelling
the registration of a party.]

Part 1 of the Chapter referred to contains a number of prohibitions relating to
the conduct of the election, including a prohibition against failing to comply
with the provisions of the code.  What is significant, however, is that the
penalties and sanctions listed are all consistent with a result not yet having
been declared and, as the subsection suggests, have as their object  ‘a free and
fair election’.

[14] The scheme that emerges from these various provisions is that all
electoral disputes,  infringements of the code and contraventions in relation to
municipal elections which are not material to the declared result are to be
dealt with by the Electoral Court or some other court having jurisdiction in
terms of s 78 of the Municipal Electoral Act.  Ordinarily, but not necessarily,
such matters would be heard and resolved prior to the result of an election
being declared.  Where, on the other  hand,  an objection is lodged concerning
any aspect of an election that is material to the declared result, the procedure
prescribed in s 65 is to be followed.
[15] It is necessary at this stage to refer to the determination made by
the Electoral Court on 4 December 1998 in terms of s 20(4)(b) of the
Commission Act.  (See General Notice 2915 of 1998 contained in
Government Gazette No 19572 of 4 December 1998.)  This, of course, was
prior to the enactment of the Municipal Electoral Act in 2000.  How this came

about is as follows.  The Electoral Act 73 of 1998 was in terms of s 3(c) to be
applicable (in addition to national and provincial elections) also to municipal
council elections, but from a date to be proclaimed.  In the event no date was
proclaimed and instead the Municipal Electoral Act was enacted in 2000.
Section 78 of the latter Act is virtually identical to s 96 of the Electoral Act
1998.  Nonetheless, the point remains that the determination was made in
relation to s 96 of the latter Act and not s 78 of the former.  I shall assume
however, without deciding,  that the determination is applicable to municipal
council elections.
[16] The relevant part of the determination reads as follows:
‘(1)
The Magistrate’s Court and the High Court in whose area of
jurisdiction –
(a)
any electoral dispute; or
(b)
any complaint about an infringement of the Code,
has arisen, have, subject to subrules (2) and (3),
jurisdiction to hear such dispute or complaint.
(2)   The following courts have jurisdiction to impose the following

sanctions referred to in section 96 of the Act:

(a)
The [Electoral] Court, all the sanctions in subsection (2);
(b)
The High Court, all the sanctions in subsection (2) except
(2)(h) and (i);
(c)
The Magistrate’s Court, all the sanctions in subsection (2)
except (2)(d)(vii), (h) and (i) and with regard to the
sanctions in subsection (2)(b) and (c), the Magistrate’s
Court must have regard to its civil jurisdiction.’

It appears from paragraph 2 of the determination that the High Court was not
afforded jurisdiction to impose all the sanctions listed in s 96 (2) of the
Electoral Act 1993 (the equivalent of s 78(2) of the Municipal Electoral Act
quoted in paragraph 13 above).   The sanctions in respect of which it was
granted jurisdiction were quite clearly inappropriate in cases where the relief
sought was material to the declared result of an election.  This much was not
in dispute.  On behalf of the appellant it was pointed out, however, that s
78(2), which lists the sanctions, was concerned only with contraventions of
Part 1 of Chapter 7 of the Act and that those sanctions did not apply to ‘any
electoral dispute’ referred to in s 78(1) and in respect of which jurisdiction

was conferred in paragraph 1(a) of the determination.  (Section 78(1) is
quoted in para 11 above.)  Accordingly, so it was contended, the jurisdiction
conferred on the High Court in terms of para 1 of the determination was not
limited by reference to the sanctions it could impose and that therefore the
High Court had jurisdiction to entertain the applications which were the
subject of the appeal.
[17] There are several answers to this argument.  For one thing, the
wording of the determination would seem to make it clear that the limitation
on the sanctions that may be imposed applies to the jurisdiction referred to in
78(1) of the Municipal Electoral Act which is the jurisdiction conferred in
terms of para 1 of the determination.  But quite apart from the determination,
and for the reasons already advanced, I am of the view that on a proper
construction of the Municipal Electoral Act the phrase, ‘any electoral dispute’

in s 78(1) is to be understood as being limited to disputes which are not
material to the declared result of an election.
[18] Against this background I revert to s 65.  The time limits
imposed on the lodging of objections in ss (1), the consideration of such
objections by the Commission in ss (4) and the noting of an appeal to the
Electoral Court in ss (5) make it clear that what was contemplated by the
legislature was an expeditious procedure to ensure that any dispute affecting
the result of an election was to be resolved with a minimum of delay.
Subsection 5 provides that the appeal to the Electoral Court is ‘in terms’ of s
20 of the Commission Act.  The latter section similarly contains time
constraints.  If, as was submitted by counsel, the High Court retained its
inherent jurisdiction to entertain such an objection the time limits contained in
the section would serve no purpose.  An objecting party would simply bring
his or her case to the High Court.

[19] It is true that the ousting of the jurisdiction of the High Court
will not lightly be inferred.  But it should not be overlooked that the Electoral
Court enjoys the status of the High Court and three of its five members are
required to be judges, one a judge of this Court.
[20] It is also significant that the legislature found it necessary to
make express provision for other courts, i e other than the Electoral Court, to
have jurisdiction in specific instances.  One such example is s 78.  As
previously mentioned, the fact that in terms of s 78 (read with s 20(4) of the
Commission Act) the Electoral Court is afforded the power to determine
which courts of law, other than itself, are to exercise the jurisdiction referred
to in the section is the clearest indication that, subject to that power, the
Electoral Court’s jurisdiction was to be exclusive.  Admittedly s 65 is not
subject to the same power.  However, the obvious inference to be drawn from
this is not that the jurisdiction of the Commission and the Electoral Court

under s 65 was intended to be concurrent with the High Court’s inherent
jurisdiction but that the procedure set out in s 65 was to be followed in all
cases where the result of the election was in issue and that in such matters
other courts of law were not to have jurisdiction.  Another example is s 77.  In
terms of this section the chief electoral officer is empowered to ‘institute civil
proceedings before a court, including the Electoral Court, to enforce a
provision of this Act or the Code’.  It is also  interesting to note that s 55 of
the Electoral Act 1998, which is the equivalent of s 65 of the Municipal
Electoral Act, provides for a similar procedure culminating in an appeal to the
Electoral Court.   The wording is however different and permits of no doubt
that the procedure described therein is mandatory in cases where the objection
concerns ‘any aspect of an election that is material to the final result of the
election.’

[21] In the result I am satisfied that the procedure set out in s 65 of
the Municipal Electoral Act is intended to be mandatory and that the High
Court  accordingly has no jurisdiction to entertain objections of the kind
referred to therein.
[22] The appeal is dismissed with costs including the costs
occasioned by the employment of two counsel.

D G SCOTT
JUDGE OF APPEAL

CONCUR:

VIVIER

ADP
OLIVIER
JA
CAMERON
JA
BRAND

JA