African Independent Congress v Electoral Commission of South Africa and Others

The African Independent Congress (AIC) was formed on 12 July 2012. Following internal disputes, two factions emerged - one headed by Mandlenkosi Phillip Galo and another led by the late Lulama Maxwell Ntshayisa. Both claimed to be lawful leaders of the party. This internal strife prevented the party from holding its elective conference to elect a new governing structure after the original leadership's term ended. The internal disputes led to litigation which ended on 9 May 2022. Due to the protracted infighting, on 31 May 2022, the Electoral Commission barred the AIC from nominating candidates for by-elections and replacing proportional representation councillors. The AIC's bank accounts with FNB, Matatiele, were also frozen. On 1 October 2022, the AIC resolved its internal disputes and elected an Interim National Executive Committee (INEC). An agreement was concluded between the two factions on 17 January 2024 confirming that internal disputes had been resolved and recognizing the new INEC leadership structure. On 17 January 2024, the AIC met with the Commission requesting recognition of its INEC structure, but the Commission advised it would only recognize the INEC if directed by a court order. The AIC had also not complied with section 12 of the Political Party Funding Act 6 of 2018 requiring submission of financial statements.

• Whether the Electoral Commission should be ordered to recognize the Interim National Executive Committee (INEC) of the AIC as the lawful leadership structure of the party
• Whether the Commission should be ordered to pay all finances due to the AIC from the date of its suspension to the date of reinstatement
• Whether the Court should order FNB to unfreeze the banking accounts belonging to the AIC
• Whether the application should be heard on an urgent basis despite non-compliance with court rules
• Whether costs should be awarded in an electoral matter

1. The applicant's failure to comply with the forms and service provided for in the Rules of Court was condoned, and the application was heard on an urgent basis. 2. The respondent was ordered to recognize the applicant's members whose names appear on annexure 'A' to the Notice of Motion as constituting its Interim National Executive Committee. 3. The applicant was ordered to comply with section 12 of the Political Party Funding Act 6 of 2018 by preparing its financial statements and submitting the same to the respondent within 30 days of the granting of the order. 4. The relief sought in prayers 4 and 5 of the Notice of Motion (payment of suspended funds and unfreezing of bank accounts) was dismissed. 5. There was no order as to costs.

The binding legal principles established in this case are: (1) The Electoral Court has jurisdiction to order the Electoral Commission to recognize a political party's leadership structure where there is credible evidence that internal disputes have been resolved and a legitimate structure has been established through proper internal party processes. (2) The Electoral Court cannot order the Electoral Commission to make payments to political parties or uplift suspensions where such powers are statutorily vested in the Commission under section 16(1)(b) of the Political Party Funding Act. To do so would amount to usurping the Commission's statutory powers. The Commission's discretion to suspend or uplift payments is subject to it being satisfied on reasonable grounds that a party has complied or failed to comply with the PPFA. (3) A party seeking relief against another entity must join that entity as a party to the proceedings if it has a direct and substantial interest in the matter. Failure to join such a party defeats the relief sought against it. (4) Electoral matters are inherently urgent by their nature, particularly where non-recognition of party structures impedes the party's ability to exercise constitutional rights to freedom of association and political participation. (5) Political parties must comply with financial accountability requirements under the Political Party Funding Act, particularly section 12 requiring submission of financial statements, and the Electoral Court will not make orders that allow parties to undermine these statutory obligations.

The Court made obiter observations regarding the general rule on costs in electoral matters. It stated that as a general rule, costs orders are not imposed upon a losing party in electoral matters unless such party's conduct has been vexatious, frivolous or abusive of the court processes, citing Arise Afrika Arise (AAAR) v Electoral Commission of South Africa (008/2023 EC) [2024] ZAEC 1 at para 31. The Court indicated it could think of no reason why this general rule should be departed from in the circumstances of this case. While this is a well-established principle in electoral law, the Court's reaffirmation of it in this context serves as obiter dicta guidance for future cases. The Court also made implicit observations about the importance of political parties resolving their internal disputes to enable them to function effectively and participate in the democratic process, though this was not strictly necessary for the determination of the legal issues before it.

This case is significant in South African electoral law for several reasons: (1) It clarifies the jurisdiction and limits of the Electoral Court in matters involving political party governance and internal disputes. (2) It affirms that while the Electoral Court can order recognition of party leadership structures following resolution of internal disputes, it cannot usurp the statutory powers vested in the Electoral Commission under the Political Party Funding Act. (3) It demonstrates the inherently urgent nature of electoral matters, particularly when they impact constitutional rights to freedom of association and political participation. (4) It confirms the joinder requirements in electoral litigation - parties with a direct and substantial interest must be joined if relief is sought against them. (5) It reiterates the general principle that costs are not awarded in electoral matters unless there is vexatious, frivolous or abusive conduct. (6) The case illustrates the Electoral Court's balancing act between facilitating democratic participation by political parties and ensuring compliance with electoral legislation and financial accountability requirements.