[2021] ZACC 30 · case CCT254/20
[Urgent application] — [direct access] — [free and fair elections] [local government election timetable] — [voter registration weekend] — [constitutionality of re-opening of candidate nomination process]
The court's own headnote.
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court. On Monday, 20 September 2021 at 10h00, the Constitutional Court handed down judgment in an urgent application by the Democratic Alliance (DA), for direct access and an order seeking to declare the decision made by the Electoral Commission (Commission) on 6 September 2021 to re-open the candidate nomination process in the 2021 local government elections, unconstitutional, unlawful invalid and that it be set aside. The application came off the back of a separate urgent application (the main application) launched by the Commission under the same case number, in terms of which the Commission sought an order to the effect that it could hold the local government elections which were scheduled for 27 October 2021 in February 2022, due to the risk of the election not being free and fair because of the COVID-19 pandemic In the alternative, the Commission had sought an order declaring that its failure to hold the local government elections on 27 October 2021 was unconstitutional and that such declaration of invalidity be suspended to allow it until 23 February 2022 to correct the constitutional defect. Due to the urgency of that application, this Court issued an order on 3 September 2021 with reasons to follow.
In terms of paragraph 5(a) of that order, the Commission was to determine within three days thereof, whether it was practically possible to hold a voter registration weekend with a view to registering new voters and changing registered voters’ particulars on the national voters’ roll in time for the local government elections. Pursuant to the order, the Commission determined that it would be possible to hold a voter registration weekend during the weekend of 18-19 September 2021. However, in addition to this, the Commission also advised that it would be amending the election timetable to include the re-opening of the candidate nomination process. Aggrieved by this decision, the DA launched its urgent application, the subject of these proceedings.
The DA argued that properly construed, paragraph 5(c)(iii) of the order only entitled the Commission to amend the election timetable to the extent that it may be “reasonably necessary”. According to the DA, this was limited to the addition of new voters to the roll and did not include any adjustment in respect of party lists and nominations. The DA further argued that this Court’s dismissal of the Economic Freedom Fighter’s relief in the main application, to amend the Disaster Management Act Regulations so as to permit gatherings of more than 100 persons for the sole purpose of enabling political parties to conduct their internal processes for selecting candidates, was a judicial determination to the effect that the candidate nomination process may not be re-opened. Lastly, the DA contended that the Commission’s decision to re-open the candidate nomination process was taken in order to give the African National Congress (ANC) a chance to remedy its failure to submit lists and candidates in certain municipalities.
The DA’s application was supported by Inkatha Freedom Party, Economic Freedom Fighters (EFF), African Transformation Movement and the South African Institute of Race Relations. The application was opposed by the Commission, the Minister of Cooperative Governance and Traditional Affairs (Minister), the ANC and Freedom Under Law who all contended for the dismissal of the application. With the exception of the Minister who was cited as a respondent in the main application, these parties were cited in their respective capacities as amicus curiae or intervening parties in the main application. In opposition, the Commission argued that the re-opening of the candidate nomination process was a necessary corollary to holding a voter registration weekend.
Quite apart from this however, the Commission also argued that it was empowered in terms of section 11(2) of the Municipal Electoral Act 27 of 2000 to amend the election timetable. Section 11(2) provides that the Commission may, by notice as required in subsection (1)(b), amend the election timetable if (a) it considers it necessary for a free and fair election; or (b) the voting day is postponed. In a unanimous judgment decided without an oral hearing by the Court, it stated that the proper approach to interpretation involves a unitary exercise in which a court seeks to ascertain the meaning of a provision in light of the document as a whole and in context of admissible background evidence. The Court held that the proper interpretation to paragraph 5(a) of the order envisaged an amendment to the timetable in respect of registering new voters.
The focus of the Commission’s determination in terms of the order was the voters and not candidates. The extension of the candidate cut-off date was therefore held to not fall within the ambit of amendments which paragraph 5(c)(iii) contemplated as reasonably necessary. In respect of section 11(2), the Court held that it is doubtful whether section 11(2)(b) finds application because the election date in this case was not postponed but rather, the Minister’s proclamation was set aside with the effect that there was no election date at all. In respect of section 11(2)(a) the Court held that granting a candidate cut-off date would be consistent with the legislative scheme and further, that with the Minister’s intended proclamation date of 1 November 2021, the Commission would have five additional calendar days to work with.
In respect of the DA’s contention that the Court’s refusal to grant the EFF’s relief in the main application was a judicial determination, the Court rejected this contention. The Court held that its refusal did not imply that the candidate cut-off date may not be extended. Lastly and in relation to the assertion that the ANC would unduly benefit from the re-opening of candidates, the Court held that it was not possible on the papers and in conformity with the Plascon-Evans rule to reject the Commission’s denial of those imputations. In the result, the DA’s application for direct access was granted but the application was dismissed with no order as to costs..
Published by the court for the media; it does not form part of the judgment.
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NUMBER: CCT245/21 In the application of: DEMOCRATIC ALLIANCE Third Intervening Party In re the matter between: ELECTORAL COMMISSION OF SOUTH AFRICA Applicant And MINISTER OF COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS First Respondent MEC RESPONSIBLE FOR LOCAL GOVERNMENT, EASTERN CAPE Second Respondent MEC RESPONSIBLE FOR LOCAL GOVERNMENT, FREE STATE Third Respondent MEC RESPONSIBLE FOR LOCAL GOVERNMENT, GAUTENG Fourth Respondent MEC RESPONSIBLE FOR LOCAL GOVERNMENT, KWAZULU-NATAL Fifth Respondent MEC RESPONSIBLE FOR LOCAL GOVERNMENT, LIMPOPO Sixth Respondent MEC RESPONSIBLE FOR LOCAL GOVERNMENT, MPUMALANGA Seventh Respondent MEC RESPONSIBLE FOR LOCAL GOVERNMENT, NORTHERN CAPE Eighth Respondent MEC RESPONSIBLE FOR LOCAL GOVERNMENT, NORTH WEST Ninth Respondent MEC RESPONSIBLE FOR LOCAL GOVERNMENT, WESTERN CAPE Tenth Respondent SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION Eleventh Respondent And AFRICAN NATIONAL CONGRESS First Intervening Party INKATHA FREEDOM PARTY Second Intervening Party DEMOCRATIC ALLIANCE Third Intervening Party MAKANA INDEPENDENT NEW DEAL Fourth Intervening Party AFRICAN TRANSFORMATION MOVEMENT Fifth Intervening Party FORUM 4 SERVICE DELIVERY Sixth Intervening Party ONE SOUTH AFRICA MOVEMENT Seventh Intervening Party ECONOMIC FREEDOM FIGHTERS Eighth Intervening Party And COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION First Amicus Curiae FREEDOM UNDER LAW (RF) NPC Second Amicus Curiae SOUTH AFRICAN INSTITUTE OF RACE RELATIONS Third Amicus Curiae AFRIFORUM NPC Fourth Amicus Curiae GROUNDS OF OPPOSITION TAKE NOTICE FURTHER THAT the ANC hereby sets out its principal grounds for opposition, which will be expatiated upon in an answering affidavit. TAKE NOTICE FURTHER THAT the ANC: 1. Concedes that the matter is urgent and it is in the interests of justice for this Court to hear the matter directly in terms of section 167(6)(a) of the Constitution. 2. Denies that the DA is entitled to the further relief in prayers 3, 4 and 5 of its Notice of Motion, on the following grounds, which shall be expatiated upon fully in any answering affidavit, which may be permitted to be filed: 2.1 This Court’s order, on which the DA relies, did not prohibit (expressly or implicitly) the IEC from amending the election time table by the inclusion of a further opportunity for political parties to submit fresh lists of candidates or adjust existing lists. 2.2 The argument raised by the DA, thus runs counter to the express words of the Court order, and the DA impermissibly seeks to introduce words to the Court order which this Court decided not to include. 2.3 The DA’s strained interpretation of the Court order fundamentally departs from the language of the Court order, and ignores the specific authority granted to the Electoral Commission to make “reasonably necessary” changes to the published election time table, pursuant to the order invalidating the proclamation of 3 August 2021. 2.4 The IEC acting in terms of section 11(2) of the Local Government: Municipal Electoral Act 27 of 2000 has determined that the fresh registration of candidates is a reasonably necessary amendment change to the time table. 2.5 The IEC was expressly permitted by this Court’s order to have regard to section 11(2) of the Municipal Electoral Act when making reasonably necessary changes to the time table. 2.6 Section 11(2) of the Municipal Electoral Act requires the IEC to have regard to the freeness and fairness of elections when amending the time table. 2.7 The IEC’s determination can only be challenged on circumscribed grounds, such as irrationality and unreasonabless, but may not be second-guessed as the DA wrongly seeks to do. 2.8 The DA’s arguments are irrational. The DA concedes that fresh registration of candidates will be permissible in “certain circumstances”, but it irrationally argues that in this case the IEC should not have amended the time table to allow all candidates who wish to register afresh. The distinction sought to be drawn by the DA is wholly irrational and borders on abuse of court process. TAKE NOTICE FURTHER, that in the event that the application is dismissed, the ANC shall ask for a punitive costs against the DA, on these grounds. 1. The DA has publicly made spurious, unfounded and vexatious accusations against the ANC and this Court, in which it claimed that the ANC had received advance warning of the content of the judgment delivered on 4 September 2021. The DA’s comments were false, but the DA made them knowing them to be false and without any regard to the impact they have on the public perception about the standing and reputation of this Court. 2. The DA has made scurrilous and baseless accusations that the ANC is working clandestinely with the IEC or that the IEC has intentionally sought to favour the ANC. The accusation is false and has been made recklessly by the DA. These allegations were made with reckless disregard about the damaging impact of the statements to the standing of the IEC as an independent institution. TAKE NOTICE FURTHER that the First Intervening Party has listed the address of its attorneys below as the address where all documents involved in this matter can be served. SIGNED at JOHANNESBURG on the 8th day of September 2021. _________SGD MFANA GWALA GWALA DLAMINI MSANE INC First Intervening Party Attorneys LAWFIN HOUSE 82 Vorster Drive GLENANDA, JOHANNESBURG, 2091 Cel: 079 874 5275 Tel: 011 056 9124 e-mail: mvgwala@mvgwalainc.co.za REF: CIV21004/ANC21/MV Gwala TO: THE REGISTRAR OF THE ABOVE HONOURABLE COURT AND TO: MINDE SCHAPIRO & SMITH INC. Third Intervening Party Attorneys C/o Christodoulou & Mavrikis Suite 3A, Fricker Rd, Illovo Boulevard, Johannesburg Per email: elzanne@mindes.co.za; karin@mindes.co.za AND TO: MOETI KANYANE INC Electoral Commission Of South Africa 1st Respondent’s Attorneys First Floor, Block D Corporate 66 Office Park 269 Von Willich Street Die Hoewes, CENTURION Tel: 012 003 6471 Fax: 086 416 2255 Ref: M Kanyane/BC/M00232 Email: moeti@kanyane.co.za mashudu@kanyane.co.za C/O RAMS INC 9th Floor, Fredman Towers SANDTON Tel: 011 883 2234/6 Ref: Mr W Moeketsane SERVED BY ELECTRONIC MAIL AND TO: THE MINISTER OF COOPERATIVE GOVERNANCE & TRADITIONAL AFFAIRS Second Respondent First Hamilton Street Arcadia, PRETORIA e-mail: avrilW@cogta.go.za C/o THE STATE ATTORNEY SALU Building 316 Thabo Sehume Street PRETORIA e-mail: ichowe@justice.gov.za;StateAttorneyPretoria@justice.gov.za SERVED BY ELECTRONIC MAIL AND TO: THE MEC FOR LOCAL GOVERNMENT FOR EASTERN CAPE Third respondent Tyamzashe Building Phalo Avenue Civic Square, BHISHO e-mail:mzwake.clay@ecogta.gov.za;noncedo.nothoko@ecogta.gov.za; sivuyisiwe.mayoyo@ecogta.gov.za SERVED BY ELECTRONIC MAIL AND TO: THE MEC FOR LOCAL GOVERNMENT FOR THE FREE STATE Fourth Respondent OR Tambo House, 7th Floor Cnr St Andrew’s & Markgraaf Streets BLOEMFONTEIN e-mail:hod@fscogta.gov.za;Tembeni.lobe@fscogta.gov.za; lesleyk@fscogta.gov.za SERVED BY ELECTRONIC MAIL AND TO: THE MEC FOR LOCAL GOVERNMENT FOR GAUTENG Fifth Respondent 37 Pixley ka Isaka seme Street Marshalltown, JOHANNESBURG e-mail:quinton.kuhn@gauteng.gov.za;Fred.Mokoko@gauteng.gov.za; Zukiswa.ncunyana@gauteng.gov.za; SIMON.MASISI-LETELE@gauteng.gov.za SERVED BY ELECTRONIC MAIL AND TO: THE MEC FOR LOCAL GOVERNMENT FOR KWAZULU-NATAL Sixth Respondent 330 Langalibalele Street PIETERMARITZBURGe- mail:Lelani.Vandenberg@kzncogta.gov.gov.za;Kerry.Turner@kzncogta.gov.za;No kwanda.MCHUNU@kzncogta.gov.za; Sanele.ZONDI@kzncogta.gov.za SERVED BY ELECTRONIC MAIL AND TO: THE MEC FOR LOCAL GOVERNMENT FOR LIMPOPO Seventh Respondent Hensa Tower Building 28 Market Street POLOKWANE e-mail:NgobeniDD@coghsta.limpopo.gov.za; DumalisileN@coghsta.limpopo.gov.za; Mathyem@coghsta.limpopo.gov.za SERVED BY ELECTRONIC MAIL AND TO: THE MEC FOR LOCAL GOVERNMENT FOR MPUMALANGA Eight Respondent Samora Machel Building Ext 2, 7 Government Boulevard Riverside Park, MBOMBELA e-mail:LVDWalt@mpg.gov.za;MvdMerwe@mpg.gov.za;sam@mpg.gov.za; Skunene@mpg.gov.za;MkhwanaziZF@mpg.gov.za SERVED BY ELECTRONIC MAIL AND TO: THE MEC FOR LOCAL GOVERNMENT FOR THE NORTHERN CAPE Ninth Respondent JS du Plooy Building 9 Cecil Sussman Street KIMBERLEY e-mail: bvass@ncpg.gov.za;bslenkoe@ncpg.gov.za; mmadyo@ncpg.gov.za; gbotha@ncpg.gov.za;mmanyeneng@ncpg.gov.za; pseane@ncpg.gov.za SERVED BY ELECTRONIC MAIL AND TO: THE MEC FOR LOCAL GOVERNMENT FOR NORTH WEST Tenth Respondent Telkom Building 3366 Bessemmer Street Industrial Site, MAHIKENG e-mail: MMotlogelwa@nwpg.gov.za; tlerefolo@nwpg.gov.za SERVED BY ELECTRONIC MAIL AND TO: THE MEC FOR LOCAL GOVERNMENT FOR THE WESTERN CAPE Eleventh Respondent 9 Wales Street Cape Town e-mail: Graham.Paulse@westerncape.gov.za SERVED BY ELECTRONIC MAIL AND TO: THE SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION Twelfth Respondent Block B, Corporate Park 175 Corobray Avenue Waterkloof Glen PRETORIA e-mail: uqopichund@salga.org.za SERVED BY ELECTRONIC MAIL
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