Democratic Alliance and Another v The African National Congress and Others

The ANC nominated Thabang Nathaniel Morufane as its candidate for a by-election in Ward 28 of the Steve Tshwete Local Municipality. The closing date for submission of nominations was 2 February 2015 at 17h00. The ANC's representative, Lindiwe Mahlangu, arrived at the Electoral Commission's municipal office at 16h30 to submit the nomination form. The Commission identified two deficiencies: the nomination was not accompanied by a bank-guaranteed cheque as required by section 17(2)(d) of the Local Government: Municipal Electoral Act, and the ANC's letter of authority was not signed by its authorised representative. The authorisation issue was resolved by 16h45 via fax. Mahlangu left the office to fetch the required cheque and returned at 16h58 (on her version) or 17h05 (on the DA and Commission's version) to find the door locked. She knocked on the door to no avail and eventually pushed the cheque under the door at 17h15. The Commission refused to register the ANC's candidate on the basis that all necessary documents had not been submitted by the 17h00 cut-off time. The ANC brought an urgent application to the Electoral Court seeking to review and set aside the Commission's decision.

• Whether the Electoral Commission's refusal to register the ANC's nominated candidate on the basis that the required cheque was submitted a few minutes after the 17h00 cut-off time was reasonable and lawful
• Whether the principle of substantial compliance applies to the submission of nomination documents under the Local Government: Municipal Electoral Act
• Whether a strict and inflexible application of time-tables in electoral processes is consistent with constitutional values that encourage participation in democratic elections
• How section 2 of the Local Government: Municipal Electoral Act, which requires interpretation in a manner that gives effect to constitutional declarations, guarantees and responsibilities, should be applied

The application for rescission of the court's order of 8 February 2015 was dismissed. The order of 8 February 2015 was confirmed, which had the effect of: (a) reviewing and setting aside the Electoral Commission's decision not to register Morufane as the ANC's nominated candidate; (b) directing the Commission to accept the ANC's nomination of Morufane as its nominated candidate in the by-election; and (c) directing the Commission to include Morufane in the list of candidates contesting Ward 28 as provided in section 18(1)(a) of the Act. There was no order as to costs.

The binding legal principles established by this judgment are: (1) The interpretation and application of the Local Government: Municipal Electoral Act must be guided by section 2 of the Act, which requires giving effect to constitutional declarations, guarantees and responsibilities contained in the Constitution; (2) Electoral authorities must adopt a purposive interpretation of electoral legislation that encourages participation in democratic elections rather than exclusion from them; (3) Where there has been substantial compliance with the requirements for nomination of candidates, and the only deficiency relates to a minimal time difference in the submission of documents (a matter of minutes), a flexible and reasonable approach should be applied rather than strict and inflexible adherence to deadlines; (4) Each case must be considered on its own merits, with reasonableness applying in the assessment of whether to adopt a flexible approach; (5) A minimal difference in time coupled with a party's conduct which clearly demonstrates a serious intention to contest an election must favour flexibility in the application of electoral requirements; (6) Where accepting late documents would not cause any harm, disadvantage or prejudice, and where no subsequent steps in the electoral process have yet commenced, it is unreasonable for the Electoral Commission to strictly and inflexibly apply time-tables; (7) The constitutional values of democratic participation, accountability, responsiveness and openness must inform the exercise of discretion by electoral authorities.

The court made several non-binding observations: (1) It is not practical to synchronize all clocks and watches or any time-keeping mechanism to reflect the same time (to the minute) for everyone, and "time" will therefore generally differ from person to person and from place to place; (2) It would be unreasonable to expect perfect synchronization of time and to adhere to one particular time measurement on the assumption that it is the correct time, particularly when the difference is a matter of minutes or even seconds; (3) Where a party relies on a cut-off time with such drastic consequences as to exclude a candidate from an election, its mere say-so of the time when the difference is so minuscule must be considered carefully; (4) In this case, the hearsay evidence regarding the computer time used to determine the cut-off was not corroborated by the Commission, and there was no effective determination of the cut-off time. These observations provide practical guidance for future cases involving disputes about compliance with electoral time-tables.

This judgment is significant in South African electoral law as it establishes that constitutional values favouring democratic participation take precedence over rigid adherence to administrative time-tables in electoral processes. The case reinforces the principle of substantial compliance in electoral law and confirms that the Electoral Commission must exercise its functions reasonably and in a manner consistent with constitutional imperatives. The judgment emphasizes that section 2 of the Local Government: Municipal Electoral Act requires a purposive interpretation that gives effect to constitutional declarations, guarantees and responsibilities, particularly the founding values in section 1 of the Constitution including universal adult suffrage, regular elections and a multi-party system of democratic government. The case provides important guidance on how electoral authorities should balance administrative efficiency with the constitutional imperative to facilitate rather than frustrate participation in democratic elections. It confirms that minimal time differences, particularly when accompanied by conduct demonstrating a serious intention to contest an election, should favour flexibility in the application of electoral requirements.