African Economic Freedom v Electoral Commission of South Africa

The African Economic Freedom (AEF), a registered political party, sought to contest the general elections scheduled for 29 May 2024. The Election Timetable required parties to pay deposits by 17h00 on 8 March 2024 in terms of section 27(2) of the Electoral Act, 73 of 1998. The AEF attempted to pay a deposit of R750,000 on 8 March 2024 through a donor's bank account (a third-party legal entity), not its own account. The bank reversed the payment on the same day, referring it to the fraud department for investigation due to the large amount. The money never reached the IEC's account by the 17h00 deadline. The AEF subsequently made payments on 11 and 12 March 2024 (R500,000 and R250,000 from two different legal entities). On 26 March 2024, when the IEC published the list of party candidates, the AEF discovered it was not included. The AEF was advised it had been disqualified for failing to pay the deposit on time. The AEF's objection was not upheld, and it applied to the Electoral Court for review of the IEC's decision, claiming substantial compliance with section 27(2).

• Whether the AEF complied with section 27(2) of the Electoral Act, 73 of 1998, specifically the requirement to pay the deposit by the deadline specified in the Election Timetable
• Whether substantial compliance with section 27(2) was sufficient to condone non-compliance with the payment deadline
• Whether the IEC has power to condone non-compliance with deadlines set out in the Election Timetable
• Whether the IEC's conduct in insisting on strict compliance with the deadline was lawful, reasonable and rational
• Whether a purposive interpretation of section 27(2) permits late payment when other requirements are met

The application was dismissed with no order as to costs.

Section 27(2) of the Electoral Act, 73 of 1998, imposes mandatory requirements that must be strictly complied with, including the payment of deposits by the deadline specified in the Election Timetable. Substantial compliance does not suffice where the statute prescribes specific mandatory requirements with deadlines. The IEC has no power to condone non-compliance with section 27 requirements, including late payment of deposits. Proof of attempted payment does not constitute compliance with section 27(2)(e); actual payment received in the IEC's account by the statutory deadline is required. Where a party's failure to meet electoral deadlines is attributable to its own conduct and not to any unlawful, unreasonable or irrational conduct by the IEC, there is no basis for judicial review. The Election Timetable issued under section 20 of the Electoral Act is binding, and strict adherence to its deadlines is crucial to electoral integrity and constitutes lawful, reasonable and rational conduct by the IEC. While electoral legislation must be interpreted purposively to promote enfranchisement and participation, this does not permit courts to override mandatory statutory requirements or deadlines.

The Court noted that the AEF's conduct raised unanswered questions: why payment was attempted only on the last day, why a third party's account was used rather than the party's own account, what arrangements were made with the third party, and why subsequent payments came from two different legal entities. The Court noted these matters without exploring the party's obligations regarding declaration of donations above prescribed thresholds, as this was unnecessary given that the attempted payment never reached the IEC's account on time. The Court observed that the relief sought by the AEF was not a simple administrative remedy but constituted radical remedial relief with potential to derail the entire election process. The Court noted that delays or amendments to the Election Timetable would have a cascading effect on election preparations, justifying strict compliance. The Court commented that it had received a flurry of similar applications by different parties over the preceding three months relating to non-compliance with section 27(2), suggesting a pattern of parties failing to meet electoral deadlines.

This case clarifies the strict approach South African courts take to compliance with electoral deadlines and procedures. It establishes that substantial compliance is insufficient where the Electoral Act prescribes mandatory requirements with specific deadlines set out in the Election Timetable. The judgment reinforces the importance of electoral integrity through rigorous adherence to statutory deadlines and confirms that the IEC has no discretionary power to condone late compliance with section 27 requirements. The case demonstrates the court's reluctance to interfere with electoral processes close to election day where non-compliance results from a party's own failures rather than IEC conduct. It also clarifies that proof of attempted payment does not constitute compliance; actual payment into the IEC's account by the deadline is required. The judgment is significant in balancing the constitutional imperatives of promoting enfranchisement and participation against the need for administrative certainty and integrity in electoral processes.