United Democratic Movement v Tlakula

• Jurisdiction: South Africa
• Judge: Wepener J, (M. Mthembu and S. Pather, members, concurring)
• Judgment Date: 18 June 2014
• Citation: 2014 JDR 2124 (EC)
• Docket Number: EC 05/14
• Court: Electoral Court

JUDGMENT AND RECOMMENDATION

Wepener J:

[1]

The applicants in this matter are all registered political parties. They are the United Democratic Movement, The African Christian Democratic Party, Agang SA, Congress of the People and Economic Freedom Fighters. Each of the applicants was duly registered to participate in the 2014 national and provincial elections to be held on 7 May 2014 (the 2014 elections). I refer to them as the applicants.

[2]

The first respondent is Faith Dikeledi Pansy Tlakula, a commissioner and current chairperson of the Electoral Commission (the Commission).

[3]

The Commission, cited as the second respondent, is a constitutional institution established under chapter 9 of the Constitution and governed by the Electoral Commission Act [1] (the Electoral Commission Act). Its objects are set out in s 4 of the Electoral Commission Act and incudes to

'strengthen constitutional democracy and promote democratic electoral processes.'

[4]

The Commission filed a notice stating that it would abide by the decision of this court and took no part in the proceedings. Any reference to the respondent is therefore a reference to the first respondent only.

[5]

The applicants launched an application in this court seeking an order in the following terms:

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'2. Recommending that the National Assembly convene an urgent hearing in terms of section 194(1)(b) of the Constitution of the Republic of South Africa, 1996 and section 7(3)(a)(ii) of the Electoral Act 51 of 1996 to determine whether the first respondent should be removed from office as chairperson of the second respondent on the grounds of misconduct.'

[6]

The respondent resisted the application. During the course of the hearing, counsel for the applicants applied to amend the relief and requested the court to simply declare that the respondent had misconducted herself within the meaning of s 7 of the Electoral Commission Act and to recommend that a committee of the National Assembly has regard to this finding. The applicants further amended their contentions during the investigation but nothing turns on it.

[7]

The applicants instituted the application with a view to securing the eventual removal of the respondent from her office as a commissioner on the grounds of her misconduct. The grounds set out in support of these contentions are dealt with later in this judgment. The applicants also contended that in the light of the nature of the misconduct of the respondent, her continued participation in the planning and execution of the 2014 elections would seriously harm the credibility of the commission and, by extension, the applicants' and the public's confidence in the outcome of the elections.

[8]

The applicants brought an application to this court under Rule 8 of the Rules [2] (the Rules), for relief. [3]

[9]

The first step in a process for the removal of a commissioner from office would be for this court to determine whether, in its view, such a commissioner is guilty of misconduct and any of the contemplated action by a committee of the National Assembly is dependent upon a recommendation of this court in respect of any misconduct of that commissioner. Counsel agreed that such a determination is indeed a

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requirement. [4] This is so by virtue of the provisions of s 7(3)(a) of the Electoral Commission Act, which is congruent with s 194 of the Constitution [5] and provides that

'A commissioner may only be removed from the office by the President –

i)

on the grounds of misconduct, incapacity or incompetence;

ii)

after a finding to that effect by a committee of the National Assembly upon the recommendation of the Electoral Court;'(emphasis added)

[10]

The determination by this court constitutes an opinion upon which it bases its recommendation. [6] It is the prerogative of the committee of the National Assembly to make findings of misconduct. However, this court is required to weigh up all the relevant factors and decide the question of misconduct in order to make a recommendation. In Ex Parte Porritt , [7] Squires J said as follows:

'Applied to the context of that subsection, it seems to me to mean that the Master must, in the first instance, himself weigh up all that can be said for and against an application for rehabilitation and decide whether, in his estimation, the applicant is worthy of rehabilitation; and whether removal of the diminished status of insolvency in the particular case is desirable. For a variety of reasons related to his supervision of events in a sequestration and to his closer contact with the insolvent, creditors and trustees, he is normally in a better position than anyone else to identify and assess the merits of such an insolvency, shorn of any wider legal considerations. As was said by Slomowitz AJ in Kruger v The Master and Another NO, Ex parte Kruger1982 (1) SA 754 (W) at 757G, albeit in discussing a larger issue, "... what was intended (by s 124(2)) was an independent exercise by the Master of a discretion".'

In Walele v City of Cape Town and Others, [8] O'Regan ADCJ said as follows:

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'In making recommendations to a municipality on an application for the approval of building plans, a Building Control Officer must consider two primary issues. He or she must have regard to all the requirements in the Building Standards Act and other applicable legislation which might have a bearing on whether or not the plans should be approved. Section 7(1)(a) makes plain that if the plans do not comply with the Act or other applicable legislation, the municipality may not approve them. Similarly, the Building Control Officer must pay regard to the requirements set out in s 7(1)(b) of the Act and consider whether the proposed building will probably or in fact: disfigure the area; be unsightly or objectionable; derogate from the value of adjoining or neighbouring properties; or be dangerous to life or property. All of these matters must be considered by the Building Control Officer. The Building Control Officer may not recommend the approval of the plans if he or she is not satisfied that the proposed building does comply with the Act and all applicable legislation, or if he or she thinks that the proposed building will have or probably have any of the harmful effects mentioned in s 7(1)(b).' (footnote omitted)

[11]

Section 20(7) of the Electoral Commission Act grants this court jurisdiction to investigate any allegation of misconduct of a member of the Commission. It became common cause that the issue to be investigated is whether the respondent is guilty of misconduct. In order to then make a recommendation, the court is of the view that such can only be made based on the facts found by us to have been proven after weighing up and considering all relevant factors.

[12]

Following on the argument on behalf of the applicants, counsel for the respondent concentrated on the urgency of the matter. It was submitted that the respondent had had little time to prepare her affidavit; that she was extremely busy due to the upcoming elections and did not have time to properly attend to placing her version or explanation before this court; that the removal of the respondent from the Commission would result in only four commissioners being in office, which in turn could result in a stalemate during meetings where a majority vote amongst the five commissioners secures a decision of the Commission; that she was not brought to this court to contend with an investigation as envisaged in s 20(7) of the Electoral Commission Act; and that, due to the fact that in the past she was not called upon to

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answer allegations of misconduct, her explanation, already given to the National Assembly, needed supplementation.

[13]

Counsel for the respondent was invited to deal with the merits of the matter and to indicate the nature of the additional evidence which the respondent wished to tender. It was not contended that the respondent wished to give explanations different than those already on record, but only that she wished to furnish additional information. It is difficult to think of any reason why her responses to the allegations would be any different simply because it would be elaborated upon and were given for a different purpose. [9]

[14]

In dealing with the merits of the matter it was accepted that the respondent had already set out her responses to the complaints against her in a document which had been submitted to the National Assembly. Her counsel said that the respondent might wish to place further explanations before the court. Although it became apparent that the additional matter which the respondent wished to place before the court was limited to three or four issues, it seemed prudent to allow her a further opportunity to formulate additional explanations.

[15]

The second ground, namely that the respondent was extremely busy at the time, was understandable but not a reason to postpone the matter for fifteen to twenty days as suggested by her counsel. The matter before this court is of importance. The court was therefore of the view that the respondent should give priority to it. There was no indication that the Commission would not be able to function properly and smoothly

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should the respondent apply her mind to the few issues indicated by her counsel that needed elaboration.

[16]

The submission that the Commission may have found itself in a stalemate position if only four commissioners remained in office is speculative and can therefore not outweigh the importance of the matter before this court. It was also contradicted by credible, uncontroverted evidence: at a meeting where the applicants sought to discuss the possible stepping down of the respondent from her office, the remaining...