Februarie and another v Electoral Commission of South Africa and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Zondi JA, Modiba J, Shongwe AJ, Ntlama-Makhanya and Phooko
• Judgment Date: 01 August 2023
• Citation: 2023 JDR 2729 (EC)
• Hearing Date: 01 August 2023
• Docket Number: 003/2023 EC
• Court: Electoral Court

Modiba J:

Introduction

[1]

This is the third time that the facts that ground this application are considered by the Courts. The first applicant, Ronald John Februarie (Mr Februarie) together with Piet Arnold Olyn (Mr Olyn) and others on the one hand and the second respondent, Johan Andrew Phillips (Mr Phillips) and others on the other, are members of the second applicant, Siyathemba Community Movement (SCM). They have been embroiled in a dispute regarding the leadership of SCM since December 2021. Their dispute was first considered by this Court in Siyathemba Community Movement v The IEC and Others in the first term of 2022. [1] Depending on the context, I conveniently refer to that application as the first SCM application or judgment. The dispute was also considered by the Northern Cape High Court (the high court) under case number 148/22NCHC. The high court rendered its judgment in May 2023. Depending on the context, I conveniently refer to that application as the high court application or judgment.

[2]

As anticipated by this Court at paragraph 11 of the first SCM judgment, the high court application determined the leadership dispute between the parties by rejecting the version Mr Februarie presents in this application. This time, although the applicants approach this Court on purportedly new facts and for slightly different relief, the application is primarily grounded on the facts that grounded the first SCM and high court applications. The applicants are regrettably unable to wiggle themselves out of the outcomes of the first SCM and high court applications. At worst, this application constitutes abuse of the process of this Court.

2023 JDR 2729 p4

Modiba J

[3]

In the present application, the applicants, Mr Ronald Februarie (Mr Februarie) and the SCM seek the following orders:

(a)

declaring that Regulation 9 of the Regulations for the Registration of Political Parties 2004 as amended on 27 August 2021 (Regulation 9) which requires that changes to a registered party’s particulars can only be effected by the party’s registered leader is unconstitutional (prayer (a));

(b)

directing the Independent Electoral Commission (the Commission) to execute all its legislative duties, powers and functions in terms of s 5(1)(f) of the Electoral Commission Act, 51 of 1996 (the Electoral Act) by implementing the SCM’s Constitution and the resolution taken by its General Assembly and effect changes to the SCM’s registered particulars (prayer (b)); and

(c)

declaring that the term of SCM’s District Management Structure (DMS) has expired and compelling the first respondent, the Commission to ensure that a new election process is initiated on an expedited basis to elect a new DMS for the SCM (Prayer c).

[4]

The Commission opposes the application on the merits. The second respondent, Johan Andrew Phillips (Mr Phillips) has raised three dispositive points in limine, namely lack of jurisdiction, res judicata and Mr Februarie’s lack of locus standi. He also opposes the application on the merits. Mr Phillips seeks a dismissal of the application with punitive costs.

[5]

The members of this Court unanimously agreed that no oral hearing was warranted in this application and that it should be disposed of on the papers filed on record. None of the parties had addressed the question whether the application engages this Court’s jurisdiction in terms of s 20(2A) of the Electoral Commission Act. [2] The Chairperson directed them to file further submissions in this regard. They all did. This judgment is rendered having considered all the papers filed. This Court is indebted to all the parties

2023 JDR 2729 p5

Modiba J

for complying with all directives issued and for the assistance they have rendered in ensuring that this matter is disposed of expeditiously.

[6]

The locus standi and res judicata points in limine are dispositive of the application in this Court. However, I consider the rest of the issues for the following reasons. One of the bases on which Mr Phillips seeks a dismissal of the application with punitive costs is that the points in limine he raises demonstrates that the application should not have seen the light of day. The application also lacks merit. The second reason I consider all the issues is because of the binding authority discouraging peace-meal litigation to avoid the prospect of an appeal court considering any issue as the court of first instance in the event of an appeal. [3]

[7]

Mr Phillips seeks condonation for the late filing of his answering affidavit. The applicants do not oppose the request. Mr Phillips served his answering affidavit within the time directed by this Court. He only filed it outside the time set out in the notice of motion. The explanation he has put up for non-compliance with the timeframe in the notice of motion is that the applicants had served him with an application that did not seem to be properly instituted. It did not bear the Court stamp or case number. The Court Registrar only confirmed the validity of the application on 14 June 2023 in response to an enquiry by his attorney. On 21 June 2023, this Court directed that he files his answering affidavit by 23 June 2023. His attorney only served it on the applicants on that date. He filed it with the Registrar on 7 July 2023.

[8]

The time frame as directed by the Chairperson of this Court superseded that in the notice of motion. Court papers are only properly delivered when served on the other

2023 JDR 2729 p6

Modiba J

parties and filed in Court. The answering affidavit was timeously served as directed by this Court. The other parties suffered no prejudice as a result of its late filing. Mr Februarie has replied to it. The Court did not suffer any inconvenience as a result of the late filing of the answering affidavit. Mr Phillips has set out a full explanation for the delay. As appears from this judgment, he has prospects of success. His request for condonation is granted.

[9]

I first briefly outline the background facts. Against the background, I consider the points in limine and the merits. Lastly, I deal with the costs of the application. An order concludes the judgment.

Background facts

[10]

The background facts are detailed in the first SCM and high court judgments. It is for that reason that I only set them out below concisely.

[11]

SCM is a duly registered political party located in the Pixley ka Seme District Municipality (the DM) in the Northern Cape Province. It participated in the 2021 local government elections which were held on 1 November 2021 and won four of the eleven seats in the DM. Mr Februarie currently occupies one of these DM seats. The other seat is occupied by Mr Phillips. Mr Phillips is also the Mayor of the DM, a position he occupies as SCM’s duly elected mayoral candidate. Subsequently, the leadership dispute referenced above arose. It culminated in the purported suspension in December 2021 and dismissal in January 2022 of Mr Phillips and two other members from SCM. On 19 January 2022, Mr Februarie addressed a letter to the Commission requesting it to give effect to the expulsion of these members by updating the SCM’s proportional representatives list to reflect these purported developments. The Commission refused to give effect to this request, acknowledging the existence of an internal party dispute and citing its lack of jurisdiction over it.

2023 JDR 2729 p7

Modiba J

[12]

In February 2022, SCM instituted the first SCM application seeking an order to compel the Commission to implement Mr Februarie’s request to amend the SCM’s proportional representatives list to reflect the changes occasioned by the expulsion of the three members. The Commission opposed the application based on several points in limine and the merits. In an order granted on 22 April 2022, this Court upheld the Commission’s points in limine and dismissed the application. Two of the points in limine are relevant to this application. Mr Februarie was found to lack locus standi to bring this application and to depose to affidavits on behalf of the SCM. The high court application which was at that time pending was found to sustain a lis pendens point in limine.

[13]...