REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT, BLOEMFONTEIN

CASE NO:  001/22EC
Not Reportable

In the matter between:

AFRIKAANS KLEURLING BEWUSTHEIDS
PARTY (AKBP) OBO UBUNTU & EMTHANJENI
LOCAL COMMUNITY

Applicant

and

THE ELECTORAL COMMISSION
OF SOUTH AFRICA

First Respondent
THE MINISTER OF CO-OPERATIVE
GOVERNANCE AND TRADITIONAL
AFFAIRS NCPG
MR BENTLEY VAN ROOY

Second Respondent
THE MUNICIPAL ELECTORAL OFFICER
MR RUSSEL VAN ROOY

Third Respondent
THE AFRICAN NATIONAL CONGRESS PARTY
MR SOUTIE WELDON KOK & OTHERS

Fourth Respondent
THE DEMOCRATIC ALLIANCE
MS MARIA BAADJIES & OTHERS

Fifth Respondent
THE ECONOMIC FREEDOM FIGHTERS
MR G STEENKAMP & OTHERS

Sixth Respondent
THE NEW INDEPENDENT CANDIDATE
MR ANGELO BOOYSE
TOGETHER WITH OTHER ILLEGAL OCCUPIERS
Seventh Respondent

Neutral Citation: Afrikaans Kleurling Bewstheids Party (AKBP) and Another v IEC and
Others (Case no 001/22 EC) [2022] ZAEC 5 (29 March 2022)
Coram: MBHA JA, MODIBA J and SHONGWE AJ and MS PATHER and PROFESSOR
NTLAMA-MAKHANYA (Members)

JUDGMENT

MBHA JA (MODIBA JA and SHONGWE AJ and MS PATHER and PROFESSOR
NTLAMA-MAKHANYA (Members) concurring):

[1] The applicant, the Afrikaans Kleurling Bewustheids Party, registered as a political
party on 14 February 2020. It was therefore eligible to contest the 2021 general local
government elections (2021 GLGE) to elect municipal councils in municipalities
countrywide, specifically in the Ubuntu and Emthanjeni local municipalities (the
municipalities), in the Northern Cape. It purports to be acting herein 'on behalf of the
Ubuntu and Emthanjeni local community'.

[2] The applicant seeks a mandatory order directing the respondents to 'rescind' from
posts officially inaugurated in the Ubuntu and Emthanjeni council. The relief sought is
expanded or further explained in the founding affidavit where the applicant prays for an
interim order, for the dismissal or cancellation of the inaugurated municipal council, and
for dissolution of the entire municipality. This dissolution is sought so that national
government can implement a recovery plan that will, inter alia, enhance service delivery
at local government level.

[3] The applicant's cause of complaint is the alleged misconduct and contravention
of the Electoral Code of Conduct (the Code) by the respondents, ie the Independent
Electoral Commission (the IEC), the presiding officers, the municipal electoral officer and
political parties; namely, the African National Congress (ANC), Democratic Alliance (DA),
Economic Freedom Fighters (EFF) and the New Independent Candidate (NIC), which
contested the election. In this regard, the applicant avers that the ANC unlawfully
registered a lot of youngsters online, whether disabled or not, as special votes 'which
ultimately enabled it to win the election in the municipalities'. Furthermore, the other
parties contravened the Code by unlawfully pitching tents and tables at or near voting
stations, thus unduly influencing votes.

[4] Mr Benjamin Andries de Bruin, the applicant's President who deposed to the
founding affidavit avers that he duly lodged formal complaints with the presiding officers.
However, the IEC never acted on the complaints and in fact displayed bias towards the

applicant by failing to act and curb corruption and failing to uphold the Code and the rule
of law.

[5] The IEC has responded stating that the applicant failed to comply with the
provisions of ss 141 and 172 of the Local Government: Municipal Electoral Act 27 of 2000
(the MEA) by not submitting party lists of candidates and not nominating any candidates,
respectively. In relation to the complaints, the IEC states:
(a) The objections were lodged by the applicant's deponent in terms of s 51(3)3 of the
MEA at four voting stations within the Ubuntu Local Municipality.
(b) The presiding officers summarily investigated the factual circumstances underlying
the objections and decided the objections. Thereafter, they recorded their decisions on
the written objection and then verbally informed Mr de Bruin and any other parties
involved in the objection of the decision.
(c) With particular reference to the Kappertjie Gemeenskapsaal, Victory West High
School and the AME Church voting stations in ward 4, the decisions by the presiding
officers and the municipal electoral officer, were that the occurrences complained of were
outside the boundaries of the voting stations. Further in this regard, Mr de Bruin was
advised to liaise with security agents ie the police regarding issues that allegedly arose
outside of the boundaries of the voting stations.

[6] Even before I consider the merits, this application is materially defective in various
ways, each of which has fatal consequences. I examine each in turn:
(a) The applicant did not contest the 2021 GLGE as it did not comply with ss 14 and 17
of the MEA. It is not clear in what capacity the applicant has brought this application. To
compound this problem even further, the applicant has purported to bring the application
'on behalf of the Ubuntu and Emthanjeni Community'. Clearly the applicant has sought to

1 Section 14 of the MEA with the heading 'Requirements for parties contesting election by way of
party lists' provides:
'(1) A party may contest an election in terms of section 13(1)(a) or (c) only if the party by not later
than a date stated in the timetable for the election has submitted to the Commission–

(a) in the prescribed format and signed by the party's duly authorised representative–

(i) . . .

(ii) a party list. . . .’
2 Section 17 of the MEA, with the heading 'Requirements for ward candidates to contest election'
provides:
(1) A person may contest an election as a ward candidate only if that person is nominated on a
prescribed form and that form is submitted to the Commission by not later than a date stated in
the timetable for the election.'
3 Section 51(3) of the MEA provides that:
'An agent or ward candidate, or a voter, may object to any conduct, other than that mentioned in
subsection (1), (1A) or (2), or an officer, an agent, or any other person present at a voting station.'

bring the application in the community's interest and not its own. However, the said
community is not a legal person and thus has no capacity to institute legal proceedings
in its own name unless an enabling order was accordingly sought and granted by a
competent court. It bears further mentioning that no reliance was placed on s 384 of the
Constitution of the Republic of South Africa for authority to bring these proceedings on
behalf of the community. Most importantly, neither the applicant nor the Ubuntu and
Emthanjeni local community were parties to Mr de Bruin's s 51(3) objection, and cannot
therefore claim any relief to that objection, even if any were available.
(b) I have earlier in the opening paragraphs of this judgment tried to decipher the actual
relief sought in this application. What is sought in the Notice of Motion is completely
different to the relief asked for in the founding affidavit. In my view, the relief sought is not
only incoherent and obscure, but is also practically incompetent. It is not at all clear
whether the applicant seeks to review or appeal the decisions of the presiding officers
and the municipal electoral officer relating to the objections in terms of s 51 of the MEA.
(c) In terms of s 22(5) of the Local Government: Municipal Structures Act 117 of 1998
(the Structures Act), an elected councillor is deemed to assume office on the date of the
declaration of the results of an election by the IEC. The term of a municipal council, in
terms of s 24(1) of the Structures Act, is five years calculated from the day following the
date set for the previous election of all municipal councils.

[7] Importantly, a municipal council may only be dissolved in limited circumstances
by the relevant provincial executive in terms of s 139(1)(c) of the Constitution. This can
only happen where a municipality cannot or does not fulfil an executive obligation in terms
of the Constitution or relevant legislation. Section 139(5)(b) also empowers the relevant
provincial executive to dissolve a municipal council if the municipality is in a financial
crisis or in serious or persistent material breach of its obligations to provide basic services
or to meet its financial obligations.

[8] Clearly, no case as aforementioned has been made warranting the intervention
by the relevant provincial executive. In any event, no court has the power to dissolve a
municipal council. This Court has only the powers expressly granted to it by the Electoral
Commission Act 51 of 1996. The relief sought in this application is accordingly totally
incompetent.

4 Section 38 of the Constitution provides that anyone listed in this section has the right to approach
a competent court alleging that a right in the Bill of Rights has been infringed or threatened. Such
persons include anyone acting as a member of, or in the interest of a group or class of persons,
and anyone acting in the public interest.

[9] Finally, the application is fatally defective due to non-joinder of parties having a
substantial interest in these proceedings. Although the applicant in essence seeks the
dissolution of the two sitting councils in the municipalities, these have not been cited nor
served with the application papers. Neither have political parties, which participated in
the election, been properly cited in their legal capacities as such. The applicant has only
cited what appears to be individuals who formed part of these parties candidates' lists
and in respect of the Ubuntu Local Municipality only. It cannot simply be assumed that
these individuals possess the necessary authority to defend legal proceedings on behalf
of their respective political parties.

[10] As far as the merits are concerned, the entire averments by the IEC are not
disputed in any way. In fact, the applicant refers, erroneoulsy it appears, to some
indebtedness sounding in money. It follows that based on the Plascon-Evans rule,5 the
IEC's version must prevail. I need also point out that in so far as the complaint of the ANC
alleging registering minors as special votes is concerned, there was a material failure by
the applicant to comply with the provisions of s 65(1) of the MEA requiring that an
objection must be material to the result of an election.

[11] The members of the Court unanimously agreed that no oral hearing was
warranted in this application and that it should be disposed of on the papers filed on
record.

[12] In the circumstances the following order is made:
1 The application is dismissed.
2 There is no order as to costs.

B H MBHA
CHAIRPERSON
OF THE ELECTORAL COURT
29 March 2022

5 Plascon-Evans Paints Ltd. v Van Riebeeck Paints (Pty) Ltd. 1984 (3) SA 623 (A). This rule holds
that in motion proceedings when factual disputes arise in circumstances where the applicant seeks
final relief, the relief should be granted in favour of the applicant only if the facts alleged by the
respondent in its answering affidavit, read with the facts it has admitted to, justify the order prayed
for . . . Where it is clear that facts, though not formaly admitted, cannot be denied, they must be
regarded as admitted.