Defenders of the People and Another v Electoral Commission of South Africa and Another

The first applicant, Defenders of the People (DoP), a registered unrepresented political party, submitted on 8 March 2024 its list of candidates and supporters' signatures to the Electoral Commission to contest the upcoming national and provincial elections scheduled for 29 May 2024. DoP submitted national lists, regional lists for Limpopo, Mpumalanga, KwaZulu-Natal and Gauteng provinces, and a provincial legislature list for Limpopo Province. On 27 March 2024, DoP became aware through social media that the Commission had disqualified and removed it from contesting the 2024 elections. DoP objected to its removal. On 28 March 2024, the Commission rejected the objection, initially stating that DoP had not submitted its list timeously (which was later conceded to be incorrect), but maintaining that DoP failed to comply with section 27 requirements regarding voter signatures. The Commission's records showed that DoP's supporter signatures fell short: Gauteng (80.86%), KwaZulu-Natal (86.09%), Mpumalanga (94.18%), and Limpopo province (3.10%), all below the required 100% quota under section 27(2)(cB) of the Electoral Act.

• Whether the Electoral Commission's decision to disqualify DoP from contesting the national and provincial elections was lawful and rational
• Whether DoP complied with the requirements of section 27(2)(cB) of the Electoral Act regarding the submission of the required number of voter signatures by the deadline set in the election timetable
• Whether the Commission's rejection of DoP's objection was lawful
• Whether DoP's objection fell within the purview of section 30 of the Electoral Act dealing with objection to nomination of candidates

The application was dismissed. Each party was ordered to pay its own costs.

A political party must comply strictly with the requirements of section 27(2)(cB) of the Electoral Act and the deadlines set in the election timetable for submission of candidate lists and the required quota of voter signatures. Election timetables and deadlines are essential for free and fair elections, and electoral authorities cannot grant ad hoc condonations or indulgences for non-compliance, as this would create perceptions of favoritism and compromise neutrality. Where a party fails to submit the required number of supporter signatures by the deadline, its exclusion from contesting elections follows by operation of law, not from the exercise of discretion by the Electoral Commission. Non-compliance with statutory requirements and time limits that is attributable to the political party itself, rather than to the Electoral Commission, cannot render the Commission's decision to exclude the party unlawful or irrational.

The Court noted that the Commission initially made an error in stating that DoP had been excluded because it failed to submit its candidates list timeously, when in fact DoP had submitted the list but failed to meet the quota requirements for supporter signatures. The Commission conceded this error but maintained that the exclusion was lawful on the correct grounds. The Court observed that DoP's complaint should not have been treated as an objection under section 30 of the Electoral Act, which deals with objections to nomination of candidates, as DoP's objection concerned its exclusion from the list of parties contesting elections, not a nomination issue. The Court also commented on the general rule regarding costs in electoral matters, noting that costs are not imposed on a losing party unless their conduct has been vexatious, frivolous or abusive of court processes, and found no reason to depart from this general rule in this case.

This case reinforces the strict adherence to electoral timetables and procedural requirements in South African electoral law. It confirms that the Electoral Commission cannot grant ad hoc condonations or indulgences for non-compliance with statutory deadlines and requirements, as this would undermine the neutrality of electoral authorities and the fairness of elections. The judgment emphasizes that the right to political participation under section 19 of the Constitution, while fundamental, is subject to compliance with the procedural requirements set out in the Electoral Act. It also clarifies the application of section 27(2)(cB) of the Electoral Act regarding the quota of supporter signatures required for unrepresented political parties to contest elections. The case demonstrates the Court's commitment to upholding electoral integrity through strict compliance with statutory requirements, while maintaining the principle that costs in electoral matters are generally not awarded unless the losing party's conduct has been vexatious, frivolous or abusive.