African Christian Democratic Party v Electoral Commission and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, O'Regan J, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 24 February 2006
• Citation: 2006 (3) SA 305 (CC)
• Docket Number: CCT10/06
• Hearing Date: 23 February 2006
• Counsel: I Jamie SC (with M Osborne) for the applicant. J C Heunis SC for the respondents.
• Court: Constitutional Court

O'Regan J: A

[1] This is an urgent application for leave to appeal against a judgment of the Electoral Court delivered on 15 February 2006 [1] in which the Electoral Court refused to interfere with a decision by the Electoral Commission excluding the applicant, the African Christian Democratic Party, from contesting the B imminent local government elections to be held in the Cape Town Metropolitan Council. The matter is clearly one of great urgency as the elections are due to be held in less than a week's time, on 1 March 2006. This judgment has therefore been prepared in haste.

[2] The application was lodged in this Court on 20 February 2006 and, on 21 February 2006, the first respondent lodged a C notice of intention to oppose the application. On 22 February this Court enrolled the matter for an urgent hearing on 23 February at 15:00. At the end of the hearing the Court requested the Electoral Commission to furnish an affidavit by noon on 24 February indicating whether it would be possible to hold elections in the Cape D Metropolitan Council as planned on 1 March 2006 if relief were ordered in favour of the applicant. The Commission lodged its affidavit timeously on 24 February, indicating that, although it would create significant difficulties for the Commission and would place the elections at risk, such an order would not render the holding of the E elections impossible. The Court is indebted to the Commission for its timely filing of the affidavit and for the positive and candid manner in which it informed the Court of the position. The Court also asked the applicant to file an affidavit in response to the Commission's affidavit by 16:00 today. That affidavit, too, has been filed. We are grateful also for the applicant's assistance. F

[3] The crisp issue we must decide is whether the Electoral Commission's decision not to certify the applicant and its candidates, effectively disqualifying them from contesting the election in the Cape Metropolitan area, should be reviewed and set aside. The Electoral Commission reached its decision on the ground that the applicant had G not paid the prescribed deposit in terms of ss 14 and 17 of the Local Government: Municipal Electoral Act 27 of 2000 (the Municipal Electoral Act).

[4] Section 14(1) of the Municipal Electoral Act provides as follows:

'Requirements for parties contesting election by way of party lists H

(1) A party may contest an election in terms of s 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 office of the Commission's local representative -

(a)

in the prescribed format -

(i)

a notice of its intention to contest the election; and

(ii)

a party list; and I

(b)

a deposit equal to a prescribed amount, if any, payable by means of a bank guaranteed cheque in favour of the Commission.' J

O'Regan J

Section 17 of the Act provides as follows: A

'Requirements for ward candidates to contest election

(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 office of the Commission's local representative by not later than a date stated in the timetable for the election.

(2) The following must be attached to a nomination when the nomination is submitted to the Commission: B

(a)

In the case of an independent ward candidate, a prescribed form with the signatures of at least 50 voters whose names appear on the segment of the voters' roll for any voting district in the ward;

(b)

a prescribed acceptance of nomination signed by the ward candidate; C

(c)

a certified copy of the page of the candidate's identification document on which the candidate's photo, name and identity number appear; and

(d)

a deposit equal to a prescribed amount, if any, payable by means of a bank guaranteed cheque in favour of the Commission.

(3) The Commission must accept a nomination submitted to it and allow the nominated person to stand as a candidate in the ward if s 16(1) and ss (1) and (2) of this section have been complied with.' D

[5] It is plain from these provisions that no political party and no ward candidate may contest an election unless it has paid the prescribed deposit by the deadline set by the Electoral Commission. In this case, the deposit prescribed to contest elections in metropolitan areas was R3 000. E

[6] Local government elections are to be held in all 283 municipalities in South Africa on 1 March 2006. Elections were last held on 6 December 2000 and, according to the provisions of the Constitution [2] and the Local Government: Municipal Structures Act, [3] must be held by not later than 6 March 2006. On 6 January 2006, the Electoral Commission published the timetable for the 2006 local government elections. According to the timetable for the elections, the prescribed F date and time for compliance with the provisions of ss 14 and 17 of the Municipal Electoral Act was 17:00 on 19 January 2006. [4]

O'Regan J

[7] The question that arises for consideration is whether the applicant did pay a deposit as contemplated by ss 14 and 17 in respect A of the Cape Town Metropole. It is common cause that the applicant both lodged a party list and nominated ward candidates timeously, on 19 January 2006, at the Cape Town offices of the Electoral Commission, but that no deposit was paid at the Cape Town office. It is also common cause that a bulk payment of R283 000 was made by the applicant by way B of bank- guaranteed cheque [5] to the National Office of the Electoral Commission in Pretoria, on 17 January 2006, in respect of a range of municipalities indicated on a list accompanying the bulk payment and that the Cape Town Metropolitan area was not included in that list. Finally, it is common cause that the omission of the Cape Town Metro from the list was an error on C the part of the applicant.

[8] The facility for centralised payments was introduced by the Electoral Commission for this set of elections, although no regulations or legislation governing the system was promulgated. The system permitted a political party contesting more than one municipality to furnish one bank-guaranteed cheque in respect of all the deposits due D in relation to the municipalities it was contesting to the Electoral Commission office in Pretoria. The system was discussed and explained at meetings of Party Liaison Committees [6] convened by the Electoral Commission with representatives of the political parties contesting the elections. E

[9] In response to the bulk payment, the Electoral Commission wrote to the applicant stating that 'we confirm that the Electoral Commission has received a bank guaranteed cheque in the amount of R283 000. We further confirm that the amount paid covers the election deposits in respect of the attached municipalities.' F

[10] Between making the bulk payment on 17 January, and the deadline for the filing of notices to contest elections and party lists on 19 January, the applicant decided not to contest some of the municipalities in respect of which it had paid the bulk deposit. Although it did not write to inform the Electoral Commission of this fact, it did not lodge notices to contest elections in those areas nor G did it lodge party lists. On 19 January, therefore, when the deadline passed, the Commission was holding an amount of R10 000 on behalf of the applicant which had not been specifically allocated as a deposit in respect of any contested municipality. H

O'Regan J

[11] On 24 January 2006, the applicant was informed by the Electoral Commission's Cape Town office that it had not received a A deposit in respect of the Cape Metro Council. The applicant then informed the Electoral Commission that it had a surplus of funds for the payment of deposits as a result of the bulk payment made on 17 January, but the respondent indicated that it would not allocate those funds as a deposit for the Cape Town Metro. On 27 January, B the applicant's representative met with officials from the Electoral Commission to seek to resolve the matter, without success. The Electoral Commission's view was that the provisions of ss 14 and 17 are peremptory and that it did not have the power to condone non-compliance with the provisions. C

[12] The applicant then launched proceedings in the Electoral Court on 1 February 2006. We were informed from the bar that the Electoral Court did not hold a hearing but received written submissions from the Electoral Commission and the applicant. The Electoral Court handed down a written judgment on 15 February dismissing the applicant's complaint. It is against that judgment that the applicant D now appeals.

[13] It will be helpful to bear in mind the provisions of the Electoral Commission Act which determine the powers of the Electoral Court in disputes of this sort. Section 20 of the Electoral Commission Act 51 of 1996 provides as follows: E

'(1) (a) The Electoral Court may review any decision of the Commission relating to an electoral matter.

(b) Any such review shall be conducted on an urgent basis and be disposed of as expeditiously as possible. F

(2) (a) The Electoral Court may hear and determine an appeal against any decision of the Commission only insofar as such decision relates to the interpretation of any law or any other matter for which an appeal is provided by law.

(b) No such appeal may be heard save with the prior leave of the chairperson of the Electoral Court granted on application within the period and in the manner determined by that Court. G

(c) Such an appeal should be heard, considered and summarily determined upon written submissions submitted within three days after leave to appeal was granted in terms of para (b). H

. . . '

[14] The first question...