Gamagara Community Forum v The Electoral Commission of South Africa and Others

The applicant, a registered political party, participated in the 2021 Local Government Elections (LGE 2021) and contested Ward 3 and Ward 4 in the Gamagara Local Municipality. The applicant, represented by its secretary general Mr Mines (who was also the applicant's candidate in Ward 4), lodged an objection on 5 November 2021 in terms of s 65(9) of the Local Government: Municipal Electoral Act No.27/2000. The objection related to Ward 4 only. On 11 November 2021, the Electoral Commission rejected the objection on the basis that the allegations were not substantiated by evidence. The applicant alleged nine irregularities during the LGE 2021, including: voters registered in Ward 3 voting in Ward 4; improper issuance of ballot papers; refusal to accept valid identity documents; failure to mark voters' thumbnails with ink; names missing from voters' roll; absence of the presiding officer; compromised independence of the presiding officer; and discrepancies in ballot counts. The Notice of Motion was dated 22 November 2021, but the application dated 23 February 2022 was only lodged in February 2022. The applicant failed to file a replying affidavit despite court directives.

• Whether the Electoral Commission's decision to reject the applicant's objection should be reviewed and set aside
• Whether the applicant complied with the time limits prescribed by the Electoral Act and the Electoral Court Rules
• Whether the applicant had proper authority to litigate on behalf of the party
• Whether the necessary parties were properly joined to the proceedings
• Whether the alleged electoral irregularities were sufficiently substantiated to warrant setting aside the election results

The application was dismissed. There was no order as to costs.

The binding legal principles established are: (1) Applications to review Electoral Commission decisions must comply strictly with time limits prescribed in both the Electoral Act (s 65(9) - 7 days) and the Electoral Court Rules (Rules 5 and 6 - 3 days); (2) All necessary and interested parties, including political parties that contested the relevant wards and affected municipalities, must be properly cited and joined in electoral review applications; (3) Persons purporting to represent political parties in litigation must demonstrate proper authority from the Commission's records; (4) In motion proceedings involving electoral disputes, where an applicant fails to file a replying affidavit, the Plascon Evans rule applies and the respondent's version must be accepted unless it is far-fetched or untenable; (5) Allegations of electoral irregularities must be substantiated by evidence and cannot be based on speculation, hearsay or suspicion; (6) An applicant cannot seek relief in respect of wards not covered by the original objection lodged with the Electoral Commission.

The Court observed that the alleged irregularities, on the face of it, were speculative, based on hearsay and suspicion, and were not substantiated by any evidence. The Court also noted that the Commission had dealt extensively with the alleged irregularities raised by the applicant, but these were not challenged due to the absence of a replying affidavit. The Court indicated that it had the discretion to dispose of the matter on the papers without referring it to an oral hearing, and members unanimously agreed to exercise this discretion in this case.

This case reinforces the strict procedural requirements applicable to electoral disputes in South African law. It demonstrates the Electoral Court's application of the Plascon Evans rule in motion proceedings where facts are disputed and the applicant fails to engage with the respondent's version. The case emphasizes the importance of: (1) compliance with strict time limits prescribed in electoral matters; (2) proper joinder of all necessary and interested parties; (3) proper authority to litigate on behalf of a political party; (4) substantiation of allegations with evidence rather than speculation or hearsay; and (5) engagement with the opposing party's case through filing of replying papers. The judgment illustrates that electoral challenges will not succeed where fundamental procedural requirements are not met, even before consideration of the substantive merits.