African National Congress v Electoral Commission

JurisdictionSouth Africa
JudgeMthiyane JA
Judgment Date04 April 2009
Docket Number03/2009
CourtElectoral Court
Hearing Date01 April 2009
Citation2011 JDR 0051 (EC)

Mthiyane JA:

[1]

The applicant, the African National Congress has lodged an application for leave to appeal against the decision of the first respondent, the Electoral Commission, dismissing an objection by the applicant to the nomination of the second and third respondents as candidates for election on 22 April 2009. The application for leave to appeal is accompanied by an application for condonation of the late filing of the application for leave to appeal.

[2]

It is not the practice of this court to give a full judgment in an application for leave to appeal. Such applications are dealt with on the same basis as Petitions for leave to appeal to the Supreme Court of Appeal, where decisions are made and reasons not given. However in terms of s 20 (3) of the Electoral Commission's Act 51 of 1996 this court is empowered 'to determine its own practice and procedures'. Given the background and what transpired during the communications between the applicant's attorneys and the registrar I consider it appropriate to give a

2011 JDR 0051 p3

Mthiyane JA

judgment and to advance full motivation for the conclusion to which I have come.

[3]

In terms of rule 5 (1) of the rules of this court an application for leave to appeal must be lodged 'within three days after the decision [sought to be impugned] has been made by the Commission [the first respondent].' The application for leave to appeal was filed with the Registrar of this court on 27 March 2009, some four days after the decision made by the first respondent (on 23 March). The applicant contends that its application for leave to appeal was 'lodged' timeously. For this contention it relies on the fact that an electronic copy of the application was e-mailed to the Registrar, Mr Coetzee on 26 March 2009 at 16h27. The difficulty with this contention is that none of the respondents were served on that day and the second and the third respondents were not even cited as parties to the application. It was only after this deficiency was pointed out to applicant that the second and third respondents were cited. Whether or not they have now been served is not altogether clear from the papers. In terms of rule 1 of the rules of this court 'lodge' means 'to serve copies on all parties and file the original with the clerk'. Clearly therefore in the absence of the requisite service the application was not 'lodged' as required by the rule.

[4]

To counter this hurdle the applicant has filed...

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