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

The Giving Foundation NPC brought multiple applications in the Electoral Court seeking to set aside the Proclamation of the National and Provincial Elections published on 23 February 2024. After its second and third applications were dismissed, the Foundation applied for leave to appeal that dismissal. The grounds for leave to appeal were that a court directive required it to file a replying affidavit without specifying a deadline, and that the court should not have decided the matter on the papers without an oral hearing. The applicant did not file a replying affidavit, written argument, or seek clarification from the court after the directive was issued.

The application for leave to appeal was dismissed.

The case confirms that minor procedural lapses by a court do not automatically give rise to appealable irregularities, especially where a litigant fails to act diligently. It underscores the Electoral Court’s practice of deciding matters on the papers and reinforces the threshold for granting leave to appeal, namely reasonable prospects of success.