Afrikaans Kleurling Bewustheids Party (AKBP) obo Ubuntu & Emthanjeni Local Community v The Electoral Commission of South Africa and Others

The Afrikaans Kleurling Bewustheids Party (AKBP), a political party registered on 14 February 2020, brought an application purporting to act on behalf of the Ubuntu and Emthanjeni local communities. The applicant sought orders to rescind or dissolve the municipal councils inaugurated after the 2021 general local government elections in the Ubuntu and Emthanjeni municipalities in the Northern Cape. The applicant alleged misconduct and contraventions of the Electoral Code of Conduct by various respondents, including the IEC, presiding officers, and political parties (ANC, DA, EFF, and NIC). Specifically, the applicant alleged that the ANC unlawfully registered minors and disabled persons online as special votes, and that other parties unlawfully pitched tents and tables near voting stations to unduly influence votes. Mr Benjamin Andries de Bruin, the applicant's President, lodged formal complaints with presiding officers under section 51(3) of the MEA at four voting stations. The IEC responded that the applicant failed to comply with sections 14 and 17 of the MEA by not submitting party lists or nominating candidates, and that the presiding officers had properly investigated and decided the objections, finding that the complained-of conduct occurred outside voting station boundaries.

• Whether the applicant had legal standing to bring the application given it did not contest the election and purported to act on behalf of a community that was not a legal person
• Whether the relief sought was competent, coherent and within the jurisdiction of the Electoral Court
• Whether the Electoral Court has power to dissolve a municipal council
• Whether there was non-joinder of necessary parties with substantial interest in the proceedings
• Whether the applicant complied with section 65(1) of the MEA requiring objections to be material to the election result
• Whether the objections lodged under section 51(3) of the MEA were properly dealt with by the presiding officers

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

The binding legal principles established are: (1) A political party that did not contest an election by failing to comply with sections 14 and 17 of the MEA (submitting party lists and nominating candidates) lacks standing to seek relief related to that election. (2) A party purporting to act on behalf of a community that is not a legal person must either obtain enabling orders or rely on section 38 of the Constitution to establish standing. (3) The Electoral Court, exercising only powers expressly granted by the Electoral Commission Act 51 of 1996, has no jurisdiction to dissolve a municipal council - such power is vested exclusively in provincial executives under section 139 of the Constitution. (4) Parties to electoral objections under section 51(3) of the MEA cannot claim relief in subsequent proceedings if they were not parties to the original objection. (5) Failure to join municipal councils and affected political parties in their proper legal capacities constitutes fatal non-joinder in applications seeking to set aside election results or dissolve councils. (6) Electoral objections must comply with section 65(1) of the MEA by being material to the result of the election.

The Court noted that it decided the matter on the papers without an oral hearing, with unanimous agreement of all members. The Court also observed that it was unclear what capacity the applicant brought the application in, and that the relief sought in the Notice of Motion was completely different from that in the founding affidavit. The Court referenced the Plascon-Evans rule regarding factual disputes in motion proceedings, noting that where a respondent's averments are not disputed, their version must prevail. The judgment also mentioned that municipal councillors are deemed to assume office on the date of declaration of results under section 22(5) of the Municipal Structures Act, and that municipal council terms are five years under section 24(1) of that Act.

This case clarifies important principles regarding standing in electoral disputes, the limited jurisdiction of the Electoral Court, and procedural requirements for challenging electoral processes. It confirms that the Electoral Court lacks power to dissolve municipal councils - such power rests exclusively with provincial executives under section 139 of the Constitution. The judgment reinforces the importance of proper legal standing, particularly where applicants purport to act on behalf of communities or groups, and the necessity of complying with statutory requirements for contesting elections before seeking relief. It also emphasizes the importance of proper joinder of affected parties and coherent formulation of relief sought. The case demonstrates the strict procedural requirements governing electoral objections under the MEA, including the materiality requirement in section 65(1).