Electoral Commission of South Africa and Another v Speaker of the uMhlathuze Local Council and Others

Following the 1 November 2021 local government elections, the uMhlathuze Local Council convened a meeting to appoint its representatives to the King Cetshwayo District Council in terms of Schedule 2 to the Local Government: Municipal Structures Act 117 of 1998. During this meeting, ANC councillors walked out and one NFP councillor abstained. Although a quorum remained, only the IFP, DA and EFF submitted candidate lists. After applying the quota and surplus calculations under items 19 and 20 of Schedule 2, seven of the ten seats were allocated. The Electoral Commission’s officials nevertheless proceeded to allocate the remaining three seats in a further round, resulting in the election of the eighth, ninth and tenth respondents. Approximately nine months later, after an internal audit revealed the error, the Electoral Commission sought to review and set aside its own decision, contending that the additional allocation was unlawful.

The election of the eighth, ninth and tenth respondents as members of the King Cetshwayo District Council was declared unlawful, unconstitutional and invalid; the Commission’s decision was reviewed and set aside; the councillors were ordered to vacate office within 14 days; past decisions of the District Council were protected from invalidity; prior payment of salaries and benefits was declared lawful; no order as to costs was made.

The judgment clarifies the interpretation of item 20 of Schedule 2 to the Municipal Structures Act and confirms that unallocated district council seats may lawfully remain vacant where statutory requirements are not met. It reinforces the principle of legality in electoral administration, affirms that organs of state may review their own unlawful decisions, and illustrates the flexible approach to delay in legality reviews where constitutional compliance and legal certainty are at stake.