Arise South Africa v Electoral Commission of South Africa; Independent South African National Civic Organisation v Electoral Commission of South Africa

Two unrepresented registered political parties, Arise South Africa (ASA) and Independent South African National Civic Organisation (ISANCO), sought to contest the 2024 national and provincial elections scheduled for 29 May 2024. The Electoral Commission disqualified both parties from contesting certain elections on the grounds of non-compliance with the Electoral Act. ASA allegedly failed to submit regional lists of candidates required by section 27(1) read with item 3(2) of Schedule 1A, despite submitting a national list. ISANCO allegedly failed to submit sufficient verified voter supporter signatures to meet the quota requirements prescribed by section 27(2)(cB) for the Mpumalanga regional election and Free State and Mpumalanga provincial elections, though they claimed to have submitted details and signatures of approximately 37,745 supporters. The Commission's Online Candidate Nomination System (OCNS) verified only 18,387 supporters, well short of the required quotas. Both parties challenged their disqualification before the Electoral Court.

• Whether ASA complied with section 27(1) read with item 3(2) of Schedule 1A by submitting regional lists of candidates by the deadline
• Whether ISANCO submitted sufficient verified voter supporter signatures to meet quota requirements under section 27(2)(cB)
• Whether factual disputes in motion proceedings should be resolved according to the Plascon Evans principle
• Whether section 28 of the Electoral Act gives the Chief Electoral Officer power to condone late submission or rectify failures to submit candidate lists and supporter lists
• Whether the Electoral Commission had a duty to notify parties of non-compliance and afford them an opportunity to rectify defects
• Whether the Commission's administrative error in initially including ASA on the provisional compensatory ballot list created a binding decision under the Oudekraal principle

Both applications dismissed with no order as to costs. The Electoral Commission's application for condonation for late filing of its answering affidavit in the ASA matter was granted.

Unrepresented registered political parties wishing to contest elections for the National Assembly must comply with section 27(1) read with item 3(2) of Schedule 1A of the Electoral Act by submitting both a national list of candidates and at least one regional list of candidates by the deadline in the electoral timetable. Parties must also meet quota requirements for verified voter supporter signatures as prescribed by section 27(2)(cB) and the regulations. Non-compliance with these peremptory requirements results in disqualification by operation of law (ex lege), not by administrative decision. Section 28 of the Electoral Act does not vest the Electoral Commission with discretion to condone late submission of candidate lists or supporter lists, but only allows rectification of limited failures in respect of sections 27(2)(a), (b), (cA), (d) or 27(4) for parties that have already submitted lists in compliance with sections 27(1) and 27(2)(cB). The Electoral Commission has no inherent power to condone failure to comply with peremptory requirements absent express statutory discretion. In motion proceedings involving factual disputes, the Plascon Evans principle applies: where the respondent's version is not so far-fetched or untenable that it can be rejected out of hand, and is more probable than the applicant's unsubstantiated assertions, it should be accepted.

The Court observed that allowing parties to contest only compensatory seats without submitting regional lists would render meaningless the requirement in section 27(2)(cB)(i) for voter signatures demonstrating support, which serves the legitimate purpose of preventing frivolous participation in elections. The Court noted that the absence of discretion to condone non-compliance with deadlines is by design, as deadlines ensure election fairness and proper management, and a power to relax deadlines would place the Commission in an impossible position and risk accusations of favouritism, undermining its role as neutral facilitator. The Court commented that procedural defects in ISANCO's application (incorrect legal basis under section 30(4) and improperly commissioned founding affidavit) would have been sufficient grounds for dismissal, though these were not fully addressed given the substantive findings of non-compliance. Regarding costs, the Court affirmed the general principle from Biowatch that unsuccessful parties in constitutional/public interest litigation should not ordinarily be ordered to pay costs absent strong reasons such as frivolous or vexatious litigation.

This case clarifies important aspects of South African electoral law governing party participation in elections. It establishes that compliance with candidate list and voter supporter signature requirements under the Electoral Act is peremptory, with non-compliance resulting in disqualification by operation of law. The judgment confirms that section 28 provides only limited rectification powers for technical defects in submitted lists, not condonation for failure to submit required lists or meet deadlines. The case reinforces that electoral deadlines serve critical functions in ensuring fairness and proper election management, and that the Electoral Commission lacks inherent power to condone non-compliance with peremptory requirements. The judgment also demonstrates the application of the Plascon Evans principle in electoral disputes involving factual controversies, emphasizing the need for applicants to provide substantive evidence beyond bare assertions. Finally, the case applies the Biowatch principle on costs in public interest litigation involving constitutional rights, ordering each party to bear its own costs.