Electoral Commission of South Africa v Speaker of the National Assembly and Others

In 2016, in Electoral Commission v Mhlope, the Constitutional Court declared the Electoral Commission’s failure to record all reasonably available post‑December 2003 voter addresses on the national common voters’ roll inconsistent with the rule of law in section 1(c) of the Constitution. That declaration was suspended until 30 June 2018 to allow compliance. Despite reporting progress, the Commission was unable to capture all outstanding addresses by the deadline and, facing the 2019 national and provincial elections, brought an urgent application seeking a further extension of the suspension of invalidity. Numerous political parties, state institutions and the original Mhlope litigants participated, with some opposing the extension.

The declaration of invalidity in Mhlope was further suspended until 30 November 2019, subject to stringent conditions, including mandatory progress reports to the Court, mechanisms to identify voters with incomplete or missing addresses, obligations on voters to supply addresses before voting, access for political parties to scrutinise address data, leave for parties to approach the Court on good cause, and an order that the Electoral Commission pay the costs of certain respondents.

This case is significant for clarifying how the Constitutional Court manages ongoing non‑compliance with constitutional obligations by independent institutions through section 172(1)(b) remedies. It underscores the centrality of accurate voters’ rolls to free and fair elections, reinforces judicial supervision through reporting orders, and demonstrates a pragmatic balance between enforcing the rule of law and safeguarding electoral stability.