REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT, BLOEMFONTEIN

CASE NO:003/11 IEC

In the matter between:

AFRICAN CHRISTIAN DEMOCRATIC PARTY

Applicant

and

THE ELECTORAL COMMISSION

Respondent

Neutral Citation: African Christian Democratic Party v The Electoral
Commission (Case no 003/11 IEC) [2011] ZAEC 2 (20 April 2011)
______________________________________________________________

J U D G M E N T
______________________________________________________________

MASIPA, J:

INTRODUCTION

[1] The applicant, by way of review, sought to set aside a decision of the
respondent (Commission) not to place the applicant’s name on the list of
registered parties entitled to contest the election in the Umhlabuyalingana
Municipality on 18 May 2011. The applicant also sought ancillary relief and
costs.

[2] The relief sought as set out in the notice of motion is the following:

“5.
The Respondent’s decision … is reviewed and set aside.

6.
The Respondent is ordered to take all such consequent steps as
are necessary, in order to enable the Applicant to contest the
elections, including:

a.
allocating surplus funds in its possession from the
Applicant, as a deposit in terms of sections 14(1)(b) and
17(2)(d) of the Electoral Act to contest the elections;

b.
forthwith placing Applicant’s name on the list of registered
parties entitled to contest the election;

c.
forthwith placing the name of Applicant’s candidates for
the various wards on the final list of candidates of the
Umhlabuyalingana local government election;

d.
ensuring that all ballot papers reflect the result of the
orders set out above, alternatively to the extent that the
ballot papers have already been printed, to print forthwith
ballot papers reflecting the result of the orders set out
above.”

[3] Because of the urgency of the matter an order was granted setting the
decision of the Commission aside and granting the ancillary relief sought and
reasons were to follow later. These are the reasons.

BACKGROUND

[4] National Government Local Elections are to take place on 18 May
2011.  25 March 2011 is the deadline for political parties and ward candidates
to convey their intention to contest the elections and they have to do this in
terms of ss 14 and 17 of the Local Government:  Municipal Electoral Act No.
27 of 2000 (“the Act”).

[5] In terms of s 14 a party may contest an election by way of party lists
submitted to the Commission’s local representative. A notice of intention to
contest the election together with a party list and the prescribed deposit have
to be submitted no later than the date stated in the election timetable.

[6] In terms of s 17 a person may contest an election as a ward candidate
if he or she is nominated on a prescribed form submitted to the Commission’s
local office by no later than a date stipulated in the election timetable
accompanied inter alia by the prescribed deposit.

[7] It is common cause that relevant documents and the requisite deposit
were submitted to the Commission by the applicant before the cut-off time of
17h00 on 25 March 2011.  Also common cause is that when submitting party
lists the applicant mistakenly filled the designated number of a wrong
municipality.

THE ISSUE

[8] The issue, therefore, is whether there was proper compliance with the
provisions of ss 14 and 17 of the Act notwithstanding the error above.

THE FACTS

[9] To get a proper perspective of the issues it is necessary to briefly set
out facts gleaned from the supporting affidavit of the applicant.  Jo-Ann
Downs deposed to the affidavit on behalf of the applicant.  There is no
opposing affidavit from the Commission.

[10]  On 23 March 2011 Marlene Briel, the applicant’s National Election
Manager, took a bank guaranteed cheque in the amount of R309 500,00 to
the Commission.  Briel had lists from each province which indicated all the
municipalities that the applicant was contesting, and which payment related
to. The list from KwaZulu-Natal had been sent via sms to Briel and only
included municipal designation numbers, not the full names of the
municipalities. At the Commission’s offices Briel had to fill in a form that
indicated which municipalities were being competed in.  This was done by
simply inserting the relevant municipal designation number (e.g. KZN 271) for
each of the municipalities.

[11]  Briel had to complete the form by filling in all the metropolitan, local and
district municipalities that the applicant was competing in. She took the details
from the list that had been prepared by the applicant and then filled in the

relevant form by hand. This form was duly submitted and then electronically
captured by S Whiten, a Commission official.

[12]  Unbeknown to Briel she had unwittingly written the number for
Umhlabuyalingana Municipality as KZN 274 which is Hlabisa (which the
applicant had never intended contesting) instead of KZN 271, the designated
number for Umhlabuyalingana.

[13]  As a result of the above error the Commission allocated payment for
Hlabisa and not Umhlabuyalingana.

[14]  On 31 March 2011 the Commission informed the applicant that it
appeared that no deposit had been received for the Umhlabuyalingana
Municipality.  When the matter was investigated the applicant realised its
mistake.

[15]  On 1 April 2011 the applicant addressed a letter to the Commission
explaining what had occurred and requesting that the error be corrected and
that the deposit allocated to Hlabisa be re-allocated to Umhlabuyalingana.  A
copy of the letter is marked Annexure “JD3”.

[16]  The same afternoon a fax addressed to the applicant came through
indicating that “the framework does not allow for flexibility, we are therefore
unable to assist in rectifying the situation”.  A copy of the letter is marked
Annexure “JD4”.

[17]  Subsequent efforts to negotiate and to find a solution proved fruitless.
On Sunday afternoon, 3 April 2011, an email from the Commission was
addressed to the applicant. It read:

“I write to confirm that the IEC is regrettably not in a position to change
the allocations of payments after the cut-off date.”

A copy of the email is marked Annexure “JD6”.

THE LAW AND ITS APPLICATION

[18]  It is difficult to understand the response “the framework does not allow
for flexibility …” when the Commission’s conduct in the past has shown just
the opposite.

[19]  The Commission has interpreted the Electoral Act to allow it to create a
central deposit system, by which all payments to compete in municipalities
can be paid centrally to the Commission.  The Constitutional Court in ACDP v
Electoral Commission  2006 (3) SA 305 (CC) (the ACDP case) lauded this
step as being in accordance with a broad, purposive interpretation of ss
14(1)(b) and 17(2)(a) of the Electoral Act.

[20]  It was submitted, correctly in my view, that the Commission was
compelled, when interpreting the Electoral Act and carrying out its duties in

terms thereof, to adopt an interpretation which favours enfranchisement rather
than disenfranchisement.
[21]  This approach was discussed in August and Another v Electoral
Commission and Others 1999 (3) SA 1 (CC) (1994 (4) BCLR 363) in para [17]
where the following was stated:

“Rights may not be limited without justification and legislation dealing
with the franchise must be interpreted in favour of enfranchisement
rather than disenfranchisement.”

[22]  It is, therefore, clear that in interpreting any provisions of the Act the
purpose thereof must be borne in mind.

[23]  In the ACDP case where the interpretation of the very same provisions
was in issue in the Constitutional Court the court said the following:

“[31]  Of crucial relevance also is the underlying statutory purpose of ss
14 and 17 which appears to be to ensure that candidates and political
parties contesting elections declare their intentions to do so by a
certain date and provide the Electoral Commission with the necessary
information to enable them to organise the elections. The payment of
an electoral deposit ensures that the participation of political parties
and candidates in the elections is not frivolous. The payment of the
deposit is complementary to the key notification required for organising
the elections, namely, the notification of the intention to participate and
the furnishing of details of candidates.”  (See para [31]) at 319.)

[24]  In the present case the applicant lodged the notice of intention to
contest the election timeously. It also lodged the party list with the local office

of the Commission. In addition it lodged a deposit in a bank guaranteed
cheque in the amount of R309 500,00 to the Commission on 23 March 2011,
two days before the stipulated deadline of 17h00 on 25 March 2011.

[25]  It is clear from the papers that when Ms Briel inserted municipal
designated numbers instead of the full names of the municipalities she
inserted KZN 274 instead of KZN 271 and this was a genuine mistake.  It is
common cause that KZN 274 is the Hlabisa Municipality which the applicant
never intended contesting.

[26]  The applicant argues that it fully complied with ss 14 and 17 and states
that it was unaware that there was any problem relating to its documents or
deposit until 31 March 2011.  It learnt for the first time that late afternoon that
as far as the Commission was concerned no deposit had been received for
the Umhlabuyalingana Municipality elections.  It was only then that the
applicant realised that there had been a clerical error when on the form KZN
274 was inserted instead of KZN 271.

[27]  No opposing papers have been filed by the Commission so there is no
explanation for the stance that it took that the “framework does not allow for
flexibility” when the Constitutional Court has already ruled on the issue. It is
also not clear what prejudice would be suffered by either the Commission or
other interested parties if there was a re-allocation of the surplus funds
already deposited with the Commission.

[28]  The applicant states that both Umhlabuyalingana and Hlabisa are
municipalities.  Since the prescribed amount for local municipalities is R2
500,00, an amount which is already in possession of the Commission, there
would be no disruption in the Commission’s administration if a relocation of
the funds concerned was made.

[29]  The purpose of ss 14 and 17 has been clearly set out in the ACDP
case supra as to ensure that a deposit is paid by a political party (or ward
candidate) to establish that it has a serious intention to contest the election.

[30]  The facts of the present case as set out above show without doubt that
there was a serious intention on the part of the applicant to contest the
elections in the Umhlabuyalingana Municipality.

[31]  The applicant contends that it has spent much time and effort creating
an electoral presence in the above municipality. It states that although in the
past it has not competed in this municipality it is optimistic that through its
efforts, together with a strong set of candidates, it will be able to win seats in
the Municipal Council.  There is no reason to doubt this contention.

[32]  From the facts it is clear that the applicant indicated its intention to
contest the elections prior to the cut-off deadline of 17h00. In fact it submitted
all the required documents to compete in those elections including the
notification of its intention to participate by 11h35 on 25 March 2011. In

addition it had deposited the necessary funds with the Commission on 23
March 2011.

[33]  In view of the above it seems to me that the Commission’s refusal to
allocate the duly deposited funds to Umhlabuyalingana especially when it is
clear that the applicant had not intended at all to contest elections in Hlabisa
was a decision that did an injustice to the right to vote and the applicant’s right
to participate in the local elections in terms of section 9 of the Constitution.

[34]  A proper interpretation of ss 14 and 17 is the one consistent with our
constitutional values. It is evident that the Commission overlooked the central
purpose of these provisions when it interpreted them narrowly.

[35]  In the circumstances the interpretation of ss 14 and 17 of the Municipal
Electoral Court by the Commission is not correct. Its decision, therefore, ought
to be set aside.

[36]  The Electoral Court, having considered the application lodged by the
applicant, the supporting documents and the urgent nature of the matter, has
come to the conclusion that, in the exercise of its power under Rule 11, it
would be appropriate in the circumstances, to issue the following order:

1.
The decision of the respondent on 3 April 2011 refusing to
allocate an already paid deposit by the applicant to cover
contesting elections in the Umhlabuyalingana Municipality is
hereby reviewed and set aside.

2.
The respondent is directed to allocate the said deposit of the
applicant to the election of Umhlabuyalingana Municipality.

3.
It s declared that the applicant has complied with the provisions
of ss 14 and 17 of the Local Government Municipal Electoral Act
27 of 2000, and is therefore entitled to contest the legal
government elections to be held in the Umhlabuyalingana
Municipality on 18 May 2011.

4.
The Electoral Commission is ordered to take all reasonable
steps forthwith to give effect to this order so as to enable
applicant
to
properly
contest
the
election
for
the
Umhlabuyalingana Municipality, including:

(a)
Placing applicant’s name on the list of registered parties
entitled to contest the election;

(b)
placing the names of candidates of the applicant for the
various wards on the final list of candidates for the
Umhlabuyalingana local government elections;

(c)
ensuring that all ballot papers printed reflect the
applicant’s and its candidates respectively.

________________________________
MASIPA J

JUDGE OF THE ELECTORAL COURT

CONCURRED:
MTHIYANE JA
PILLAY J

Date: 20 April 2011