Cape Independent Party (CIP) v The Electoral Commission of South Africa

The Cape Independent Party (CIP), an unrepresented registered political party, intended to contest the Western Cape provincial elections scheduled for 29 May 2024. According to the Electoral Commission, CIP was disqualified by operation of law from contesting the elections for failing to comply with section 27(2)(cB) of the Electoral Act 73 of 1998. By the deadline of 17:00 on 8 March 2024, CIP had submitted and uploaded onto the Online Candidate Nomination System (OCNS) the details and signatures of only 5400 verified supporters, when legally required to submit at least 7176 voter supporters (15% of the quota for the Western Cape). CIP contended that it failed to complete the submission because the OCNS portal became defunct at 17:00 while they were uploading files, and blamed technical difficulties and internet failures. CIP thereafter emailed the complete list of supporters to an address provided by Commission employees. CIP sought to review and set aside the disqualification and be allowed to contest the elections.

• Whether CIP's non-compliance with the peremptory provisions of section 27(2)(cB) of the Electoral Act disqualified it from contesting the elections
• Whether such non-compliance could be condoned by the Electoral Commission
• Whether the Commission had taken a reviewable decision to refuse email submission of the balance of supporter requirements
• Whether the OCNS system was ineffective and whether this excused non-compliance
• Whether the factual disputes should be resolved under the Plascon Evans principle

The application was dismissed with no order as to costs. CIP remained disqualified from contesting the Western Cape provincial elections scheduled for 29 May 2024.

An unrepresented political party that fails to submit the required number of voter supporters' signatures by the deadline in the electoral timetable, as required by section 27(2)(cB) of the Electoral Act, is disqualified by operation of law from contesting the election. The Electoral Commission has no discretion to condone such non-compliance. The peremptory nature of section 27 requirements serves the foundational constitutional values of democracy and universal suffrage under section 1(d) and the political rights in section 19 of the Constitution. Adherence to electoral deadlines is crucial to electoral integrity and the perception that elections are free and fair. Where a party is disqualified by operation of law, there is no administrative decision capable of review. The Commission's development and use of the OCNS is a legitimate exercise of its powers under section 190(2) of the Constitution and section 5(1)(i) of the Electoral Commission Act to promote electoral technology.

The Court observed that laws and regulations should be interpreted to promote political participation, but this principle serves both the right to stand for political office and to vote, requiring interpretation that promotes section 19 political rights in the Constitution. The Court noted the transformative imperatives requiring the Commission to ensure promotion of technological advancement in electoral law, recognizing challenges faced by South African citizens denied opportunities for technological skills development in the past. However, the Court emphasized that electoral law is not stagnant and must align with transformative improvements. The Court commented that CIP only scheduled two days (7-8 March 2024) to upload the candidates' list despite the introduction of the new OCNS instrument, suggesting insufficient preparation. The Court noted that elections must not only be free and fair but must be perceived as free and fair, requiring even-handedness in dealing with all political parties. The Court observed that allowing parties to contest elections despite non-compliance would place the Commission in an impossible position of having to make case-by-case decisions, risking accusations of favouring one party over another.

This case confirms the strict and peremptory nature of electoral deadlines and requirements under section 27 of the Electoral Act. It establishes that the Electoral Commission has no discretion to condone non-compliance with statutory deadlines for submission of candidates' lists and supporters' lists. The judgment reinforces the principle that electoral deadlines serve to ensure fairness, integrity and even-handedness in elections, and that parties disqualify themselves by operation of law when they fail to comply. The case also recognizes the constitutional imperative for technological advancement in electoral processes (OCNS) as part of the Commission's mandate under section 190(2) of the Constitution. It demonstrates the application of the Plascon Evans principle in electoral disputes and confirms the Biowatch costs principle in Electoral Court proceedings.