Februarie and Another v Electoral Commission of South Africa and Another

Ronald Februarie and Johan Andrew Phillips are members of Siyathemba Community Movement (SCM), a registered political party in the Northern Cape Province. Since December 2021, they have been engaged in a leadership dispute. SCM won four seats in the 2021 local government elections. Mr Phillips is the registered leader and Mayor. In December 2021, Mr Februarie purportedly suspended and dismissed Mr Phillips and others. Mr Februarie requested the Commission to amend SCM's proportional representatives list. The Commission refused, citing lack of jurisdiction over internal party disputes. In the first SCM application (February 2022), the Electoral Court found Mr Februarie lacked locus standi and dismissed the application on the basis of lis pendens. The Northern Cape High Court in May 2023 found Mr Phillips' expulsion unlawful and declared Mr Februarie not authorized to act on behalf of SCM. On 31 May 2023, Mr Olyn requested the Commission to implement changes. The Commission refused on 9 June 2023, stating only the registered leader could request changes per Regulation 9. Mr Februarie then brought this application on 13 June 2023 seeking: (a) a declaration that Regulation 9 is unconstitutional; (b) an order compelling the Commission to implement SCM's General Assembly resolutions and amend registered particulars; and (c) a declaration that the SCM District Management Structure's term has expired and compelling new elections.

• Whether the Electoral Court has jurisdiction to review the Commission's decision under s 20(1)(a) or hear an appeal under s 20(2)(a) or (b) of the Electoral Commission Act
• Whether the application engages the Court's jurisdiction under s 20(2A) relating to party leadership disputes
• Whether Mr Februarie has locus standi to bring the application on behalf of SCM
• Whether the matter is res judicata following the first SCM judgment and the high court judgment
• Whether the application meets the urgency requirements under s 20(1)(b) and the Electoral Court Rules
• Whether Regulation 9 of the Regulations for the Registration of Political Parties 2004 is unconstitutional as violating s 19(1)(b) political rights
• Whether the Commission breached its duties under s 5(1)(f) of the Electoral Commission Act by refusing to amend SCM's registered particulars
• Whether the term of SCM's District Management Structure has expired

Application dismissed with no order as to costs (majority position on costs prevailed over Judge Modiba's dissenting view proposing punitive costs against the first applicant personally).

Regulation 9 of the Regulations for the Registration of Political Parties 2004, which requires that only the registered leader of a party may notify the Chief Electoral Officer of changes to the party's registered particulars, is constitutional and does not violate s 19(1)(b) political rights. The regulation advances democracy by protecting the Electoral Commission from being drawn into internal party disputes and protects political parties from unauthorized amendments by unelected factions. The Electoral Commission's refusal to amend a political party's registered particulars at the request of a person who is not the registered leader is lawful and consistent with its duties under s 5(1)(f) of the Electoral Commission Act. Where a person has been declared by a court not to be authorized to act on behalf of a political party, that person lacks locus standi to bring applications on behalf of the party. The principle of res judicata applies where the same parties seek substantially the same relief based on the same cause of action, even if framed differently, to prevent endless litigation and give effect to finality of judgments.

Judge Zondi (in dissent on costs) observed that in constitutional litigation before the Electoral Court, particularly involving unrepresented litigants, costs should generally not be awarded against an unsuccessful party unless the proceedings are frivolous and vexatious, consistent with the principles in Biowatch Trust v Registrar Genetic Resources. The fact that claims are inelegantly pleaded by an unrepresented litigant should not be used as a basis to order costs against them. Where a litigant brings a constitutional challenge to legislation, albeit in the wrong forum, this does not necessarily constitute frivolous conduct warranting a punitive costs order. The majority judgment noted that the Commission correctly elected not to enter the fray of the leadership dispute given its constitutional mandate to act independently and impartially. The Court observed that where party members are embroiled in internal disputes affecting their political rights, they have recourse under s 34 of the Constitution to have disputes resolved through the courts, which is the proper avenue rather than compelling the Commission to resolve such disputes.

This case clarifies the Electoral Court's jurisdiction under different subsections of s 20 of the Electoral Commission Act, particularly distinguishing between review jurisdiction (s 20(1)(a)), appeal jurisdiction (s 20(2)(a) and (b)), and jurisdiction over party leadership disputes (s 20(2A)). It reinforces the principle that the Electoral Commission must remain independent and impartial and should not be drawn into internal party disputes. The judgment affirms that Regulation 9, requiring the registered party leader to request changes to registered particulars, is constitutional and serves to protect both the Commission's independence and political parties from unauthorized amendments by unelected factions. The case demonstrates the res judicata principle's application to prevent relitigation of the same disputes. It also illustrates the tension between the general Electoral Court practice of not awarding costs to encourage exercise of political rights versus the need to deter abuse of process, with the majority opting for no costs in constitutional litigation involving an unrepresented party.