African National Congress v Electoral Commission of South Africa and Others

The ANC applied to review and set aside the Deputy Chief Electoral Officer's (DCEO) decision of 7 September 2023 to register uMkhonto Wesizwe Political Party (MK) as a political party. MK initially applied for registration, publishing notices in the Government Gazette on 1 June 2023 and 30 June 2023 as required by s 15(4A) of the Electoral Commission Act. On 4 August 2023, the DCEO rejected MK's application due to discrepancies in signatures on the deed of foundation. The rejection letter stated MK could submit a 'fresh application'. MK then supplemented its application, and on 7 September 2023, the DCEO registered MK as a political party. The ANC did not object to MK's application during either 14-day objection period following publication of the notices. The ANC only became aware of the DCEO's decision on 11 September 2023, appealed to the Electoral Commission on 20 September 2023, which dismissed the appeal on 24 November 2023. The ANC instituted this review application on 9 January 2024, outside the prescribed three-day period in s 20(1) of the Electoral Commission Act.

• Whether the ANC's delay in bringing the application should be condoned
• Whether the Electoral Court has jurisdiction to review the DCEO's decision to register MK
• Whether the ANC pre-empted the Electoral Commission's decision by failing to review it
• Whether there was a proper application before the DCEO when he registered MK, specifically whether an application can be 'supplemented' after initial rejection or whether a fresh application is required
• Whether the DCEO acted lawfully and within the scope of s 15(1) of the Electoral Commission Act in registering MK

The application was dismissed with no order as to costs.

The binding legal principles are: (1) Section 15(1) of the Electoral Commission Act permits an application for political party registration to be supplemented after initial rejection; the section requires only that the CEO have before him an application 'in the prescribed manner and form' when registering the party, regardless of whether the application came in phases or supplements. (2) A party who fails to object to a registration application during the 14-day period following publication of the s 15(4A) notice becomes non-suited under s 16(2)(b) from challenging the CEO's decision to register that party. (3) The Electoral Court's jurisdiction under s 20(1) extends only to review of decisions of the Electoral Commission itself, not decisions of the CEO/DCEO that have not been appealed to the Commission. (4) Electoral legislation must be interpreted textually, contextually and purposively with reference to the constitutional political rights in s 19, favoring facilitation rather than obstruction of party registration.

The Court made several important observations beyond the strict ratio: (1) It noted that even if the Court had jurisdiction under s 21(1)(c) of the Superior Courts Act to grant declaratory relief, it doubted whether a specialist court could exercise this jurisdiction in matters where it lacks jurisdiction under its enabling statute. (2) The Court emphasized the timing concerns inherent in electoral disputes, noting that granting the relief sought would prevent MK from re-registering before the upcoming elections, with no consideration given to ameliorating this prejudice under s 172(1)(b) of the Constitution. (3) The Court commented on the Electoral Commission's constitutional duty to promote realization of political rights and its approach of assisting rather than obstructing party registration. (4) The Court affirmed the Biowatch principle that costs are customarily not awarded in the Electoral Court. (5) The Court noted that superior courts have urged courts of first instance to determine all issues in a matter to avoid appeals dealing with issues for the first time, which explains why it addressed the merits despite upholding the points in limine.

This case establishes important principles regarding the registration of political parties in South Africa and access to the Electoral Court. It clarifies that: (1) applications for political party registration may be supplemented after initial rejection without requiring a completely fresh application and new publication of notices; (2) the statutory objection procedure in s 15(4A) and appeal rights in s 16(2)(b) are critical gatekeeping mechanisms - parties who fail to object during the prescribed period become non-suited from later challenging registration; (3) the Electoral Court's jurisdiction under s 20(1) is limited to reviewing decisions of the Electoral Commission, not decisions of the CEO/DCEO that have not been appealed; (4) electoral legislation must be interpreted purposively to facilitate realization of constitutional political rights in s 19, including the right to form political parties. The case demonstrates the courts' reluctance to interfere with political party registration close to elections where procedural requirements have not been met and political rights are at stake. It reinforces that electoral disputes must be raised timeously through prescribed internal mechanisms.