Electoral Commission of South Africa and Another v Speaker of the uMhlathuze Local Council and Others

Following the Local Government Elections on 1 November 2021, 67 seats were awarded in the uMhlathuze Local Municipality. A meeting was convened to elect representatives to the King Cetshwayo District Council in terms of Schedule 2 to the Local Government: Municipal Structures Act 117 of 1998 (the Structures Act). The uMhlathuze Local Council was allocated 10 seats on the District Council. During the meeting, 27 ANC councillors walked out before voting, and one NFP councillor abstained. Three political parties (IFP, DA, and EFF) submitted candidate lists and participated in the voting. After applying the formula in item 19 of Schedule 2, the quota for a seat was 7 votes. In the first round of allocation under item 20(1), 4 seats were allocated. In the second round under item 20(2)(a), using surpluses, 3 additional seats were allocated, totalling 7 seats. The Commission's representatives then conducted a third round of allocation, awarding the remaining 3 seats to the three parties based on highest surplus, resulting in the election of three affected councillors (the eighth, ninth, and tenth respondents). The Commission discovered the error in May 2022 during a routine audit and brought a review application in August 2022 to set aside the election of these three councillors on the ground that their election was unlawful due to misapplication of item 20 of Schedule 2 to the Structures Act.

• Whether the Electoral Commission's unreasonable delay in bringing the review application should be overlooked
• Whether the proper interpretation of item 20 of Schedule 2 to the Structures Act allows for a third round of seat allocation or whether remaining seats should be left unallocated after the second round
• Whether section 157(6) of the Constitution requires proportional representation of parties from the local council to the district council
• What constitutes a just and equitable remedy if the election was found to be unlawful
• Whether there was non-joinder of necessary parties (the municipalities, the Minister, and the MEC)

1. Declared that the election on 23 November 2021 of the eighth, ninth and tenth respondents as members of the King Cetshwayo District Council as representatives of the uMhlathuze Local Council was unlawful, unconstitutional and invalid. 2. The decision of the Electoral Commission to elect the eighth, ninth and tenth respondents was reviewed and set aside. 3. Declared that proceedings and decisions taken by the King Cetshwayo District Council are not invalid only by reason that the affected councillors were members at the time. 4. The eighth, ninth and tenth respondents were ordered to vacate office in the King Cetshwayo District Council within fourteen days from the date of the order. 5. Declared that the orders in paragraphs 1 and 2 shall not affect the legality of the payment of any salary or benefits to the affected respondents prior to the date of the order. 6. No order as to costs was made.

Item 20 of Schedule 2 to the Local Government: Municipal Structures Act 117 of 1998 permits only two rounds of seat allocation when local councils elect representatives to district councils: (1) the first round under item 20(1) allocating seats by dividing votes by the quota; and (2) the second round under item 20(2)(a) allocating remaining seats based on highest surpluses from the first round. Surpluses can logically only compete once, and any seats remaining after the second round of allocation must be left unallocated. This interpretation gives effect to section 157(6) of the Constitution, which requires that the system for appointing representatives from local councils to district councils must ensure fair representation reflecting the composition of the local council making the appointment. An electoral decision allocating seats through an impermissible third round based on the same surpluses used in the second round is unlawful, unconstitutional, and invalid. Where an unreasonable delay occurs in bringing a legality review of an electoral decision, the court may nevertheless overlook the delay and entertain the application where the matter raises important questions of statutory interpretation affecting the integrity of electoral processes and the interests of justice favour determination of the merits. In determining a just and equitable remedy under section 172(1)(b) of the Constitution for invalid electoral appointments, a court may declare the invalidity prospective only, protecting the validity of decisions taken and benefits paid during the period of the invalid appointment.

The Court made several obiter observations. It noted that the Structures Act specifically provides for seats to remain unfilled in certain circumstances (items 10 and 11 of Schedule 2), demonstrating that the legislation does not abhor vacancies and recognizes that seats should remain unfilled where the party that obtained the necessary votes cannot fill them. The Court compared item 20 to Schedule 1A of the Electoral Act 73 of 1998, observing that where the Legislature intended to permit three rounds of allocation with a different basis for the third round, it expressly provided for this. The Court observed that the absence of such express provision in item 20 supports the interpretation that only two rounds were intended. The Court commented that section 20(1) of the Electoral Commission Act and Rule 6 of the Electoral Court Rules place a premium on expeditious institution of reviews, reflecting that electoral matters are generally urgent and should be finalized expeditiously. The Court also noted that section 237 of the Constitution elevates expeditious and diligent compliance with constitutional duties to an obligation in itself. The Court observed that the New Nation Movement NPC case relied upon by the respondents was irrelevant to the issues before it, as that case concerned whether individuals could be elected to the National Assembly and Provincial Legislature only through political party membership, not the interpretation of item 20 of Schedule 2. The Court noted that if a party chooses not to participate in a local council's election of district representatives, it is deciding not to send its share of councillors to the district council, and there is no reason why its choice should provide a windfall of seats to its political opponents disproportionate to their support.

This case establishes important principles regarding the interpretation of electoral legislation governing the appointment of local council representatives to district councils in South African local government. It clarifies that item 20 of Schedule 2 to the Structures Act permits only two rounds of seat allocation and that remaining seats must be left unallocated if there are insufficient surpluses, rather than continuing to allocate seats in a manner that would distort proportional representation. The judgment reinforces the constitutional requirement in section 157(6) that the system for appointing representatives must ensure fair representation reflecting the composition of the originating council. The case also demonstrates the application of the undue delay rule in legality reviews and the circumstances in which courts will overlook unreasonable delay, particularly where important legal questions affecting the integrity of electoral processes are at stake. It illustrates the Electoral Court's willingness to craft just and equitable remedies that correct unlawful conduct while limiting retrospective prejudice to affected parties and decisions taken in reliance on invalid appointments. The judgment also provides guidance on joinder requirements in electoral matters involving municipal councils.