The Giving Foundation NPC v Electoral Commission of South Africa and Another

The Giving Foundation NPC, a non-profit organisation acting in the interests of eligible voters, applied to the Electoral Court to set aside Proclamation 158 of 2024, by which the President called and set dates for the 2024 national and provincial elections. The Foundation alleged that the proclamation was unconstitutional because it provided only one voting day, which it claimed did not comply with section 49(2) of the Constitution. On this basis, it further alleged that the President and the Electoral Commission contravened section 87(4) of the Electoral Act by proceeding with an allegedly unlawful election. The Foundation sought declaratory relief, a warning to the President and Commission, and an order setting aside the proclamation. The applicant did not appear at the hearing and filed no replying affidavit.

The application was dismissed. No costs order was made.

This case clarifies the limits of the Electoral Court’s jurisdiction in constitutional matters involving presidential obligations. It reinforces the principle that allegations that the President has failed to fulfil a constitutional obligation fall within the exclusive jurisdiction of the Constitutional Court under section 167(4)(e). The judgment also affirms the principle of factual validity of executive acts, such as proclamations, until set aside by a competent court.