Member Article

The outcome of the May 2024 elections marked a significant milestone in our country’s history following President Ramaphosa’s announcement to establish a ‘Government of National Unity’. Nevertheless, as is routine in the aftermath of elections, the Electoral Commission of South Africa was quickly faced with numerous complaints and objections lodged by various parties and individuals largely relating to the manner in which the voting process was conducted.

This article will focus specifically on the Electoral Court’s judgment inAfrican Restoration Alliance v Electoral Commission of South Africawhich heard an application for leave to appeal against the Electoral Commission’s decision to dismiss the objections raised by the political party, African Restoration Alliance (‘ARA’), concerning various irregularities observed by their party agents during voting day.

Background facts

On 31 May 2024, two days after the election, the ARA lodged an objection with the Electoral Commission in terms of section 55 of the Electoral Act 73 of 1998. The objection focused on a series of incidents which had allegedly occurred at various voting stations in the Western Cape and Free State which, according to the ARA, indicated grounds of intentional vote tampering and/or electoral fraud.

The Electoral Commission responded two days later on 2 June 2024, and informed the ARA that its objection had been rejected on the grounds that it had failed to comply with several requirements of section 55(2) of the Electoral Act, read with Regulation 31 of the Election Regulations. In this regard, the Electoral Commission highlighted that the details of the objection were not contained in a sworn statement; there was no proof of service of copies of the notice and annexures on all other interested parties; and these alleged incidents had no material bearing on the final results of the election.

The Electoral Commission further informed the ARA to lodge an appeal with the Electoral Court in the prescribed manner if it was not satisfied with its decision. In this regard, Rule 5(1) of the Electoral Court Rules provides that an application for leave to appeal in terms of section 20(2)(b) of the Electoral Commission Act 51 of 1996 must be brought within 3 days after the decision has been made – which, in this case, was 5 June 2024.

Despite this prescribed timeframe, the ARA belatedly instituted its application for leave to appeal on 12 June 2024 together with a condonation application. In its application, the ARA sought relief which included instructing the voting stations to recount and/or review the votes cast; adding the relevant votes which the ARA were entitled to but not given; and subtracting the votes which were unlawfully and improperly allocated to other political parties. The ARA contended that had these alleged irregularities not occurred, they would have received sufficient votes to win a seat in Parliament.

The matter before the Electoral Court

The Electoral Court noted that the question before it was whether the ARA’s failure to comply with the prescribed time periods should be condoned. The Electoral Court referred to the Constitutional Court’s judgment inVan Wyk v Unitas Hospital,which held that a condonation application must be considered in light of the interests of justice which, in turn, depends on the facts and circumstances of each case. The factors relevant to this enquiry include, but are not limited to, the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal and the prospects of success.

The Electoral Court also referred to the judgment inKona v Premier Eastern Capewhich held that a party seeking condonation for its failure to adhere to prescribed time frames must furnish the court with a proper explanation and show sufficient cause before the court may exercise its judicial discretion on whether it is in the interests of justice to grant it. Condonation is not just there for the asking.

The Electoral Court concluded that the ARA had failed to provide a reasonable explanation for its delay of 7 days in bringing their application for leave to appeal and that their appeal did not have reasonable prospects of success. Although the ARA’s application for condonation was accordingly dismissed, the Electoral Court made no order as to costs given that the ARA’s conduct in bringing the application was not deemed reckless or vexatious.

The nature of any electoral process is, by its very nature, urgent and the Electoral Commission is furthermore statutorily bound in terms of section 57(2) of the Electoral Act to determine and declare the results of the elections within 7 days after voting day. This judgment serves as a reminder to all litigants about the importance of adhering to the prescribed timeframes.

 

Aslam Moosajee

Executive Dispute Resolution

[email protected]

 

Laurence Mort

Candidate Legal Practitioner Dispute Resolution

[email protected]