CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 10/04
LIBERAL PARTY Applicant
versus
THE ELECTORAL
COMMISSION First Respondent
THE GOVERNMENT OF THE REPUBLIC OF
SOUTH Second Respondent
AFRICA
PRESIDENT OF THE REPUBLIC OF
SOUTH Third Respondent
AFRICA
Decided on : 5 April
2004
JUDGMENT
THE COURT:
| [1] | This
is an urgent application for direct access to this Court and an appeal against a
decision of the Electoral Court. |
| [2] | The applicant, the Liberal
Party, first approached this Court by way of a letter dated 10 March 2004 by Mr
Mark Trimble, who appears
to be the leader of the party. In the letter, under
the heading “COMPLAINT: inequality and unfair discrimination”, the
applicant mentioned a number of complaints about the actions of the Electoral
Commission (the Commission). These complaints relate
in substance to the
question whether the applicant can participate as a political party in the
forthcoming general elections which
are to be held in less than two weeks’
time on 14 April 2004. The matter is therefore urgent and has been dealt with
by this
Court as expeditiously as possible. The applicant’s complaints
included the Commission’s alleged failure to furnish
the applicant with a
registration certificate, and the Commission’s refusal to accept the
applicant’s candidates’
list, which the applicant admits it sought
to submit some 21 minutes after close of business on the final day for the
submission
of such lists, namely 27 February 2004. It appears from the
documents lodged by the applicant in support of its application that
it is a
newcomer to the political scene. It has limited resources and was initially
unaware of the formalities that had to be complied
with to enable it to be
registered as a political party and participate in the
elections. |
| [3] | On 15 March 2004 the
Registrar of this Court informed the applicant in writing that although its
letter did not comply with the rules
of the Court, the complaint had been
considered. The applicant was directed to approach the Electoral Court,
established to deal
with complaints such as those raised in the
applicant’s letter. |
| [4] | The applicant indeed
approached the Electoral Court. From the correspondence available to this
Court, it would appear that the applicant
did so even before the above-mentioned
letter to this Court. In a letter dated 1 March 2004, with a stamp of the
Registrar of the
Supreme Court of Appeal (where the Electoral Court is seated)
indicating the same date, the applicant stated that it wished “to
appeal
against the decision of the Electoral Commission . . . for rejecting [the
applicant’s] late application to contest this
coming national and
provincial elections”, again referring to the applicant’s late
submission of the list on 27 February
2004. The applicant also requested
assistance with regard to the correct procedure to be
followed. |
| [5] | In a letter dated 2 March
2004 the Registrar of the Electoral Court advised the applicant in writing that
the procedure in the court
is governed by the Electoral Commission Act 51 of
1996 (the Commission Act) and the Electoral Act 73 of 1998 (the Electoral Act).
The applicant was furthermore advised to obtain legal
assistance. |
| [6] | The Chairperson of the
Electoral Court requested the Commission to furnish the Commission’s view
on the application and to respond
to the points raised therein. A copy of the
letter by the Chairperson of the court to the Commission was made available to
the applicant,
under cover of a letter dated 23 March
2004. |
| [7] | The Commission submitted a
memorandum dated 23 March 2004 to the Electoral Court. A copy of this
memorandum has been furnished to
this Court. On 24 March 2004 the Chairperson
of the Electoral Court informed the applicant in writing that the matter had
been considered,
resulting in the following order: “The (application for
leave to) appeal is dismissed.” It would therefore appear that
the
Chairperson of the Electoral Court treated the applicant’s papers as an
application for leave to appeal, in spite of apparent
procedural shortcomings.
No reasons for the order by the Chairperson were
furnished. |
| [9] | The Registrar of this Court
then – in a letter dated 26 March 2004 – instructed the applicant to
lodge urgently a copy
of the judgment and/or order of the Electoral Court, as
well as proof of service of the application on the respondents. The applicant
consequently lodged a copy of the order of the Electoral Court. No proof of
service on the respondents has been lodged with this
Court. However, a copy of
a letter dated 25 March 2004 by Mr Trimble to the Commission, has been made
available to this Court.
In the letter it is stated that the letter
“serves as an Urgent Notice for an Application for leave to Appeal . . .
.”
It may therefore be assumed that the first respondent has knowledge of
the application to this Court. |
| [10] | The Commission submitted a
memorandum dated 30 March 2004 to this Court, after being requested to do so.
The Registrar of the Court
made the two memoranda of the Commission available to
the applicant on 30 March 2004, and directed the applicant to lodge any possible
reply with this Court in writing before 10h00 on 1 April 2004, as a result of
which the applicant lodged written submissions with
the
Court. |
| [11] | Section
20[1] of the Commission Act and
section 96[2] of the Electoral Act
deal with the powers, duties, functions and jurisdiction of the Electoral Court.
From these provisions, as well as the legislative context
within which they
appear, it is clear that the Electoral Court is intended by the legislature to
be a mechanism to deal expeditiously
and urgently with reviews of and appeals
against decisions of the Commission. Section 20(1)(b), states for example that
any review shall be disposed of as expeditiously as possible. In terms of
section 20(2)(b) no appeal may be heard save with the prior leave of the
Chairperson of the Electoral Court. |
| [12] | In terms of section 96 the
Electoral Court has final jurisdiction in respect of all electoral disputes and
complaints about infringements of the Electoral
Code, and no decision or order
of the Electoral Court is subject to appeal or
review. |
| [13] | In terms of section 167 of
the Constitution this Court is the highest court in all constitutional matters.
A constitutional matter
includes any issue involving the interpretation,
protection or enforcement of the Constitution. A person may bring a matter
directly
to this Court, or apply to appeal directly to the Court from any other
court, when it is in the interests of justice and with leave
of the
Court.[3] |
| [14] | Section 19 of the
Constitution provides: |
“(1) Every citizen is free to make political choices, which includes the
right—
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political
party; and
(c) to campaign for a political party or
cause.
(2) Every citizen has the right to free, fair and regular elections for any
legislative body established in terms of the Constitution.
(3) Every adult citizen has the
right—
(a) to vote in elections for any legislative body established in terms of the
Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold
office.”
Section 190 of the Constitution
furthermore provides that the Commission must ensure that elections are free and
fair.
| [15] | We are prepared to assume
in favour of the applicant, for the purposes of deciding this case, that its
complaint raises a constitutional
matter and that this Court has jurisdiction to
consider this application for direct access, notwithstanding the provisions of
section
96, read with section 20,[4]
to which no constitutional challenges have been made. Moreover, we are prepared
to overlook in favour of the applicant, the procedural
shortcomings of its
application, including its failure to prove service on the
respondents. |
| [16] | The relevant issue to be
considered is whether there are reasonable prospects of success as far as the
applicant’s appeal against
the decision of the Electoral Court is
concerned. The applicant seeks relief in various forms, ranging from being
“afforded
the opportunity and the right to contest the coming
election”, and to be issued with its party registration certificate, to
“postponement of the elections to allow the appellant a fair opportunity
to stage a mini-election campaign”, as well
as exemptions from, and even
the amendment of, several statutory provisions applicable to
elections. |
| [17] | It is evident from the
documentation submitted to this Court by the Commission that the Liberal Party
is a registered party. The
certificate of that registration was issued on 19
February 2004, the particulars of which were published in the Government Gazette
26077 GN 278, 20 February 2004. This was done in accordance with section 15(5)
of the Commission Act. Thus, the applicant’s
contention that it was not
so registered is incorrect. |
| [18] | Having established that the
applicant is indeed a registered party, we turn to consider the contention that
the Commission erred in
not allowing the applicant to submit its
candidates’ list, in terms of section 27, read with section 28, of the
Electoral Act. It is this issue which lies at the heart of the
applicant’s complaint, because it was this decision which effectively
precludes
the applicant from contesting the forthcoming
elections. |
| [19] | It is common cause that the
applicant attempted to submit its candidates’ list 21 minutes later than
the prescribed deadline:
17h00 on 27 February 2004. This was the date and time
set by the Commission in the election timetable which it published in Government
Gazette 26039 GN 248, 13 February 2004, as required by section 20(1) of the
Electoral Act. In terms of section 26(b) of the Electoral Act a registered
party may only contest the elections if it has submitted a list of candidates as
prescribed in section 27 of the same
Act.[5] |
“A registered party intending to contest an election must nominate
candidates and submit a list or lists of those 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.” (Emphasis
added)
It is not disputed that the applicant did not comply with the
requirements set down by section 27(1), as it failed to submit its list
“by not later than the relevant date stated in the election
timetable”, that being 17h00
on 27 February
2004.[6] Consequently, it cannot
contest the elections.
| [21] | This thus raises the
question whether the Commission had any discretion to condone the late
submission of a candidates’ list
by the applicant. Section 28
provides: |
“(1) If a registered party that has submitted a list of candidates
has not fully complied with section 27, the chief electoral officer must notify
that party of its non-compliance.
(2) The notification must be given in the prescribed manner by not later than
the relevant date stated in the election timetable,
and must indicate that the
party has an opportunity to comply with section 27 by not later than the
relevant date stated in the election timetable.
(3) The opportunity provided for in subsection (2) includes an opportunity to
substitute a candidate and to re-order the names on
that list as a result of
that substitution.” (Emphasis added)
| [22] | Section 28(1)
provides for condonation and rectification “[i]f a registered party that
has submitted a list of candidates has not fully complied
with section
27”. As such, contrary to the applicant’s submission, section 28
does not vest the Commission with a discretion to condone late submission of
candidates’ lists, but only to allow the rectification
of other failures
to comply with section 27. The applicant had not submitted a list by the
deadline and is therefore not entitled to rectify its non-performance in terms
of
section 28. |
| [23] | The applicant also sought
to contend that the Commission acted in a discriminatory manner by allowing two
other parties, the Peace
and Development Party (the PDP) and the Sindawonye
Progressive Party (the SPP), to rectify their non-compliance with section 27 but
denied it the same concession. While there is no evidence before this Court as
to the nature of the SPP’s non-compliance,
it is evident that the PDP did
submit its candidates’ list prior to the deadline, and the issue was
merely whether the deposit
required by it could be tendered by way of a bank
guaranteed cheque deposited directly into the Commission’s bank account.
A court settlement in relation to this was reached prior to 17h00 on 27 February
2004. |
| [24] | This situation is different
from the factual circumstances in the present case. As noted
above,[7] non-compliance can be
rectified in terms of section 28, but a late submission cannot. Consequently,
the PDP’s rectification can hardly be used as a point of comparison on
which
to claim discrimination. |
| [25] | The Commission is bound by
the provisions of the Electoral Act and the Commission Act. Neither of these
Acts empowers the Commission to condone the late submission of candidates’
lists. Moreover,
there is nothing on the papers to indicate that the Commission
has ever done so; the only rectification indicated undoubtedly fell
within the
parameters of the powers conferred by section
28. |
| [26] | Furthermore, even if the
applicant’s contentions regarding other parties were correct, the fact
that the Commission may have
exceeded its powers by permitting another party to
submit a list of candidates after the peremptory time limit may be grounds for
challenging that party’s candidacy, but could not afford the applicant the
right to be treated similarly. |
| [27] | The only possible way to
avoid the consequences of section 27 would be for the Commission to change the
actual election timetable,
which it is empowered to do in terms of section 20 of
the Electoral Act. Section 20 provides: |
(1) The Commission must after consultation with the party national liaison
committee—
(a) compile an election timetable for each election substantially in accordance
with Schedule 1; and
(b) publish the election timetable in the Government Gazette.
(2) The Commission may amend the election timetable by notice in the Government
Gazette—
(a) if it considers it necessary for a free and fair election; or
(b) if the voting day is postponed in terms of section 21.
Thus, this option may only be exercised if “it is
necessary for a free and fair election”. We find that changing the
election timetable in order to circumvent the provisions of section 27 to
accommodate the applicant’s late submission, is not necessary for a
free and fair election. It is important to note that the election date cannot
be changed by the Commission: the date is set
by the
President.[8] As such, an extension
of time would contract the time available prior to elections. This would place
the Commission under increased
strain, and could prejudice other parties’
election build-ups and indeed free and fair elections. It would also open the
door
for other parties to seek further changes in the timetable.
| [28] | Moreover, the election
timetable referred to in paragraph 19 is a timetable which the Commission had to
compile and publish in the
Government Gazette after consultation with the party
national liaison committee (the liaison
committee).[9] The published
timetable set the cut-off time for the nomination and submission by registered
parties of a list of candidates for
the elections, to be held on the 14 April
2004, to be 17h00 on 27 February 2004. There is no suggestion that the
compilation and
publication of the timetable was done without prior consultation
with the liaison committee. |
| [29] | To amend the timetable
would in essence be to disregard the consultative process that led to the
finalisation of the published timetable.
Its amendment, unlike a party specific
rectification under section 28, would affect all the parties contesting the
election, not to mention the Commission itself, as the new timetable would be
applicable
to all parties. As such, changing this timetable must be viewed as a
last resort, not occasioned by the mere late submission of
a candidates’
list by one party. |
| [30] | The applicant’s
inability to contest the forthcoming elections, therefore, arises solely from
its failure to comply with the
mandatory provisions of the Electoral Act and
regulations and cannot be laid at the door of the Commission. The application
must therefore fail. In the circumstances, we
do not consider it necessary
to consider the peripheral issues raised by the applicant in this case. Should
the applicant wish to
pursue these issues, it may do so in a proper forum in the
proper manner. |
| [31] | On the basis of this
finding we accordingly make an order dismissing the application for direct
access and leave to appeal to this
Court. |
Chaskalson CJ, Madala J, Mokgoro
J, Moseneke J, O’Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and
Yacoob J.
[1] Section 20 provides:
“(1) (a) The Electoral Court may review any decision of the Commission
relating to an electoral matter.
(b) Any such review shall be conducted on an urgent basis and be disposed of as
expeditiously as possible.
(2) (a) The Electoral Court may hear and determine an appeal against any
decision of the Commission only in so far as such decision
relates to the
interpretation of any law or any other matter for which an appeal is provided by
law.
(b) No such appeal may be heard save with the prior leave of the chairperson of
the Electoral Court granted on application within
the period and in the manner
determined by that Court.
(c) Such an appeal shall be heard, considered and summarily determined upon
written submissions submitted within three days after
leave to appeal was
granted in terms of paragraph (b)
(3) The Electoral Court may determine its own practice and procedures and make
its own rules.
(4) The Electoral Court shall—
(a) make rules in terms of which electoral disputes and complaints about
infringements of the Electoral Code of Conduct as defined
in section 1 of the
Electoral Act, 1993 (Act No. 202 of 1993), and appeals against decisions thereon
may be brought before courts
of law; and
(b) determine which courts of law shall have jurisdiction to hear particular
disputes and complaints about infringements, and appeals
against decisions
arising from such hearings.
(5) The hearings and appeals referred to in subsection (4) shall enjoy
precedence in the courts of law determined in accordance with
that
subsection.
(6) The Electoral Court may hear and determine any matter that relates to the
interpretation of any law referred to it by the Commission.
(7) The Electoral Court may investigate any allegation of misconduct, incapacity
or incompetence of a member of the Commission and
make any recommendation to a
committee of the National Assembly referred to in section 7 (3) (a) (ii)
(8) . . . . ”
[2]
Section 96 provides:
“(1) The Electoral Court has final jurisdiction in respect of all
electoral disputes and complaints about infringements of
the Code, and no
decision or order of the Electoral Court is subject to appeal or review.
(2) If a court having jurisdiction by virtue of section 20 (4) (b) of the
Electoral Commission Act finds that a person or registered
party has contravened
a provision of Part 1 of this Chapter it may in the interest of a free and fair
election impose any appropriate
penalty or sanction on that person or party,
including—
(a) a formal warning;
(b) a fine not exceeding R200 000;
(c) the forfeiture of any deposit paid by that person or party in terms of
section 27 (2) (e);
(d) an order prohibiting that person or party
from—
(i) using any public media;
(ii) holding any public meeting, demonstration, march or other political
event;
(iii) entering any voting district for the purpose of canvassing voters or for
any other election purpose;
(iv) erecting or publishing billboards, placards or posters at or in any
place;
(v) publishing or distributing any campaign literature;
(vi) electoral advertising; or
(vii) receiving any funds from the State or from any foreign
sources;
(e) an order imposing limits on the right of that person or party to perform any
of the activities mentioned in paragraph (d);
(f) an order excluding that person or any agents of that person or any
candidates or agents of that party from entering a voting
station;
(g) an order reducing the number of votes cast in favour of that person or
party;
(h) an order disqualifying the candidature of that person or of any candidate of
that party; or
(i) an order cancelling the registration of that
party.
(3) Any penalty or sanction provided for in this section will be in addition to
any penalty provided for in Part 3 of this
Chapter.”
[3] See
Rules 18 and 19 of the Constutional Court Rules, 2003.
[4] See paras 11-12.
[5] Section 26 provides:
“A party may contest an election only if that party —
(a) is a registered party; and
(b) has submitted a list of candidates in terms of section 27.”
[6] See para 19.
[7] See para 22.
[8] See section 49(2) of the
Constitution, as amended, read with section 17 of the Electoral Act. Section
49(2) provides:
“If the National Assembly is dissolved in terms of section 50, or when its
term expires, the President, by proclamation must
call and set dates for an
election, which must be held within 90 days of the date the Assembly was
dissolved or its term expired.
A proclamation calling and setting dates for an
election may be issued before or after the expiry of the term of the National
Assembly.”
Section 17 provides:
“(1) Whenever the President or Acting President calls an election of the
National Assembly the proclamation concerned must
set a single day and date for
voting.
(2) The voting day must be determined after consultation with the
Commission.”
[9]
The ‘party liaison committee’ is defined in section 1 of the
Electoral Act as, “a committee established in terms
of the Regulations on
Party Liaison Committees published in terms of the Electoral Commission
Act.”
PDF format
RTF format