African National Congress v Chief Electoral Officer of the Independent Electoral Commission

The ANC included Mr Holmes Peter Maluleka on its list of candidates for the National Assembly in the 2009 general elections. Mr Maluleka had been issued two identity documents (in 2000 and 2006) with different identity numbers due to corrections to his name spelling and date of birth. He registered as a voter using the first identity document but accepted nomination using the second. The Chief Electoral Officer (CEO) objected to his candidature on grounds that his name did not appear on the voters' roll, believing the discrepancy meant he was not registered. The Electoral Commission rejected the objection on 22 March 2009. The CEO appealed to the Electoral Court, which upheld the objection on 4 April 2009 but only furnished reasons on 30 April 2009, after the elections held on 22 April. The ANC urgently applied to the Constitutional Court on 5 May 2009, one day before the swearing-in of members of Parliament scheduled for 6 May 2009. Mr Maluleka had previously served as an MP from 2004 to 2009.

• Whether the Constitutional Court has jurisdiction to hear appeals from the Electoral Court despite section 96(1) of the Electoral Act which provides that decisions of the Electoral Court are final and not subject to appeal or review
• Whether Mr Maluleka's constitutional right to stand for election under section 19(3)(b) of the Constitution was unjustifiably infringed
• Whether the matter was sufficiently urgent to warrant hearing by the Constitutional Court
• Whether Mr Maluleka was eligible to be on the list of candidates despite the discrepancy in identity numbers

The Court made the following orders: (1) Condoned non-compliance with the Rules regarding service of process; (2) Granted leave to appeal against the Electoral Court decision of 30 April 2009; (3) Upheld the appeal and set aside the Electoral Court decision relating to Mr Maluleka; (4) Declared Mr Maluleka eligible to be on the list of candidates for the 2009 Provincial and National Elections; (5) Declared Mr Maluleka qualified for inclusion on the candidate list for the elections held on 22 April 2009. No costs order was made.

Section 96(1) of the Electoral Act 73 of 1998, which provides that Electoral Court decisions are final and not subject to appeal or review, must be interpreted consistently with section 167(3)(a) of the Constitution. It should be read to mean that no appeal or review lies against Electoral Court decisions concerning electoral disputes save where the dispute itself concerns a constitutional matter within the jurisdiction of the Constitutional Court. Legislation should not be presumed to oust the Constitutional Court's jurisdiction when it does not expressly state as such, and section 2 of the Electoral Act requires interpretation that gives effect to constitutional guarantees. Where a candidate is in fact on the voters' roll despite administrative confusion regarding identity numbers, and there is no genuine uncertainty about the candidate's identity, the candidate is eligible to stand for election and preventing such candidature would unjustifiably infringe the constitutional right to stand for public office under section 19(3)(b) of the Constitution.

The Court observed that had the issue been raised only after members of the National Assembly had been sworn in, it may well have been that the Court could not have granted effective relief to Mr Maluleka, but this was not a question the Court needed to determine given the application was brought before swearing-in. The Court also noted that given Mr Maluleka's name had not been removed from the candidate list despite the Electoral Court decision, the Court did not need to consider whether he would be entitled to relief if his name had been removed on 3 April consistent with the Electoral Court decision as the Election Timetable appeared to contemplate. The Court noted that ordinarily it is not suited to hear urgent matters because of its composition (eleven judges sitting en banc with a minimum of eight) and functions, but acknowledged this matter required expeditious treatment in the interests of justice.

This case establishes important principles regarding the Constitutional Court's jurisdiction over electoral disputes that raise constitutional matters. It clarifies that section 96(1) of the Electoral Act, which purports to make Electoral Court decisions final, does not oust the Constitutional Court's jurisdiction in constitutional matters. The judgment demonstrates the Court's willingness to act with urgency in electoral matters where constitutional rights are at stake, even in the compressed timeframe between election results and the swearing-in of members. It also reinforces the substantive protection of the constitutional right to stand for public office under section 19(3)(b), requiring that technicalities not be allowed to unjustifiably infringe this fundamental political right. The case illustrates the principle of constitutional interpretation requiring legislation to be read consistently with the Constitution.