African Transformation Movement v Electoral Commission of South Africa and Others

The African Transformation Movement (ATM), a registered political party that participated in the May 2024 National and Provincial Elections (2024 NPE) and won two seats in the National Assembly and one in a Provincial Legislature, brought an application to the Electoral Court seeking declaratory relief regarding the validity and lawfulness of the 2024 NPE. ATM sought an order declaring the elections not 'free and fair', declaring the results announced on 2 June 2024 as null and void, declaring section 24A of the Electoral Act 73 of 1998 unconstitutional as limiting the right to vote under section 19(3) of the Constitution, and directing a re-run of the elections within 90 days. ATM alleged various irregularities including inaccuracies and inconsistencies in the voters' roll, discrepancies in ballot boxes, malfunction of Voter Management Devices (VMDs), and misconduct by certain Commissioners, which ATM claimed amounted to vote rigging and corruption. The Electoral Commission of South Africa (the Commission) and the Democratic Alliance (DA) opposed the application on the basis that ATM failed to demonstrate serious irregularities that would justify declaring the elections not free and fair, and raised several legal points in limine including non-joinder, lack of proper service, lack of jurisdiction, and non-compliance with timeframes for instituting reviews under Electoral Court Rule 6.

• Whether the 2024 National and Provincial Elections were 'free and fair' based on the alleged irregularities
• Whether the results of the 2024 NPE should be declared null and void and set aside
• Whether section 24A of the Electoral Act is unconstitutional for limiting the right to vote under section 19(3) of the Constitution
• Whether ATM complied with the procedural requirements of section 55 of the Electoral Act regarding objections to election outcomes
• Whether ATM provided credible evidence to support its allegations of electoral irregularities
• Whether the legal points in limine raised by the respondents (non-joinder, lack of proper service, lack of jurisdiction, and non-compliance with timeframes) were valid
• Whether the alleged irregularities were material to the determination of the final result of the elections

The application was dismissed with no order as to costs.

The binding legal principles established by this judgment are: 1. Section 55 of the Electoral Act 73 of 1998 prescribes a mandatory procedural framework for challenging election results. Any objection material to the determination of the final result concerning voting or counting of votes must first be lodged with the Electoral Commission within the prescribed timeframes (not later than 21:00 on the second day after voting day, unless condoned). The Commission must decide the objection, and only thereafter may an aggrieved party appeal to the Electoral Court against the Commission's decision. 2. The Electoral Court's jurisdiction to review election results is limited to deciding appeals from Commission decisions on section 55 objections. The Court has no jurisdiction to directly review or set aside a declaration of election results without the section 55 objection procedure having been exhausted first. Relief seeking to set aside election results without following the section 55 procedure is incompetent at law. 3. To succeed in challenging election results, a party must prove with credible evidence that serious irregularities occurred and that such irregularities are 'material to the determination of the final result of the election' as contemplated by sections 55 and 56 of the Electoral Act. Mere allegations, suspicions, unsubstantiated assertions, and hearsay evidence are insufficient to discharge this burden. 4. The Electoral Court does not have jurisdiction to declare provisions of an Act of Parliament unconstitutional. Such constitutional challenges fall within the jurisdiction of the Constitutional Court or High Court. 5. In motion proceedings in the Electoral Court, the ordinary principles applicable to opposed applications apply, including the Plascon-Evans principle regarding disputes of fact on affidavits. Where the respondent's version is not far-fetched or clearly untenable, the Court cannot reject it merely on the papers.

The Court made several non-binding observations: 1. The general rule in the Electoral Court is that an unsuccessful party ought not to be ordered to pay costs, but this is not an inflexible rule and can be departed from where there are strong reasons such as where litigation is frivolous or vexatious. 2. The Court noted, without deciding definitively, that the deponent's statement that he 'need not burden the Court with voluminous papers' to evidence claims was 'patently wrong' and that claims must be proved with evidence. 3. The Court observed that the Commission's provision of both Voter Management Devices (VMDs) and analogue (hard copy) voters' rolls to all voting stations was a prudent safeguard ensuring that technical problems with VMDs would not affect the validation of eligible voters and the voting process. 4. The Court noted that section 24A of the Electoral Act (requiring voters to vote in the voting district where registered) was inserted by section 7 of Act 34 of 2003 and amended by section 9 of Act 4 of 2021, though the Court did not need to consider its constitutional validity given the lack of jurisdiction to decide that issue. 5. The Court commented that the mere fact that there were complaints about aspects of the electoral process does not prove that they were well-founded or that the elections were compromised - investigation and proper adjudication of such complaints through the prescribed procedures is necessary.

This case is significant in South African electoral jurisprudence for several reasons: 1. It reaffirms and clarifies the procedural requirements under section 55 of the Electoral Act 73 of 1998 for challenging election results. Parties must first lodge objections with the Electoral Commission within prescribed timeframes, and only after the Commission decides can an aggrieved party appeal to the Electoral Court. Direct applications to the Electoral Court bypassing this procedure are incompetent. 2. It establishes the evidentiary standard required for challenging election results - mere allegations, suspicions, and hearsay are insufficient. Parties challenging elections must provide credible, specific evidence of irregularities that are 'material to the determination of the final result of the election'. 3. It clarifies the Electoral Court's limited jurisdiction: (a) the Court can only decide appeals from Commission decisions on section 55 objections, not directly review election result declarations; and (b) the Court lacks jurisdiction to declare Acts of Parliament unconstitutional - such matters must be brought before the Constitutional Court or High Court. 4. It reinforces the principle that the mere existence of complaints about electoral processes does not prove they were well-founded or that elections were compromised. The Commission's investigation and response to complaints is important. 5. It demonstrates the importance of proper joinder in electoral matters, particularly where relief affects multiple organs of state and the legislature. 6. It confirms the general costs principle in the Electoral Court that unsuccessful parties should not ordinarily be ordered to pay costs unless the litigation is frivolous or vexatious. This judgment serves as an important precedent for future electoral challenges, establishing clear procedural and evidentiary requirements that must be met before the Electoral Court will interfere with declared election results.