Democratic Alliance in re Electoral Commission of South Africa v Minister of Cooperative Governance and Traditional Affairs and Others

Following the Constitutional Court's order on 3 September 2021 in the main case (CCT 245/21) which set aside the Minister's proclamation of 3 August 2021 calling local government elections for 27 October 2021, the Electoral Commission determined on 6 September 2021 that it was practically possible to hold a voter registration weekend on 18-19 September 2021. The Commission also announced its decision to extend the candidate nomination cut-off date from 23 August 2021 to 21 September 2021. This extension would allow the ANC, which had failed to submit party lists and ward candidate nominations in respect of 20 municipalities and 598 wards by the original deadline, to remedy its non-compliance. The DA launched an urgent application for direct access challenging the constitutionality and lawfulness of the Commission's decision to extend the candidate cut-off date. The DA was supported by the IFP, EFF, ATM and SAIRR, while the Commission, Minister and ANC opposed the application.

• Whether the Commission's decision to extend the candidate cut-off date fell within the scope of 'reasonably necessary' amendments contemplated in paragraph 5(c)(iii) of the Court's order of 3 September 2021
• Whether the Court's order in the main case precluded the Commission from exercising its statutory power under section 11(2) of the Municipal Electoral Act to amend the election timetable
• Whether the Commission's decision to extend the candidate cut-off date was constitutionally and lawfully justified under section 11(2)(a) of the Municipal Electoral Act as necessary for free and fair elections
• Whether the extension decision was tainted by bias or improper motives in favour of the ANC

1. The third intervening party's (DA's) prayer for direct access on an urgent basis is granted. 2. Save as aforesaid, the third intervening party's application is dismissed. 3. Each party shall bear their own costs.

A court order setting aside an electoral proclamation and directing specific amendments to an election timetable must be interpreted according to its specific remedial purpose and does not implicitly preclude the Electoral Commission from exercising its independent statutory powers under section 11(2) of the Municipal Electoral Act 27 of 2000 to make further amendments to the timetable if it considers them necessary for free and fair elections. The Commission's power under section 11(2) to amend an election timetable, including extending deadlines that have already passed, is not constrained by section 11(3) of the Act. When the Commission exercises this power, its decision is subject to judicial review, but a court will not lightly interfere with the Commission's assessment of what is necessary for free and fair elections, and allegations of bias or improper motives must be established on the papers in accordance with the Plascon-Evans rule before the Commission's decision can be set aside on that basis.

The Court made several non-binding observations: (1) It expressed sympathy with Freedom Under Law's criticism of political parties engaging in 'opportunism' and 'lawfare', though it ultimately found the matter required urgent judicial attention. (2) The Court noted that its judgment would not preclude future challenges after the election to the freeness and fairness of elections in particular municipalities based on alleged Commission bias in extending the candidate cut-off date. (3) The Court commented that while section 11(2)(b) of the MEA was pleaded as a basis for the amendment (voting day being postponed), this provision did not apply because the proclamation setting the election date of 27 October 2021 had been set aside rather than the date being postponed; when the Minister issued a new proclamation for 1 November 2021, she would be determining rather than postponing an election date. (4) The Court observed that adherence to deadlines in election timetables remains important, citing Liberal Party v Electoral Commission and Electoral Commission v Inkatha Freedom Party, but noted this principle does not prevent lawful amendments to timetables under section 11(2). (5) The Court acknowledged that when the Commission was compelled by the Court's order to hold elections by 1 November 2021, it became 'solution-oriented' having previously focused on problems when hoping for postponement to February 2022.

This case clarifies the scope and interaction between court-ordered electoral remedies and the Electoral Commission's independent statutory powers to amend election timetables. It confirms that court orders remedying electoral defects must be interpreted in light of their specific remedial purpose (here, accommodating new voters rather than new candidates), but such orders do not impliedly divest the Commission of its statutory powers under the Municipal Electoral Act to make further amendments if necessary for free and fair elections. The judgment affirms the Commission's wide discretion under section 11(2)(a) to determine what is necessary for free and fair elections, subject to judicial review for ulterior motives or bias. It demonstrates the Court's reluctance to interfere with the Commission's technical and logistical electoral management decisions during time-sensitive electoral processes, while preserving the possibility of post-election challenges. The case also illustrates the principle that dates in election timetables that have already passed can still be amended by the Commission when exercising its section 11(2) powers. Finally, it provides guidance on balancing competing rights and interests in the electoral context - the rights of newly registered voters and candidates under sections 19 and 158 of the Constitution against principles of deadline adherence and avoiding prejudice to political parties that complied with original deadlines.