Ramotswabodi Johannes Sesing v Electoral Commission of South Africa and Others

The applicant was the only independent candidate who participated in the national and provincial elections held on 29 May 2024, standing for election to the Free State Provincial Legislature. The Election Timetable was proclaimed on 20 February 2024. The election results were announced on 2 June 2024, revealing that the applicant had failed to secure a seat due to obtaining insufficient votes. On 14 June 2024 (almost two weeks post-election results), the applicant instituted an urgent application. The applicant had registered to stand for election on 5 March 2024 and uploaded all required information before 17:00 on 8 March 2024. On 4 April 2024, the applicant requested the Commission to allow use of his nickname "JJ" on the ballot paper but was informed the ballot would contain his names as per his identity document. The applicant complained that: (1) independent candidates were only confirmed on 10 April 2024, creating an inadequate timeframe; (2) he was denied equitable access to media platforms by ICASA; (3) he was discriminated against regarding his nickname on the ballot paper; and (4) the delayed confirmation and late election date announcement were unconstitutional. The applicant sought various relief including allocation of a seat in the Free State Legislature outside the standard formula.

• Whether the application should be heard as a matter of urgency
• Whether the late filing of the application should be condoned
• Whether the non-joinder of the President renders the application defective
• Whether the Electoral Court has jurisdiction over broadcasting-related complaints against ICASA and SABC
• Whether the Electoral Commission's processes regarding independent candidates violated sections 19(3), 24, 35, 46, 55, 61, and 62 of the Electoral Act and the Constitution
• Whether the Electoral Court can direct allocation of a seat outside the legislated formula
• Whether the relief sought had become moot

The application was dismissed with no order as to costs.

The binding legal principles established are: (1) Applications to the Electoral Court must comply with Rule 6(1) requiring review applications to be brought within three days of a decision, and failure to do so requires a proper condonation application showing good cause; (2) The Electoral Court's jurisdiction under section 20(1) of the Electoral Commission Act 51 of 1996 is limited to electoral disputes and infringements of the Electoral Code as per section 90 of the Electoral Act, and does not extend to broadcasting regulatory matters involving ICASA and SABC; (3) Relief becomes moot when elections have been concluded and results declared, particularly relief seeking to keep allocation processes open or relating to pre-election matters; (4) The Electoral Court cannot direct allocation of legislative seats outside the formula prescribed by section 105(2) of the Constitution read with item 3(1) of Schedule 3 to the Electoral Act without exceptional circumstances being established; (5) Proper joinder is required for all parties against whom relief is sought or who have a direct and substantial interest in the subject matter, in accordance with natural justice principles; (6) Courts deal with situations that have ripened or crystallized, not prospective or hypothetical ones, following Ferreira v Levin NO & others; Vryenhoek v Powell NO & Others 1996 (1) SA 984 (CC).

The Court made several non-binding observations: (1) Self-created urgency will not be looked upon favourably by the Court; (2) While costs orders are generally not imposed in electoral matters unless conduct has been vexatious, frivolous or abusive (following Arise Afrika Arise (AAAR) v Electoral Commission of South Africa), being unrepresented should not serve as a licence to embark on litigation without proper legal advice; (3) The Court noted that if the applicant was aggrieved by decisions such as the ballot paper format or use of his nickname, he should have challenged these timeously rather than waiting until after the elections; (4) The Court observed that challenging the formula for allocation of seats after elections, without having done so before, is an inappropriate attempt to elevate the Court to a law-making body; (5) Applications seeking to reverse completed electoral processes require clear explanations for delay to enable the Court to exercise its discretion; (6) The Court noted that the applicant's claim about only learning of eligibility on 26 March 2024 was contradicted by his earlier registration on 5 March 2024.

This case clarifies important principles in South African electoral law: (1) It reinforces strict time limits for electoral court applications and the requirement for condonation applications when these are exceeded; (2) It confirms the limited jurisdiction of the Electoral Court under section 20(1) of the Electoral Commission Act 51 of 1996, which is restricted to electoral disputes and Electoral Code infringements, excluding broadcasting regulatory matters; (3) It emphasizes the principle of mootness in electoral matters once elections have been concluded and results declared; (4) It confirms that the Electoral Court cannot deviate from the constitutionally and legislatively prescribed formula for seat allocation without proper legal grounds; (5) It demonstrates the importance of proper joinder of parties, particularly when relief is sought against organs of state like the President; (6) It clarifies that independent candidates have been eligible to participate in elections since June 2023 under the Electoral Amendment Act 1 of 2023; and (7) It establishes that unrepresented litigants, while treated with some leniency regarding costs, must still comply with procedural requirements and cannot use their unrepresented status as a licence for improper litigation.