Umkhonto Wesizwe Party and Another v Electoral Commission of South Africa and Others

A vacancy arose in Ward 2 of Msunduzi Municipality, KwaZulu-Natal, requiring a by-election proclaimed for 18 December 2024. On 11 November 2024, Mr Vusumusi Mvelase submitted Mr Mshengu's name as the MK Party's candidate to the Electoral Commission (EC). On 25 November 2024, Dr Kwazi Mbanjwa, the registered contact person for the MK Party with the EC, authorized Ms Cebisile Zuma to submit Mr Nkabinde's name as the party's candidate. The EC withdrew Mr Mshengu's nomination and replaced it with Mr Nkabinde's. The MK Party alleged that Dr Mbanjwa was removed as provincial coordinator on 28 October 2024 and had no authority to act. The EC notified Mr Mvelase of the change but refused to reverse its decision, stating only a court could do so. The MK Party applied urgently to review and set aside the EC's decision, arguing Mr Mvelase had authority and that Mr Mshengu was properly nominated through an internal democratic process. The application was brought five days late due to attempts to engage the EC first.

• Whether the application should be heard as one of urgency
• Whether condonation should be granted for late filing by both the MK Party and the EC
• Whether Dr Mbanjwa was duly authorized to make submissions to the EC on behalf of the MK Party
• Whether the EC acted unlawfully in withdrawing Mr Mshengu's nomination and replacing it with Mr Nkabinde's
• Whether the EC's decision was reviewable as an administrative action
• Whether the MK Party's failure to comply with Regulation 9 of the Registration of Political Parties Regulations 2004 affected its right to nominate a candidate
• Whether the EC violated the rules of natural justice by not affording Mr Mvelase an opportunity to make representations

1. Condonation granted for late filing by the applicant and late filing of answering affidavit by the first respondent. 2. The application heard as one of urgency. 3. Application dismissed with no order as to costs.

The binding legal principle is that the Electoral Commission may only accept candidate nominations from a political party's registered contact person as required by Regulation 9 of the Registration of Political Parties Regulations 2004. Political parties have an obligation to notify the Chief Electoral Officer in writing within 30 days of any change in registered particulars, including contact persons. Submissions from unauthorized persons, even if initially accepted, are legally ineffective. A party's failure to comply with registration regulations cannot form the basis for postponing an election, particularly where the election has already commenced and postponement would prejudice other compliant parties and voters. The EC's constitutional mandate under section 190(1)(a) and (b) of the Constitution requires it to manage elections efficiently and ensure processes support free and fair elections, though inefficiency in rejecting unauthorized submissions does not render a legally correct decision unlawful.

The Court expressed strong disapproval of the Electoral Commission's imprudent and inefficient conduct in initially accepting Mr Mvelase's submission without verifying his authority as a registered contact person, only rejecting it after receiving a second submission. The Court emphasized that the EC's internal systems appeared inadequate and such conduct should not be repeated. The Court articulated important observations about electoral justice, stating it is 'a process and not an event' that must encompass both pre- and post-election processes to be truly free and fair. The Court noted that the EC, as one of the pillars supporting constitutional democracy, must ensure its processes are beyond reproach and do not cast doubt on democratic processes. While costs are not typically awarded in electoral matters, the Court indicated this principle applies unless a party's conduct has been vexatious, frivolous, or abusive of court processes. The Court also observed that both the MK Party and the EC had internal communication failures that contributed to the dispute.

This case reinforces the importance of registered political parties diligently maintaining accurate registration particulars with the Electoral Commission, particularly contact person details. It clarifies that the EC must only accept nominations from registered contact persons as required by Regulation 9 of the Registration of Political Parties Regulations 2004. The judgment emphasizes that the EC has a constitutional obligation to manage elections fairly and efficiently, and its internal systems must support rather than undermine free and fair elections. The case illustrates that electoral justice encompasses the entire electoral process from pre-election to post-election stages, not just voting day. It also confirms that courts will not order postponement of elections where a party's own failure to comply with regulations leads to difficulties, particularly where the election has already commenced and postponement would be unfair to compliant parties and voters.