The Freedom Front Plus v African National Congress

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Pillay J, Masipa J, S Moodley and S Abro (members)
• Judgment Date: 31 March 2010
• Docket Number: 02/2009
• Court: Electoral Court
• Hearing Date: 30 March 2009
• Citation: 2011 JDR 0054 (EC)

Mthiyane JA (Pillay, Masipa JJ, S Moodley and S Abro (members) concurring):

[1]

The appellant, the Freedom Front Plus, appeals to this Court against the dismissal by the Electoral Commission of their objection, filed in terms of s 30 of the Electoral Act, to the nomination of the second respondent, Ms Winnie Madikizela-Mandela as a candidate in the election of 22 November 2009. The appellant contends that the second respondent is disqualified from standing because of a sentence of imprisonment of more than twelve months imposed on her in July 2004, even though the whole of the sentence was suspended on certain conditions.

[2]

The second respondent was nominated by the first respondent, the African National Congress, as a candidate in terms of section 27 of the Electoral Act 73 of 1998. The relevant portion of the section reads as follows:

'(1) A registered party intending to contest an election must nominate candidates for that election to the Chief Electoral Officer in the prescribed manner by not later than the relevant date stated in the election timetable.

(2) The list or lists must be accompanied by a prescribed —

(a)

...

2011 JDR 0054 p3

Mthiyane JA (Pillay, Masipa JJ, S Moodley and S Abro (members) concurring)

(b)

. . . declaration, signed by the duly authorised representative of the party, that each candidate on the list is qualified to stand for election in terms of the Constitution or national or provincial legislation under chapter 7 of the Constitution [emphasis added].

(c)

. . .

[3]

The appellant's objection to the nomination of the second respondent is based on section 47(1)(e) of the Constitution. The relevant portion of the section provides as follows:

'. . . anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 twelve months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed. [Emphasis added].

[4]

It is not in dispute that the second respondent was convicted of the commission of certain crimes on 24 April 2003 for which she was sentenced to a lengthy term of imprisonment. Nor is it disputed that after her appeal against the conviction and sentence to the Full Bench of the Pretoria High Court in July 2004 her sentence was reduced to three years and six months' imprisonment, the whole of which was suspended for a period of five years on certain conditions. What is in dispute is whether the disqualification applies to the second respondent.

[5]

The basis of the appellant's objection is that because the second respondent was sentenced to a period of more than twelve months without the option of fine in July 2004, she falls squarely within the provisions of section...