Cape Party v Electoral Commission

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Pillay J, Masipa J, Ms S Moodley and Ms S Abro (members)
• Court: Electoral Court
• Citation: 2011 JDR 0055 (EC)
• Docket Number: 1/09

Pillay J:

The Applicant, the Cape Party with an abbreviated name of 'CAPE', was registered as a political party in terms of the Electoral Commission Act No 51 of 1996 (The Act') on 21 April 2008. It was thereupon issued with a party reference no 467.

Second Respondent applied to the First Respondent for registration as a political party and this was published in terms of the law in the Government Gazette on 21 November 2008. The application included, inter alia, the designated abbreviation name of 'COPE'.

The Applicant then lodged an objection to the application for the registration of 'COPE' as the Second Respondent's abbreviated name with the Chief Electoral Officer ('the CEO'). On 19 December 2008, the CEO dismissed the objection and duly approved the registration of the Second Respondent, including its abbreviated name of 'COPE', as a political party.

2011 JDR 0055 p3

Pillay J

Applicant then appealed against the decision of the CEO to the First Respondent on 6 January 2009. The Appeal was dismissed on 10 February 2009.

The Appellant now comes on appeal to this Court with its leave, challenging the decision of the First Respondent to uphold the decision of the CEO to dismiss its objection.

It lists the following four grounds of appeal contending that the First Respondent had erred in its interpretation of the applicable law, in so far as:

(a)

It upheld the CEO's finding that "COPE", as abbreviated name of Second Respondent, did not resemble the abbreviated name of Applicant, a pre-existing and earlier-registered party, to such an extent that would deceive or confuse voters.

(b)

It applied the standard of notional "reasonable voter, reasonably informed', a test inconsistent with applicable law, and which defeats the purpose of the relevant statutory provision.

2011 JDR 0055 p4

Pillay J

(c)

It upheld the CEO's failure to recognise that the relevant law demands no more than the potential of confusion as between different political parties, it thus being unnecessary that an objector demonstrate actual confusion

(d)

It failed to accord due weight to Applicant's showing that confusion between "CAPE" and "COPE" was being stimulated in the media and in COPE's campaign media.

It seems that all the rules regarding service have either been complied with or condoned.

The Applicant made written submissions in support of the appeal. Jack Miller, the Applicant's Treasurer General and a member of its President's Council deposed to an affidavit amplifying submissions in regard to the aforementioned grounds of appeal.

In examining the grounds of appeal it seems to me the first three are inter-related and can be dealt

2011 JDR 0055 p5

Pillay J

with simultaneously.

The Appellant objected to the abbreviated name of 'COPE terms of Section 16(1) (b) of the Act which reads as follows:-

"1.

The Chief Electoral officer may not register a party ……., if —

(a)

……………………………

(b)

A proposed name, abbreviated name, distinguishing mark or symbol mentioned in the application resembles the name, abbreviated name, distinguishing mark or symbol, as the case may be, of any other registered party to such an extent that it may deceive or confuse voters;"

The Appellant contended that, the abbreviated name of the Second Respondent, viz 'COPE' is so similar to its abbreviated name viz 'CAPE' that it offends section 16 (1) (b) of the Act and should therefore not have been registered.

It argues that...