Democratic Alliance v Ramaphosa and Others

On 26 May 2024, three days before the 2024 national and provincial elections, President Cyril Ramaphosa delivered a televised address to the nation. The Democratic Alliance (DA), a registered political party, alleged that the President abused his position to influence the election outcome by parading the achievements of the ANC-led government during this address. The DA contended that the President's speech violated Item 9(2)(e) of the Electoral Code of Conduct (prohibiting abuse of a position of power to influence elections) and section 87(1)(g) of the Electoral Act 73 of 1998 (prohibiting use of public funds for political campaigns). The DA sought a declaration that these provisions were violated, a fine of R200,000 against the President, and initially a 1% reduction in votes cast for the ANC (though this relief was later abandoned). The President was cited both in his personal capacity as ANC leader and in his official capacity as President. The ANC and President opposed the application, arguing that the address was delivered in his capacity as Head of State to promote national unity and inform citizens about election readiness, not to campaign politically. The respondents also raised a jurisdictional point in limine, arguing the Electoral Court lacked jurisdiction to hear the matter as a court of first instance.

• Whether the Electoral Court has jurisdiction to hear the matter as a court of first instance without prior leave being sought under Rule 2(3) of the Electoral Disputes Rules
• Whether Item 9(2)(e) of the Electoral Code of Conduct applies to the President's exercise of his constitutional powers and functions
• Whether section 87(1)(g) of the Electoral Act was contravened by the Presidential address
• The proper interpretation of 'abuse of position of power, privilege or influence' in Item 9(2)(e) of the Electoral Code
• The proper interpretation of 'use of public funds for the purpose of a political campaign' in section 87(1)(g) of the Electoral Act
• Whether the President's address constituted electioneering or political campaigning
• The test to be applied in determining whether prohibited conduct occurred
• How to balance the President's constitutional obligations under sections 83 and 84 of the Constitution with electoral law prohibitions

The application was dismissed with no order as to costs.

The binding legal principles established by this judgment are: (1) The Electoral Court has jurisdiction to hear matters as a court of first instance, not merely as a court of review and appeal; section 96(1) of the Electoral Act grants 'final jurisdiction' over electoral disputes which encompasses first instance jurisdiction. (2) Item 9(2)(e) of the Electoral Code and section 87(1)(g) of the Electoral Act must be interpreted restrictively given their penal nature and potential impact on free speech. (3) These electoral law prohibitions must be interpreted in a manner that promotes constitutional rights (sections 16, 19) and enables, rather than unduly inhibits, the fulfillment of constitutional obligations by elected officials, particularly the President's duties under sections 83 and 84 of the Constitution. (4) The prohibitions do not create a blanket ban on Presidential addresses during election periods that touch on politically contested issues; such an interpretation would unjustifiably deprive citizens of information and prevent the President from performing constitutional functions. (5) The objective test for determining whether conduct violates these provisions is that of the reasonable observer who subscribes to constitutional values and assigns ordinary meaning to words used. (6) To constitute 'abuse of position of power' or 'use of public funds for a political campaign,' the speech or conduct must, when viewed holistically and objectively, actually amount to electioneering or political campaigning designed to influence the election outcome, not merely the legitimate exercise of constitutional powers that happens to occur during an election period. (7) Relevant factors in the assessment include: whether specific parties are mentioned, whether party manifestos are promoted, the overall theme and purpose of the address, the language used (individual vs. collective), whether credit is given broadly across the political spectrum, consistency with previous governmental communication practices, and whether there is evidence of actual or intended influence on voters.

The Court made several non-binding observations. It noted that the President's address was consistent with established practices of governmental communication that became common during the COVID-19 pandemic, suggesting an evolving practice of direct presidential communication on matters of national importance. The Court observed that the President's address focused on encouraging participation in the democratic process and highlighted both national progress and challenges, which the Court viewed as supporting rather than undermining free and fair elections. The Court also commented that there was no evidence that the Presidential address had any tangible impact on the election results, though this was not strictly necessary for its decision. Additionally, the Court noted approvingly that the President provided a detailed bona fide explanation for why he made the address, suggesting that genuine belief in serving the public good is relevant to the assessment. The Court's discussion of costs reinforced the principle that the Electoral Court generally does not order costs against unsuccessful parties unless the litigation is frivolous or vexatious, reflecting the public interest nature of electoral disputes and the importance of not deterring legitimate challenges to electoral conduct. Finally, the Court's observation that 'positions of public power' falling within Item 9(2)(e) cannot be interpreted so broadly as to paralyze presidential functioning during elections suggests a pragmatic approach to electoral regulation that recognizes the ongoing need for governance even during campaign periods.

This case is significant in South African electoral law for several reasons. First, it clarifies that the Electoral Court has jurisdiction to sit as a court of first instance and is not limited to appellate and review functions, reinforcing the intention to create a specialist electoral court with comprehensive jurisdiction over electoral matters. Second, it provides important guidance on the interpretation of electoral law prohibitions on abuse of power and use of public funds, establishing that these must be interpreted restrictively given their penal nature and potential to muzzle free speech. Third, it balances electoral integrity concerns against the constitutional obligations of elected officials, particularly the President, holding that elected officials are not prevented from performing their constitutional functions during election periods simply because they touch on politically contested issues. Fourth, it establishes the objective test of the 'reasonable observer' who subscribes to constitutional values as the appropriate standard for determining whether conduct violates electoral law prohibitions. Fifth, it distinguishes between legitimate governmental communication aimed at promoting national unity and democratic participation versus unlawful electioneering or political campaigning. The judgment recognizes the complexity of governing during election periods and provides a framework that protects electoral integrity while not unduly constraining the ability of public officials to fulfill their constitutional mandates. It also reinforces that penal provisions in electoral legislation must be interpreted strictly and applied to actual conduct that violates the spirit and purpose of free and fair elections, not merely to any speech by officials that touches on political issues.