Electoral Commission of South Africa v Speaker of the National Assembly and Others

Following the Constitutional Court's decision in Electoral Commission v Mhlope 2016 (5) SA 1 (CC), which declared the Electoral Commission's failure to record all available voters' addresses on the national common voters' roll inconsistent with the rule of law obligations under section 1(c) of the Constitution, the Commission was required to obtain and record all reasonably available addresses as at 17 December 2003 by 30 June 2018. The Commission made substantial progress, increasing registered voters with complete addresses from 34% to approximately 82%, but approximately 18-21% of addresses remained incomplete, generic, or missing. With the 2019 national and provincial elections approaching, the Commission urgently applied for an extension of the suspension of the declaration of invalidity until 30 November 2019. The Commission argued it needed more time to collect additional addresses, particularly through voter registration weekends and the elections themselves, and to allow Parliament to consider legislative amendments. Several political parties (the Democratic Alliance, Inkatha Freedom Party) and the original Mhlope applicants opposed the extension, arguing the Commission had not done enough and that granting the extension would immunize the 2019 elections from address-based challenges.

• Whether it was just and equitable under section 172(1)(b) of the Constitution to grant an extension of the suspension of the declaration of invalidity beyond 30 June 2018
• What factors should guide the exercise of the Court's power to extend a suspension of invalidity
• Whether the Commission had complied with the Mhlope order to obtain all reasonably available addresses
• What constitutes 'reasonably available' addresses in the context of section 16(3) of the Electoral Act
• The balance between ensuring electoral integrity through address verification and avoiding disenfranchisement of vulnerable voters
• Whether conditions should be imposed on any extension granted

The majority granted the extension of the suspension of invalidity until 30 November 2019, subject to the following conditions: (1) The Commission must by 30 November 2019 have obtained and recorded all reasonably available post-December 2003 addresses; (2) The Commission must furnish reports on 31 January 2019, 31 March 2019, 31 May 2019, 31 July 2019 and 30 September 2019 detailing progress; (3) The Commission must set out how it will: (i) clearly indicate on the voters' roll which voters have incomplete, inadequate or no addresses; (ii) require such voters to supply addresses before voting on election day; and (iii) enable political parties to access and scrutinize those addresses; (4) Any party or person may approach the Court on new or supplemented papers to set the matter down for further argument on good cause; (5) The Commission was ordered to pay the costs of the Democratic Alliance, Inkatha Freedom Party, and Mr Mhlope and Ms Xaba, including costs of two counsel.

The binding legal principles established are: (1) Extensions of suspensions of declarations of invalidity must be granted with great caution and not as a matter of course or at the last minute, but may be granted where just and equitable; (2) In determining whether to grant an extension, courts must consider: the sufficiency of explanation for non-compliance, potential prejudice if extension is or is not granted, prospects of curing constitutional defects within the new deadline, need for finality, and need to promote the constitutional project; (3) 'Reasonably available' addresses in the electoral context means addresses that can objectively be obtained through reasonable efforts, not addresses that exist but are impossible or extremely difficult to obtain (such as those of voters in informal settlements without formal addresses); (4) The obligation to record 'available' addresses is limited—it does not require the Electoral Commission to achieve the impossible or near-impossible task of recording addresses for all voters, particularly those in rural villages and informal settlements without recordable addresses; (5) Extensions may be granted subject to stringent conditions to balance competing interests, including ongoing reporting requirements and mechanisms to allow parties to return to court; (6) The importance of addresses in ensuring electoral integrity must be balanced against the risk of disenfranchising vulnerable voters who lack formal addresses.

The Court made several important non-binding observations: (1) The majority noted that the Commission's fear of electoral challenges based on missing addresses was to some extent speculative, and that granting an extension purely to forestall such challenges could itself have legitimacy-impairing effects; (2) The Court observed that voter registration efforts are most effective when conducted in the run-up to elections and on voting days themselves, when voters are incentivized to participate; (3) The majority emphasized that while addresses help prevent fraud and enable canvassing, the concept of free and fair elections embodies much more than address availability; (4) The Court cautioned against overly magnifying the role addresses play in the electoral process; (5) The minority observed that imposing conditions on voting (such as requiring address provision before voting) risks disenfranchising voters who are legitimately on the roll but lack recordable addresses; (6) The minority warned that courts should be cautious about dictating how the Electoral Commission should run elections, as this could undermine its constitutional independence; (7) Both judgments recognized that millions of South Africans in villages and informal settlements do not have recordable addresses due to historical land-use discrimination and informal living conditions, and that this reality must inform interpretation of electoral obligations; (8) The Court noted that previous elections have been correctly declared free and fair despite millions of missing addresses.

This case is significant for several reasons: (1) It demonstrates the Constitutional Court's flexible approach to crafting just and equitable remedies under section 172(1)(b), particularly through the innovative use of conditional extensions of declarations of invalidity; (2) It establishes important jurisprudence on the meaning of 'reasonably available' addresses in the electoral context, balancing electoral integrity with the practical realities of informal settlements and rural living conditions in South Africa; (3) It addresses the tension between ensuring free and fair elections through robust voter rolls and avoiding disenfranchisement of vulnerable populations who lack formal addresses; (4) It illustrates the Court's supervisory role over state institutions through ongoing reporting requirements and the ability of parties to return to Court; (5) The split decision reflects different approaches to compliance assessment—whether focus should be on what was reasonably achievable within the time given versus what might be achievable with more time; (6) It shows the Court grappling with the limits of its remedial powers and the need to respect institutional boundaries while ensuring constitutional compliance; (7) The minority judgment provides important cautions about judicial overreach into the electoral process and the independence of the Electoral Commission.