Electoral Commission of South Africa v Democratic Alliance and Others

The Good Party, led by Ms Patricia De Lille, lodged a complaint with the Electoral Commission of South Africa (the Commission) on 2 March 2019, alleging that the Democratic Alliance (DA) had contravened section 89(2) of the Electoral Act 73 of 1998 and item 9(1)(b) of the Code of Conduct in Schedule 2 to the Act. The complaint concerned guidelines used by the DA in the run-up to the May 2019 national and provincial elections, which stated: "We fired Patricia de Lille because she was involved in all sorts of wrongdoing in the City of Cape Town." Ms De Lille had been Mayor of Cape Town and a member of the DA. The DA had attempted to expel her and brought disciplinary proceedings against her on charges of intimidation, criminality and misconduct. She successfully challenged the attempted expulsion in the Western Cape High Court. Eventually, the parties entered into a settlement agreement in which Ms De Lille agreed to resign as Mayor by 31 October 2018, and in exchange the DA dropped pending disciplinary charges against her. On 15 April 2019, the Commission found that the statement that Ms De Lille had been "fired" was false and constituted a contravention of item 9(1)(b) of the Code. The Commission directed the DA to cease and desist from making further false statements and to issue a public apology within three days. The DA launched a review application in the Electoral Court, arguing that the Commission lacked jurisdiction to make such a finding and impose such remedies.

• Whether the Electoral Commission has jurisdiction to make a finding that a provision of the Code of Conduct has been contravened
• Whether the Electoral Commission has the power to impose sanctions or remedies for alleged contraventions of the Code of Conduct
• What is the proper interpretation of section 5(1)(o) of the Electoral Commission Act 51 of 1996, which empowers the Commission to adjudicate disputes 'of an administrative nature'
• Whether the Commission's powers can be sourced directly from section 190 of the Constitution
• What is the proper statutory framework for enforcement of the Electoral Code of Conduct

The appeal was dismissed. The Electoral Court's order reviewing and setting aside the Commission's decision that the DA violated item 9(1)(b) of the Code, and setting aside the remedies imposed by the Commission, was upheld. There was no order as to costs.

The binding legal principles established by this judgment are: 1. The Electoral Commission does not have the power to make a binding finding that the Code of Conduct in Schedule 2 to the Electoral Act has been contravened, nor to impose sanctions or remedies for such contraventions. 2. The Commission's power under section 5(1)(o) of the Electoral Commission Act to adjudicate disputes is limited to disputes "of an administrative nature" – meaning disputes relating to the management, organisation, administration or conduct of elections, not political disputes about campaign statements between parties. 3. A complaint that a political party has published false or defamatory allegations about another party's candidate is not a dispute "of an administrative nature" within the meaning of section 5(1)(o) of the Electoral Commission Act. 4. The Commission's role in relation to complaints about infringements of the Code is limited to attempting resolution through conciliation under section 103A of the Electoral Act. 5. Only courts have jurisdiction to determine whether provisions of the Electoral Act or the Code of Conduct have been contravened and to impose sanctions for such contraventions. 6. Section 190 of the Constitution does not independently confer adjudicative powers on the Commission beyond those specified in enabling legislation. 7. The principle of subsidiarity requires reliance on legislation enacted to give effect to constitutional rights (here, the Electoral Act and Electoral Commission Act giving effect to the right to free and fair elections) rather than direct reliance on constitutional provisions. 8. A public body's exercise of power not lawfully conferred on it violates the principle of legality, which requires that public power must be exercised within the powers lawfully conferred and must not be arbitrary.

The court made several non-binding observations: 1. The court noted that on the facts, the Commission's conclusion that the statement "we fired Patricia de Lille" was false was itself incorrect. Given the definition of "fired" as including "expel forcibly", and given that Ms De Lille had no real choice but to resign (as the DA would otherwise have proceeded with disciplinary charges), she was in fact "forcibly expelled" or "fired" by the DA. However, this conclusion did not affect the outcome as the Commission had no jurisdiction in any event. 2. The court observed that sections 89(2) of the Electoral Act and item 9(1)(b) of the Code limit the right to freedom of expression and impose severe penalties, and therefore in case of doubt they must be interpreted restrictively, with any ambivalence or uncertainty resolved against the risk of being penalized (citing DA v ANC). 3. The court clarified that the majority judgment in DA v ANC did not decide that the prohibition on false information in section 89(2) and item 9(1)(b) applies only to statements regarding "the mechanics of the conduct of an election" – that court specifically declined to decide that broader issue, holding only that the provisions do not apply to opinions or comments but only to statements of fact. 4. The court declined to provide an advisory opinion on the proper construction of item 9(1)(b), noting that courts exist for settlement of concrete controversies, not to pronounce on abstract questions or advise on differing contentions. The court observed that interpretation of these provisions is complex, implicating fundamental rights and requiring consideration in the context of real disputes. 5. Regarding costs, the court observed that when a state actor is litigating in the course of fulfilling its statutory duties, it should not be inhibited in the bona fide fulfillment of its mandate by the threat of an adverse costs award. The court also noted it is undesirable that electoral matters be decided without the benefit of the Commission's views.

This case is significant for definitively clarifying the limits of the Electoral Commission's powers in South African electoral law. It establishes that the Commission does not have adjudicative powers to determine whether the Electoral Code of Conduct has been breached or to impose sanctions for such breaches. The Commission's role is limited to facilitating conciliation and, where necessary, instituting proceedings in court. The judgment reinforces the principle of legality and the separation of powers, holding that public bodies may only exercise powers expressly or impliedly conferred by legislation. It prevents the Commission from exercising quasi-judicial functions that properly belong to the courts. The case provides important guidance on the interpretation of "disputes of an administrative nature" in section 5(1)(o) of the Electoral Commission Act, confining this to matters relating to the mechanics and logistics of conducting elections, not to political disputes between parties about campaign statements. The judgment is also significant for its discussion of the principle of subsidiarity, confirming that litigants must rely on legislation enacted to give effect to constitutional rights rather than bypassing such legislation to rely directly on the Constitution. The case demonstrates the carefully structured enforcement regime created by the Electoral Act, which provides expedited court procedures for electoral disputes while maintaining proper judicial oversight and protecting fundamental rights such as freedom of expression.