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

The Giving Foundation NPC (the applicant) brought second and third applications seeking to set aside the Proclamation of the National and Provincial Elections dated 23 February 2024. The Electoral Court dismissed these applications in a previous judgment. This was the applicant's third iteration of substantially the same applications seeking the same relief. The court had issued a directive for the filing of a replying affidavit and written argument, but the directive failed to specify a date for the filing of the replying affidavit (although it did specify a date for written argument). The applicant, represented by Y Yame in person, failed to file any written argument or communicate with the court after the directive was issued. The applicant had also declined to appear at a hearing held for the first application.

• Whether a procedural lapse by the court in failing to specify a date for filing a replying affidavit constitutes grounds for leave to appeal
• Whether the court ought to have held an oral hearing rather than deciding the matter on the papers
• Whether there is a reasonable prospect that another court would arrive at a different conclusion

The application for leave to appeal was dismissed.

A procedural lapse by the court (such as failing to specify a date in a directive) is not fatal to the proceedings and does not constitute grounds for leave to appeal where: (1) the required action should have been reasonably clear from the context; (2) the applicant could have sought clarification but failed to do so; (3) the applicant failed to comply with the directive or communicate with the court at all; and (4) it is unlikely that compliance would have made a material difference to the outcome. Leave to appeal will not be granted where there is no reasonable likelihood that another court would arrive at a different conclusion on the grounds advanced.

The court noted that it is the ordinary practice in the Electoral Court to deal with matters on paper. The court observed that the applicant's failure to engage with the court process after the directive was issued, combined with the repetitive nature of the applications, made it particularly appropriate to decide the matter without an oral hearing. The court also suggested that litigants who are uncertain about procedural requirements have a duty to seek clarification from the court's secretary rather than simply ignoring directives.

This case reinforces the Electoral Court's practice of deciding matters on the papers where appropriate, particularly in repetitive applications. It demonstrates the court's approach to procedural irregularities that do not materially affect the outcome, and emphasizes the duty of litigants to seek clarification when court directives are unclear rather than simply ignoring them. The case also illustrates the application of leave to appeal principles in the electoral law context, particularly the requirement that there must be a reasonable prospect of another court arriving at a different conclusion.