African National Congress v Democratic Alliance and Another

• Jurisdiction: South Africa
• Judge: Hellens AJ
• Judgment Date: 04 April 2014
• Citation: 2014 (3) SA 608 (GJ)
• Docket Number: 11535/2014
• Hearing Date: 27 March 2014
• Counsel: PG Malindi SC for the applicant. I Jamie SC (with D Borgström) for the first respondent.
• Court: Gauteng Local Division, Johannesburg

Hellens AJ:

Introduction B

[1] On 27 March 2014 the African National Congress (hereinafter referred to as the ANC or the applicant) brought an application against the Democratic Alliance (hereinafter referred to as the DA or the first respondent) and the Independent Electoral Commission of South Africa C (hereinafter referred to as the IEC).

[2] The ANC, through its secretary-general, deposed to an affidavit on behalf of the ANC in his capacity as secretary-general. The ANC describes itself as a liberation movement, founded and operating in accordance with its constitution and having the power to sue and be sued in its own D name. It is a registered political party in terms of s 26 of the Electoral Act 73 of 1998 (the Electoral Act). The first respondent is the DA, which is a registered political party in terms of the Electoral Act.

[3] The chairperson of the IEC is also cited although no relief is sought against the IEC. The IEC is cited in this matter solely by virtue of the interest that the IEC has, or may have, in the outcome of this matter. The E IEC has not participated in the proceedings.

[4] The ANC seeks an order against the DA —

[4.1]

Declaring that the dissemination of a text message via mobile phone bulk short message service (the SMS), by or on behalf of F the first respondent, which reads 'the Nkandla report shows how Zuma stole your money to build his R246m home. VOTE DA on 7 May to beat corruption. Together for change', amounts to a publication of false information in contravention of s 89(2)(c) of the Electoral Act; and

[4.2]

Declaring the dissemination of the SMS, by or on behalf of the G first respondent, which reads 'the Nkandla report shows how Zuma stole your money to build his R246m home. VOTE DA on 7 May to beat corruption. Together for change', amounts to a publication of a false allegation in contravention of item 9(1)(b)(ii) of sch 2 to the Act, the Electoral Code of Coduct (the Code) read with s 94 of the Electoral Act.

[4.3]

H Interdicting and restraining the DA from further disseminating or distributing the SMS.

[4.4]

Directing the DA to retract forthwith the SMS by despatching, at its own cost, a new text message via the mobile phone bulk short I message service to all earlier recipients of the SMS, stating that:

'The Democratic Alliance (DA) unreservedly retracts the SMS message despatched to you earlier which falsely stated that President Zuma stole R246m to build his home. The said SMS constitutes a violation of the Electoral Code and the Act. The DA apologises to the African National Congress (ANC) for J any inconvenience caused and recommits itself to the letter and

Hellens AJ

spirit of the Electoral Act and the Code or containing such A formulation as the Court may deem fit in the circumstances.'

[4.5]

Costs of two counsel is sought, as is an order effectively declaring this matter to be an urgent application.

Jurisdiction B

[5] The applicant, the ANC, claims that this court has jurisdiction in terms of s 20(4)(b) of the Electoral Commission Act 51 of 1996 read with the electoral court's determination, published in Government Gazette 19572 under GN 2915 of 4 December 1998, proclaiming the 'Rules Regulating Electoral Disputes and Complaints About Infringements of the Electoral C Code of Conduct in Schedule 2 of the Electoral Act, 1998 (Act 73 of 1998) and Determination of Courts Having Jurisdiction'.

[6] Section 20(4) of the Electoral Commission Act provides:

'The Electoral Court shall — D

(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 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 E particular disputes and complaints about infringement, and appeals against decisions arising from such hearings.'

[7] Rules regulating electoral disputes and complaints about infringements of the Electoral Code of Conduct (the Code) provided for in sch 2 of the Electoral Act, and the determination of courts having jurisdiction, were promulgated under GN 2915 of 1998 in Government Gazette 19572. F

[8] Those rules, provided under the heading 'Determination of courts and jurisdiction', are the following:

'(1) The Magistrate's Court and the High Court in whose area of jurisdiction — G

(a)

any electoral dispute; or

(b)

any complaint about an infringement of the Code has arisen, have subject to sub-rules (2) and (3), jurisdiction to hear such dispute or complaint.

(2) The following courts have jurisdiction to impose the following H sanctions as referred to in Section 96 of the Act:

(a)

the Court, [ie the electoral court] all the sanctions in subsection 2;

(b)

the High Court, all the sanctions in subsection (2) except (2)(h) and (i); . . . .'

[9] Section 96(2)(h) and (i) relate to an order disqualifying the candidature of that person or of any candidate of that party (s 2(h)), and an I order cancelling the registration of that party (s 96(2)(i)).

[10] Thus, this court has jurisdiction 'in the interest of a free and fair election' to impose any appropriate penalty or sanction upon a person or registered party that has contravened a provision of part 1 of ch 7 of the Electoral Act. J

Hellens AJ

A [11] The application is brought by the ANC in terms of rule 4 of the Electoral Court Rules, read together with the Uniform Rules of the High Court where appropriate. There is a prayer that the matter be heard as a matter of urgency as provided by rule 4(10) of the Rules of the Electoral Court, which provides very similar provisions to the provisions B of rule 6(12) of the Uniform Rules of the High Court. Reference is also made by the applicant to the provisions of rule 4(9) which allows for the extension or curtailment of the normal periods provided for in the Rules of the Electoral Court.

The powers of this court

C [12] During the argument of this matter I raised the question whether this court in hearing this matter was functioning as —

[12.1]

an electoral court, with those powers bestowed upon it in terms of ss 96(2)(a) – (g) of the Electoral Act 73 of 1998 (the Electoral Act);

[12.2]

D a high court, with its ordinary inherent powers and those in terms of the Superior Courts Act 10 of 2013; or

[12.3]

both an electoral court and a high court, with the powers of both those courts.

E [13] This issue was addressed by both the applicant and the first respondent in supplementary heads of argument. Having considered those arguments, I am of the view that that which I set out below is the correct analysis of the powers of this court and of the function that it performs. The following appears from a reading of the Electoral Act, the Electoral Commissions Act 51 of 1996 (the EC Act), and the rules under F the EC Act: [1]

[13.1]

The electoral court is the final arbiter of disputes regarding alleged violations of s 89 of the Electoral Act, and the Code. [2]

[13.2]

However, in terms of the rules, the electoral court may only be approached as a court of first instance when a violation of the G Electoral Act and/or the Code might justify a sanction in terms of ss 96(2)(h) and (i) of the Electoral Act — being '(h) an order disqualifying the candidature of that person or of any candidate of that party'; or '(i) an order cancelling the registration of that party'.

[13.3]

H In other matters (ie which only justify a lesser sanction than those in ss 96(2)(h) and (i)), the high court or magistrates' court in the area of jurisdiction in which the alleged violation arose has jurisdiction to hear any resulting case.

[13.4]

When a matter of this kind comes before a high court as a court I of first instance, it has the power to impose all sanctions in

Hellens AJ

terms of s 96(2) of the Electoral Act, save for those in A ss 96(2)(h) and (i).

[13.5]

Furthermore, in such cases an appeal lies to the electoral court (with the leave of the high court, or failing that, the leave of the chairperson of the electoral court).

[14] Based on this scheme, a proper understanding of the powers of this B court is as follows:

[14.1]

This court hears matters such as the one at hand as the high court, and not as an electoral court. In other words, the jurisdiction of the high court is extended (pursuant to s 96(2) of the Electoral Act, read with s 20(4)(b) of the EC Act and the C rules) to allow it to hear such cases. The high court does not, however, become an electoral court for these purposes.

[14.2]

An appeal lies from the high court to the electoral court (subject to the leave of the high court or the electoral court). In hearing such an appeal, the electoral court would be D constrained to the powers it has been given by statute — which for current purposes would be those in terms of s 96(2) of the Electoral Act. Although the electoral court has the same status as the high court, it is different to the high court and does not have the inherent and statutory powers of the high court. (An electoral court is thus akin to the labour court, or the equality E court.)

[14.3]

When hearing cases such as the current one, the high court cannot have greater powers than the electoral court. The alternative would be absurd, in that a high court would have wide powers to deal with a matter, and on appeal an electoral court's powers would be narrower. F

[14.4]

Thus, even though the matter comes before this court as a high court, the only powers that it has are those in terms of ss 96(2)(a) – (g) of the Electoral Act. This court cannot in such matters exercise its inherent powers as a high court.

[14.5]

The sanctions in ss 96(2)(a) – (g) of the Act...