Academic Congress Union v Independent Electoral Commission

The Academic Congress Union (ACU), represented by Mr Bongumusa Knoledge Ngwema (Sub-Regional Chairperson), participated in the Local Government Elections held on 01 November 2021 at Mthonjaneni Municipality (KZ 285). Five political parties participated in total: IFP, ANC, EFF, NFP, and ACU. A total of 25 seats were allocated (13 ward seats and 12 proportional representation seats). The IFP won the elections, ANC came second, and ACU came third, receiving one seat. ACU objected to the results on the basis that: (1) the IEC failed to provide adequate counting space as promised, instead using a small office where auditors were separated from Party Liaison Committee members and could not observe the capturing process; (2) there was a discrepancy in seat allocation showing 26 seats instead of 25; (3) when they lodged a grievance on 03 November 2021 at 19h23, they were told they had missed the 17h00 deadline, despite only receiving seat allocation documents at 16h50. ACU alleged there were "shenanigans" during the capturing process and claimed to have photos showing discrepancies between on-scene results and those presented by the IEC.

• Whether the application was fatally defective due to non-joinder of interested parties
• Whether the application constituted a review or an appeal and whether it was time-barred
• Whether the applicant had complied with the requirement to lodge a formal objection with the IEC in terms of section 65 of the Municipal Electoral Act 27 of 2000
• Whether the alleged irregularities were sufficient to justify altering the results and ordering a municipality-wide recount
• Whether the IEC should have been given an opportunity to investigate the objection before the matter was brought to court

The application was dismissed. There was no order as to costs.

The binding legal principles established are: (1) An application to the Electoral Court challenging election results is fatally defective if it fails to join all interested parties, including competing political parties and the affected municipality; (2) A formal objection must be lodged with the IEC in terms of section 65 of the Municipal Electoral Act 27 of 2000 before an application can be brought to the Electoral Court; (3) The IEC must be afforded an opportunity to investigate and determine objections to election results before the Electoral Court will entertain an application for review or appeal; (4) Where an objection is submitted late, section 65(2) of the MEA provides a mechanism for condonation if good cause is shown, and this administrative remedy must be exhausted; (5) Applications to set aside election results must be supported by concrete evidence of irregularities that would justify altering the results, not vague or unsubstantiated allegations; (6) The Electoral Court will not entertain applications that amount to an abuse of court processes by bypassing the administrative procedures designed to ensure the integrity of the electoral process.

The Court made several non-binding observations: (1) The alleged "shenanigans" mentioned by the applicant, which were not detailed in the application, would need to be channeled through appropriate investigative fora rather than being dealt with by the Electoral Court; (2) The IEC's role as a catalyst in ensuring the integrity of the electoral process requires that it be given a proper opportunity to investigate allegations and contribute to the substantive evolution of the right to vote as entrenched in section 19 of the Constitution; (3) The presentation of further evidence about alleged irregularities only if given an opportunity amounts to an abuse of court processes when such evidence has not first been presented to the IEC for investigation; (4) The Court noted that justifiable reasons for missing the deadline could have provided an opportunity for the IEC to exercise its discretion to condone the late objection, suggesting that the applicant may have had a remedy if proper procedures had been followed; (5) The Court emphasized that the IEC's investigation and determination of objections ensures that electoral outcomes are not just procedurally free and fair but contribute to the substantive evolution of the constitutional right to vote.

This case is significant in South African electoral law as it reinforces the procedural requirements for challenging election results and emphasizes the importance of the administrative process before approaching the Electoral Court. It establishes that: (1) parties with a direct interest in election outcomes must be joined in applications challenging those results; (2) the statutory framework requiring formal objections to be lodged with the IEC under section 65 of the MEA must be strictly followed; (3) the IEC must be given an opportunity to investigate and determine objections before the Electoral Court will entertain an application; (4) vague allegations without supporting evidence are insufficient to justify setting aside election results; (5) the exhaustion of administrative remedies is a prerequisite to approaching the Electoral Court. The judgment underscores the Court's commitment to upholding procedural fairness and the integrity of the electoral system by ensuring that the IEC, as the constitutionally mandated body, exercises its investigative and determinative functions before judicial intervention.