National Peoples Party v The Electoral Commission

• Jurisdiction: South Africa
• Judge: Pillay J
• Judgment Date: 01 April 2011
• Docket Number: 002/11 IEC
• Hearing Date: 29 March 2011
• Court: Electoral Court

Pillay J:

[1]

Municipal elections in South Africa have been set for 18 May 2011 and are regulated by the Local Government: Municipal Electoral Act 27 of 2000 ('the Act'). They are to be managed by the Electoral Commission ('Respondent') established in terms of the Electoral Commission Act 51 of 1996.

[2]

In terms of section 11 of the Act, the respondent compiled a time-table ('time-table') which regulates, inter alia, the submission of certain documents and necessary payments to the respondent by certain specified dates and times. Compliance therewith secures a registered party the right to participate in the elections.

[3]

The respondent caused the time-table for these elections to be published in GOVERNMENT GAZETTE NO 34114 of 11 March 2011, under NOTICE No. 134 of 2011.

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Pillay J

[4]

It is common cause that the respondent had set the cut-off date and time for the submission of notices of intention to contest the elections as well as candidate lists and the deposit of necessary payments at 17h00 on 25th March 2011.

[5]

The applicant is a duly registered party with its registered office at 12 Riverside Terraces, Hout Bay, Western Cape. It is desirous of contesting the Local Government Election for the City of Cape Town (Category A Metro) Local Election.

[6]

On 25th March 2011, intending to comply with the time-table, and carrying an envelope containing the necessary documents and a bank guaranteed cheque, the chairman of the applicant party, Badih Jamil Chaaban, entered the parking lot of the building at 304 Durban Road, Bellville, where the respondent's offices are located on the first floor. He did so before 17h00 on 25 March 2011. He then entered the building in question and met an official of the respondent at the front door. This official is identified as one Shireen Adams who told him to "relax, don't panic, you've made it". This was

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witnessed by one Monwabisi Magadla who deposed to an affidavit confirming it.

[7]

Having entered the building and accepting that he had 'made it', he proceeded to the first floor to submit the aforesaid documents. He entered the office through the door which was half open. When he attempted to submit the documents in the respondent's office, he was told by a Mr Sampson, the respondent's representative, that the documents could not be accepted as the 17h00 deadline had already passed.

[8]

On Monday, 28th March 2011, applicant, through its attorneys, sent a letter by telefax to the respondent requesting that the documents be accepted. The respondent did not respond to it.

[9]

The urgent application launched by the applicant, is couched in what appears to be one for an interdict to compel the respondent to accept the aforesaid documents and to be treated as any other party who has complied with the rules, alternatively, it seeks to have the decision of the respondent reviewed and set aside together with other relief intended to cure its predicament.

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Pillay J

[10]

In the circumstances, it would be best that this application is dealt with as a review application. This is so because at the core of the applicant's complaint, is the procedure by which the applicant was dealt with when it tendered the documents as aforesaid. More-over, it is the conduct of Mr Sampson in refusing to accept the documents when they were tendered.

[11]

In response to the application, the respondent supports the refusal to accept the documents tendered by the applicant on the basis that they were submitted after the cut off time of 17h00 on 25th March 2011. It explained that Mr Granville Abrahams is the appointed Municipal Electoral Officer for the City of Cape Town Municipality. It is also explained that he had synchronised the time with the Telkom Electronic Time Services.

[12]

The respondent's case is that at exactly 17h00, according to Abraham's synchronised time, he announced nominations closed. It alleges that it was only some time thereafter, that the applicant's documents were sought to be submitted and therefore refused. Mr Sampson was probably Mr Abrahams' subordinate and was merely following instructions. This is not clearly set out but nothing turns on it.

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Pillay J

[13]

The respondent further contends that the applicant's woes were self-inflicted by reason of the party officials not doing the necessary in good time - between 11 March 2011 and 25 March 2011.

[14]

The respondent also contends that it never took the decision (as envisaged by section 20 (1) (a) of the Electoral Commission Act 51 of 1996), which the applicant seeks to be...