Luthuli and Others v The Electoral Commission of South Africa and Ndlovu and Others v The Electoral Commission of South Africa

Following the 2021 Local Government Elections held on 1 November 2021, four individuals who contested in eThekwini Municipality Ward 7 (Sandile Jerome Luthuli, Thamsanqa Mkhize, Nicolas Nxumalo and Mr Ndlovu of the New Freedom Party) lodged an objection with the Independent Electoral Commission (IEC) on 3 November 2021 in terms of section 65(1) of the Local Government: Municipal Electoral Act 27 of 2000. The objection alleged: (1) a missing ballot box number or serial number at Ntshongweni Primary voting district, and (2) that the ANC was campaigning openly at Damini voting district. The objection called for a by-election in Ward 7. On 6 November 2021, the IEC dismissed the objection for lacking merit and having no evidence showing materiality to the election outcome. Three of the original complainants then launched an application to the Electoral Court seeking to set aside the IEC's decision. A separate Notice of Motion was filed by eight different individuals (second applicants) raising entirely new complaints not contained in the original objection, including electricity outages, non-utilization of Voter Management Devices, people turned away from voting, and various procedural irregularities.

• Whether the applicants exhausted internal remedies before approaching the Electoral Court
• Whether new allegations not contained in the original objection could be raised in the appeal proceedings
• Whether the applicants complied with procedural requirements for objections under section 65 of the Electoral Act
• Whether the objection met the materiality test prescribed in section 65(1) of the Electoral Act
• Whether there was non-joinder of necessary and interested parties
• Whether the application was defective for lack of a proper founding affidavit
• Whether condonation should be granted for late filing of the IEC's opposing affidavit

1. The respondent's (IEC's) application for condonation of late filing of the opposing affidavit was granted. 2. The entire application was dismissed. 3. No order as to costs.

The binding legal principles established are: (1) New allegations not contained in an original objection to the IEC cannot be raised for the first time in an appeal to the Electoral Court - internal remedies must be exhausted first; (2) The requirements of section 65(2) of the Local Government: Municipal Electoral Act 27 of 2000 are peremptory, and objectors must comply with all prescribed requirements, including providing supporting documentation when lodging the objection; (3) An objection must satisfy the materiality test in section 65(1) and demonstrate how the alleged irregularities would or did affect the outcome of the election results; (4) The Electoral Court cannot appeal a decision the IEC never made on objections that were never properly lodged; (5) Vague and unsubstantiated allegations without particularity, detail, or supporting evidence are insufficient to meet the requirements for a valid electoral objection; and (6) All necessary and interested parties, including other candidates and parties accused of wrongdoing, must be joined in proceedings seeking a by-election.

The Court noted with understanding that the applicants were laymen, suggesting some sympathy for their lack of legal sophistication. However, the Court emphasized that this could not excuse fundamental procedural failures. The Court also observed that the filing of separate and different Notices of Motion by the two sets of applicants was an irregularity. While the Court expressed some understanding that there might be an explanation for this given the applicants' status as laymen, it nonetheless found this irregularity problematic, particularly when combined with the other defects in the applications.

This case is significant in South African electoral law as it clarifies important procedural requirements for challenging election results. It establishes that: (1) objectors must exhaust internal remedies with the IEC before approaching the Electoral Court and cannot raise new grounds on appeal that were not part of the original objection; (2) the requirements of section 65(2) of the Electoral Act are peremptory and must be strictly complied with, including the provision of supporting documentation at the time of lodging the objection; (3) objections must satisfy the materiality test in section 65(1) and cannot consist of vague, unsubstantiated allegations; (4) proper procedural compliance is essential in electoral challenges, including filing founding affidavits and joining necessary parties; and (5) the Electoral Court will not entertain applications that fail to meet basic procedural requirements. The judgment reinforces the importance of procedural rigour in electoral disputes and protects the finality of election results from unsubstantiated challenges.