Operation Dudula v Electoral Commission of South Africa and Another

Operation Dudula (OD), an unrepresented political party registered under the Electoral Commission Act 51 of 1996, sought to contest the 29 May 2024 national and provincial elections. On 8 March 2024, OD paid R300,000 for contesting national elections and R150,000 for three provincial elections (Limpopo, Gauteng, and Western Cape). OD's authorized agent successfully uploaded its provincial candidate lists through the Electoral Commission's Online Candidate Nomination System (the portal) using reference number C118536. However, OD alleged that when attempting to upload its National Assembly candidate list, the portal malfunctioned and prevented the upload before the 17:00 deadline on 8 March 2024 as required by the election timetable. OD emailed the list to Commission officials at 16:56 but was notified on 26 March 2024 that it was disqualified from contesting the National Assembly election for non-compliance with submission requirements.

• Whether the Electoral Commission's online portal malfunctioned on 8 March 2024, preventing OD from submitting its National Assembly candidate list
• Whether OD's failure to submit its candidate list by the statutory deadline justified disqualification from the National Assembly election
• Whether the Electoral Commission acted rationally in insisting on compliance with the election timetable deadlines
• Whether the Electoral Commission has power to grant ad hoc condonations for non-compliance with the election timetable
• Whether OD's review application was brought timeously

1. OD's application for condonation of the late filing of the replying affidavit is granted. 2. The Commission's application for condonation of the late filing of the answering affidavit is granted. 3. The application is dismissed with no order as to costs.

The binding legal principle is that electoral timetables and the deadlines set therein are essential for facilitating free and fair elections, and the Electoral Commission has no discretion to grant ad hoc condonations or indulgences for non-compliance with statutory deadlines. All parties must be held to the same rules to ensure electoral authorities remain neutral and elections are perceived as free and fair. A party alleging portal malfunction or technical difficulties bears the burden of providing evidence to support such allegations. Where a party fails to provide evidence of technical failures and the evidence shows the party's own actions (such as de-selecting election options) contributed to non-compliance, the Commission's insistence on compliance with deadlines cannot be considered irrational. Section 27(1) of the Electoral Act read with the election timetable promulgated under section 20 creates strict deadlines that must be complied with, and the Commission lacks power to alter these deadlines.

The Court made observations about the balance between political rights under section 19 of the Bill of Rights and the responsibilities that accompany those rights, noting that parties have a responsibility to ensure compliance with set rules to enable them to contest elections. The Court also commented that the portal does not provide automatic feedback to political parties about their qualification status, which explains why OD only became aware of its disqualification on 26 March 2024 when it made enquiries. The Court expressed willingness to give OD the benefit of the doubt regarding when it became aware of the Commission's decision, rejecting the Commission's submission that OD should have known immediately after 17:00 on 8 March 2024. The Court reiterated the general rule in electoral matters that costs are not imposed on a losing party unless their conduct has been vexatious, frivolous or abusive of court processes, and found no reason to depart from this rule.

This case establishes important principles regarding the strict application of electoral timetables and deadlines in South African election law. It confirms that the Electoral Commission has no power to grant ad hoc condonations for non-compliance with statutory deadlines set in election timetables, and that such strict compliance is essential for maintaining the neutrality of electoral authorities and ensuring elections are perceived as free and fair. The judgment reinforces that political parties bear responsibility for ensuring timely compliance with electoral requirements, and that technical difficulties without supporting evidence will not excuse non-compliance. The case demonstrates the Electoral Court's approach to balancing political rights under section 19 of the Constitution with the practical necessity of enforcing electoral rules uniformly across all parties.