African National Congress v Chief Electoral Officer, Independent Electoral Commission

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Skweyiya J and Van Der Westhuizen J
• Judgment Date: 03 June 2009
• Citation: 2010 (5) SA 487 (CC)
• Docket Number: CCT 45/2009
• Hearing Date: 05 May 2009
• Counsel: KD Moroka SC (with K Lengane) for the applicant. N Fourie for the respondent.
• Court: Constitutional Court

The court: G

Introduction

[1] On 5 May 2009 this court issued the following order in this matter:

'1.

H The applicant's non-compliance with the form of service of process as provided for in the rules of this court is condoned.

2.

The applicant is granted leave to appeal against the decision of the Electoral Court dated 30 April 2009, under case number 04/2009, upholding the respondent's objection to the eligibility of Mr Holmes Peter Maluleka as member of Parliament.

3.

I The appeal is granted and the decision of the Electoral Court relating to Mr Holmes Peter Maluleka is set aside.

4.

It is declared that Mr Holmes Peter Maluleka is eligible to be on the list of candidates for Provincial and National Elections of 2009.

5.

It is declared that Mr Holmes Peter Maluleka does qualify for inclusion on the list as a candidate for the elections held on J 22 April 2009.

The Court

6.

Reasons for this decision will be furnished later.' [1] A

[2] The reasons referred to in para 6 of the order now follow. The order resulted from an application brought on the basis of urgency by the African National Congress (ANC), a political party registered in terms of the electoral laws of the Republic of South Africa.

[3] The facts of the case are briefly as follows. The ANC included B Mr Holmes Peter Maluleka on its list of candidates for election to the National Assembly in the general elections held on 22 April 2009. Section 30 of the Electoral Act 73 of 1998 (the Act) provides that any person, including the chief electoral officer (the CEO), may object to the nomination of a candidate on a number of grounds. [2] The CEO objected C to Mr Maluleka's candidature (and to the candidature of several other nominated candidates) on the ground that his name did not appear on the voters' roll. As a result, the CEO reasoned that he was ineligible to be a member of the National Assembly. [3] The objection was considered and rejected by the Electoral Commission on 22 March 2009. D

The Court

A [4] The CEO then appealed against that decision to the Electoral Court in terms of s 30(4) of the Electoral Act. The Electoral Court upheld the objection of the CEO on 4 April 2009, but only furnished its reasons for this decision on 30 April, after the general elections were held on 22 April. [4] The applicant then applied urgently for leave to appeal against B the judgment of the Electoral Court. The papers in this court were lodged on 5 May 2009 and the application was heard on the same day at 17:00. The swearing-in of Members of Parliament was scheduled to take place - and in fact took place - the next day, 6 May 2009.

C [5] The CEO - the respondent - did not oppose the application. In fact, an affidavit filed on her behalf stated that she supported the relief sought in the application and her counsel furnished an oral explanation for the events leading up to the application to this court.

Jurisdiction

D [6] A preliminary point to be considered is the question whether this court has jurisdiction to consider an application for leave to appeal against a ruling of the Electoral Court. Section 96(1) of the Electoral Act provides:

'The Electoral Court has final jurisdiction in respect of all electoral E disputes and complaints about infringements of the Code, and no decision or order of the Electoral Court is subject to appeal or review.'

The parties did not address this question in their submissions and proceeded from the premise that this court indeed had jurisdiction.

F [7] In African Christian Democratic Party, [5] O'Regan J (for the majority of this court) refrained from considering the effect of s 96(1) of the Electoral Act on the jurisdiction of this court in relation to disputes arising from national or provincial elections. That matter dealt with local government elections to which s 96 is expressly not applicable. She held G that '(l)egislation should not be presumed to have intended to oust this Court's jurisdiction when it does not expressly state as such', and concluded that s 96(1) does not oust this court's jurisdiction in disputes arising from municipal elections. [6]

H [8] The question we must consider now is whether s 96(1) ousts the jurisdiction of this court in this matter. Section 96(1) must be interpreted

The Court

in a manner...