Inkatha Freedom Party v The Electoral Commission

• Jurisdiction: South Africa
• Judge: Mthiyane JA
• Court: Electoral Court
• Citation: 2011 JDR 0459 (EC)
• Docket Number: 001/11 IEC

Mthiyane JA:

INTRODUCTION

[1]

On 7 April 2011, I made an order (concurred in by Masipa J and Pillay J) reviewing and setting aside the decision of the respondent (the Commission), in which it refused to allow the applicant, Inkatha Freedom Party, to submit its necessary documentation in terms of sections 14(1) [1] and 17(1) and (2) [2] of the Local Government:

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Municipal Electoral Act 27 of 2000 (the Act) and the Commission's refusal to place on the final list of candidates for the Umzumbe local government elections the names of the applicant's candidates for the various wards specified in the nomination forms which the applicant sought to lodge with the Commission. In paragraph 4 of that order, it was indicated that reasons for it would be furnished in due course. The purpose of this judgment is amongst other things to furnish reasons for that order.

WHAT THIS CASE IS ABOUT

[2]

This case is concerned with the interpretation of sections 14 and 17(1) and (2) of the Act, dealing with requirements for parties contesting the elections by way of party lists, and requirements for ward candidates to contest elections, respectively. The question raised in this application is whether, to the extent that sections 14 and 17 of the Act state that the documentation referred to in section 14 and the list of nominated candidates referred to in section 17 are to be submitted 'to the Commission's local representative' by not later than a date stated in the timetable for the election, [3] this is a peremptory provision that prevented a party or candidate from submitting the said documents or list at any other office of the Commission, including its central or national office.

THE APPLICATION

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[3]

The applicant lodged an application to this Court on notice of motion seeking two forms of relief. The first form of relief is leave to appeal against the decision of the Commission taken on 25 March 2011, refusing to allow the applicant to submit its necessary documentation in terms of sections 14(1) and 17(1) and (2) of the Act at the Commission's Durban offices and to place on the final list of the candidates for the Umzumbe local government elections the names of candidates nominated by the applicant to stand for the election on 18 May 2011. The second and alternative form of relief is a review. The applicant seeks an order reviewing and setting aside the aforesaid decision of the Commission taken on 25 March 2011.

[4]

The application was filed and served on the Commission on 30 March 2011. In terms of rule 6(2) of the Rules of this Court it had to respond within three days from said date, that is, by not later than 4 April 2011. It did not do so and has not filed any papers in opposition. Given the Commission's letter from the Chief Electoral Officer dated 28 March 2011, I proposed to deal with the matter as though it were opposed. The letter was addressed to the applicant's attorneys and indicates the Commission's attitude to the applicant's pre-application overtures to get the Commission to change its decision. Although the letter is filed of record with the rest of the papers it is marked 'without prejudice'. It is not clear whether the intention was that the letter should form part of the proceedings or not. I do, however, think that it would do more harm to the Commission's cause if this matter were disposed without regard to the legal argument

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advanced by the Commission in the said letter. I will therefore assume in favour of the Commission that whatever privilege attached to the letter has been waived.

[5]

The argument advanced by the Commission as it appears in the letter is the following:

'The provisions of sections 14 and 17 of the Local Government: Municipal Electoral Act, 2000 (Act No. 27 of 2000), read with the Election Timetable published on 11 March 2011, required notices of intention to contest [the election] and other supporting documents to be submitted no later than 17h00 on 25 March 2011, "to the offices of the Commission's local representative".

The systems and processes of candidate nomination in local government elections are similarly configured in a manner that only allows capturing of information at that local level. Documents and information for each municipality are therefore to be processed in that municipality, save for central payment of deposits. It is in this regard that parties were urged to start submitting their documents from the 11th of March 2011 and not wait for [the] closing date and time.

The wording in these sections are explicitly peremptory and do not allow the EC to implement them differently or expansively. Accordingly, the documents of the IFP [that is the applicant] in this municipality cannot be accepted post the set date and time.'

THE FACTS

[6]

In order to put the matter in the proper context, it is necessary to briefly sketch the relevant facts. The applicant intended contesting numerous elections in the upcoming local government elections. To this end, it compiled relevant documentation that was required for submission to each municipality it wished to contest. The applicant timeously caused it to be collated and placed into separate marked envelopes

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for delivery to the offices of the relevant local representatives of the Commission before the stipulated deadline.

[7]

In the case of Umzumbe Municipality, two envelopes were prepared:

(a)

One which contained all the relevant documentation required for proportional representation (PR) candidates in terms of section 14(1) of the Act, including inter alia the applicant's party list (which listed 32 candidates), and the notice to contest the election; and

(b)

Another containing all the relevant documentation for the ward candidates in terms of section 17(1) and (2) of the Act, including the nomination forms for 19 ward candidates, their acceptances thereof, their ID documents, and their undertakings to be bound by the Code [4] and a declaration that they were not disqualified from standing for election.

[8]

Through an administrative error in the applicant's offices, the two envelopes containing documentation destined for Umzumbe Municipality were inadvertently mixed up with documentation and candidates list destined for the Gauteng area. When the applicant's official, Mr Peter Smith, who was responsible for the mix up, realised what had happened, attempts were made to courier the documents back to Durban for transportation to Umzumbe. The courier company could only get the documents on to a 2:00 pm flight back to Durban's King Shaka Airport, which meant that they could only be in Durban at 3 pm.

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[9]

Realising that this would leave the applicant with insufficient time to get the documents by road transportation to Umzumbe by 5:00 pm, a local helicopter company was commissioned to fly the documents to Umzumbe. The applicant was assured that it would only take 20 minutes to get the documents to Umzumbe.

[10]

After the documents arrived from Johannesburg, the courier company delivered the envelopes containing the documents to the helicopter at Virginia airport. The carefully laid plans were however dealt a blow, when a storm started in the mid to late afternoon in Durban. It became apparent that the storm would not lift in time to allow the helicopter to take off. When the helicopter pilot realised this, he called Mr Narend Singh, the applicant's deponent to this application, at approximately 4:25 pm advising him that the storm had grounded the helicopter and that they would not be able to take off.

[11]

The events that followed are described by Mr Singh as follows:

'I immediately called Mr Mawethu...