Khumalo v Electoral Commission of South Africa and Others

Jabulani Khumalo (the applicant) registered the Umkhonto Wesizwe Political Party (MKP) with the Electoral Commission on 7 September 2023, with himself recorded as party leader. On 27 February 2024, Khumalo requested the Commission to add new persons to MKP's Interim Leadership Core (ILC), including Ms Duduzile Zuma-Sambudla. On 9 March 2024, the ILC appointed Ms Zuma-Sambudla as liaison person with the Commission. On 9 April 2024, two letters were sent to the Commission: JK7 requesting that Jacob Zuma's photo appear on the ballot paper as MKP's presidential candidate, and JK6 communicating Khumalo's resignation as party leader and requesting that Zuma replace him in that position. Khumalo alleged that Ms Zuma-Sambudla forged his signature on JK6. The Commission changed MKP's records to reflect Zuma as party leader. Subsequently, Zuma expelled Khumalo from MKP. Khumalo brought an urgent application to review and set aside the Commission's decision, alleging it acted ultra vires by accepting a fraudulent letter not complying with regulation 9 of the Regulations for the Registration of Political Parties, 2004.

• Whether the Electoral Court's jurisdiction in terms of s 20(1) of the Electoral Commission Act 51 of 1996 is properly engaged
• Whether the applicant has locus standi to bring the application as an expelled member of MKP
• Whether the applicant delayed bringing the application and if so, whether the delay may be condoned or overlooked in the interests of justice
• Whether Ms Duduzile Zuma-Sambudla forged the applicant's signature on JK6
• Whether the Commission breached regulation 9 of the Regulations for the Registration of Political Parties when it acted on the request to change MKP's leadership particulars
• Whether the award of punitive costs is warranted

The application was dismissed. The applicant was ordered to pay the third and fourth respondents' costs on the attorney and client scale.

An expelled member of a political party who does not challenge their expulsion lacks locus standi to bring an application for relief concerning the leadership of that political party, as the relationship between a political party and its members is contractual and only members are entitled to approach a court for relief for breaches of the party's constitution or rules. The Electoral Commission's determination that a written notification to update a registered political party's records complies with regulation 9 of the Regulations for the Registration of Political Parties constitutes a reviewable decision relating to an electoral matter within the meaning of s 20(1)(a) of the Electoral Commission Act 51 of 1996. Urgency in review applications brought to the Electoral Court is a statutory requirement prescribed by s 20(1)(b) read with Electoral Court Rules 6 and 10, requiring applications to be lodged within 3 days of the decision, and this requirement is distinct from Uniform Rule 6(12). Regulation 9 of the Regulations for the Registration of Political Parties requires written notification from the party leader but does not require that the leader personally deliver the notification to the Commission; the Commission acts reasonably and intra vires when it accepts written notification sent by an authorized liaison person in circumstances where the Commission reasonably believes it is from the party leader.

The Court noted that s 172 of the Constitution is repeatedly relied upon by parties in the Electoral Court to engage jurisdiction, and confirmed that the Electoral Court does enjoy powers under s 172 to declare conduct unconstitutional and grant consequential relief. However, the Court observed that in this case s 19 (political rights) was not implicated because Khumalo had already been afforded his right to form a political party through the successful registration of MKP. The Court expressed concern that Khumalo did not address the respondents' averments regarding his expulsion in his replying affidavit or heads of argument. The Court noted that ordinarily, to encourage parties to exercise their political rights, the Electoral Court does not grant costs orders, but that exceptional conduct such as perjury and abuse of process warrants departure from this practice. The Court also observed that it is inappropriate for counsel to compare documents and make factual submissions from the bar regarding issues such as handwriting, signatures, and formatting, as this denies the opposing party an opportunity to respond, and that expert evidence is necessary to prove allegations of forgery.

This case clarifies the Electoral Court's jurisdiction under s 20(1) of the Electoral Commission Act, confirming that the Commission's determination of whether a notification complies with regulation 9 constitutes a reviewable decision relating to an electoral matter. It reinforces that political parties are a primary mechanism through which citizens participate in elections. The judgment establishes important principles regarding locus standi in political party disputes, holding that expelled members who do not challenge their expulsion lack standing to seek relief concerning party leadership. It applies the contractual nature of the relationship between political parties and members as established in Ramakatsa v Magashule. The case also emphasizes the strict urgency requirements for review applications in the Electoral Court, applying the three-day time limit in s 20(1)(b) and Rule 6 as a statutory requirement distinct from Uniform Rule 6(12). It demonstrates the Court's willingness to impose punitive costs where applicants commit perjury and abuse the court's process, particularly in the electoral context where frivolous litigation wastes judicial resources during time-sensitive electoral periods.