Malawu v The Electoral Commission and Others

The applicant, Mr Siyabulela Malawu, was elected as a councillor for Amahlati Ward 13 in 2016. During 2018 and 2019 he was accused of breaches of the Code of Conduct for councillors, including failure to attend three consecutive council meetings. Following an investigation, the MEC for Co‑operative Governance and Traditional Affairs, Eastern Cape, removed him from office in March 2020. The applicant unsuccessfully sought to review this removal in the High Court, which dismissed his application on 3 November 2020. He then applied for leave to appeal. Shortly thereafter, he launched an urgent application in the Electoral Court seeking to postpone a by‑election scheduled for 11 November 2020, alternatively to extend the statutory 90‑day period for holding the by‑election. He did not join the political parties or candidates contesting the by‑election.

The urgent application to postpone the by‑election was dismissed. No order as to costs was made.

The case underscores the strict application of the doctrine of necessary joinder in electoral disputes and affirms that political parties and candidates have a direct and substantial interest in by‑election litigation. It clarifies that personal prejudice to a former councillor does not meet the statutory threshold for postponing an election and that pending leave to appeal does not suspend removal from office.