Action SA v The Electoral Commission of South Africa

ActionSA, a political party formed in 2020 and registered in terms of section 15 of the Electoral Commission Act 51 of 1996, sought to participate in the 2021 local government elections (LGE 2021). When registering, ActionSA chose not to register an abbreviated name or acronym, as this was optional under section 15(2)(c) of the Commission Act. The Electoral Commission (IEC), exercising its powers under section 23 of the Local Government: Municipal Electoral Act 27 of 2000, designed the ward ballot papers to include only registered abbreviated names/acronyms of political parties. As ActionSA had not registered an abbreviation, its name was excluded from the ward ballot paper, though its candidates' names and logo appeared. ActionSA's full name appeared on the PR ballot paper. ActionSA objected to this exclusion, requesting that its full name 'ActionSA' (8 characters) be used in place of an abbreviation. The IEC refused. ActionSA launched urgent proceedings seeking to review and set aside the IEC's decision as unconstitutional and unlawful, and requesting that ballot papers be reprinted or amended to include its name.

• Whether the IEC's decision to exclude ActionSA's name from the ward ballot paper was lawful and constitutional
• Whether the IEC's interpretation and exercise of its powers under section 23 of the Municipal Electoral Act was correct
• Whether the IEC's design of ballot papers using only registered abbreviated names was rational and lawful
• Whether the IEC violated ActionSA's constitutional rights under sections 19 and 190 of the Constitution
• Whether the relief sought by ActionSA was just and equitable in the circumstances
• Whether the IEC fulfilled its constitutional duties to ensure free and fair elections and promote democratic electoral processes

The application was dismissed with no order as to costs.

The binding legal principles established are: (1) The Electoral Commission's power under section 23 of the Municipal Electoral Act to determine ballot paper design is broad but must be exercised rationally, consistently, and in accordance with constitutional principles of fairness and equality; (2) Where the IEC determines to use registered abbreviated names on ballot papers, it cannot arbitrarily use full names for some parties without violating principles of even-handedness and equality before the law; (3) The IEC cannot unilaterally select or accept an abbreviation for a political party that has not registered one through the proper statutory procedures under section 15 of the Commission Act; (4) Political parties' failure to register optional information (such as abbreviated names) at the time of registration is a self-created problem for which courts will not grant relief that would prejudice other participants and undermine electoral integrity; (5) Relief that would require postponing elections, reprinting ballot papers, and prejudicing all other stakeholders will not be granted unless there is a clear constitutional or legal violation; (6) The exercise of public power must be rationally related to the purpose for which it was given, and the IEC's decisions must comply with this requirement of the rule of law.

Moshidi AJ made several non-binding observations: (1) It is concerning that political party leadership still does not see it necessary to fully acquaint themselves with statutory provisions applicable to elections, including constitutional provisions; (2) Voter education for membership and supporters will continue to be important and indispensable in South Africa's developing constitutional democracy; (3) The question arises how leaders who do not understand electoral laws will successfully govern the institutions into which they seek to be elected; (4) Press outbursts by political party leaders against the IEC are irrelevant and unhelpful in resolving electoral disputes constructively; (5) The IEC may not consult with individual political parties privately about ballot paper design as this would violate principles of natural justice (audi alteram partem); (6) Political party practices, rules and guidelines applied by the IEC must be of general application to ensure equality. The dissenting judgment observed that: (1) The IEC's decision effectively made abbreviation registration a requirement when no law provides for this; (2) The IEC failed to warn parties that abbreviations would be required for ballot papers; (3) The IEC should not 'manage by ambush' but should be proactive and transparent; (4) The IEC should act not as an umpire only but should provide unbiased guidance to political parties; (5) Had the IEC concentrated on finding a solution rather than focusing on ActionSA's failure to register an abbreviation, a solution could have been found.

This case clarifies the scope of the Electoral Commission's powers under section 23 of the Municipal Electoral Act to design ballot papers and emphasizes the importance of political parties complying with registration requirements. It establishes that once the IEC determines to use particular identifiers (such as abbreviated names) on ballot papers, it must apply this consistently to all parties to maintain even-handedness and electoral integrity. The judgment reinforces that the IEC's exercise of discretion must be rational, fair, and consistent with its constitutional obligations under sections 19 and 190 of the Constitution. It also highlights that courts will not grant relief that undermines electoral integrity or amounts to condoning non-compliance with statutory requirements, particularly where this would prejudice other participants and voters. The case underscores the responsibility of political parties to familiarize themselves with electoral statutory provisions and the consequences of failing to do so. The dissenting judgment raises important questions about the balance between the IEC's discretionary powers and its duty to promote inclusive democratic participation.