Liebenberg v Electoral Commission of South Africa

Mr Louis Petrus Liebenberg sought to contest the 2024 national elections as an independent candidate for regional seats in the National Assembly in four regions: Free State, Gauteng, Limpopo and Mpumalanga. Section 31B(3)(a)(i) of the Electoral Act, as read-in by the Constitutional Court in One Movement SA, requires independent candidates to submit at least 1000 verified voter supporter signatures for each region they intend to contest. Mr Liebenberg electronically submitted 13,427 identity numbers of voter supporters. After verification by the Electoral Commission, only 5,320 identity numbers were validated, and of those, only 3,445 had corresponding physical signatures. The breakdown per region was: Free State - 1,087 verified signatures; Gauteng - 1,356 verified signatures; Limpopo - 428 verified signatures; and Mpumalanga - 574 verified signatures. The Commission removed Mr Liebenberg's name from the candidate lists for Limpopo and Mpumalanga as he failed to meet the 1,000 signature threshold for those regions. This removal was triggered by a complaint from the Freedom Front Plus. Mr Liebenberg initially appeared on the NPE lists for all four regions on 2 April 2024 but was later removed from two regions. He sought an opportunity to rectify the shortfall by submitting additional signatures, which the Commission refused.

• Whether Mr Liebenberg complied with the peremptory requirements of section 31B(3)(a)(i) of the Electoral Act regarding the submission of at least 1,000 verified voter supporter signatures for each contested region
• Whether the Electoral Commission had a duty to notify Mr Liebenberg of his non-compliance and afford him an opportunity to rectify the shortfall
• Whether section 31C of the Electoral Act empowered the Chief Electoral Officer to allow Mr Liebenberg to supplement his voter supporter lists
• Whether the Commission's decision to remove Mr Liebenberg from the candidate lists for Limpopo and Mpumalanga was reviewable
• How factual disputes should be resolved in motion proceedings concerning electoral disputes

The application was dismissed with no order as to costs. Mr Liebenberg remained disqualified from contesting the elections for the National Assembly in the Limpopo and Mpumalanga regions but could contest in the Free State and Gauteng regions where he had met the requirements.

The binding legal principles established are: (1) Section 31B(3)(a)(i) of the Electoral Act imposes a peremptory requirement that independent candidates contesting elections for regional seats in the National Assembly must submit at least 1,000 verified voter supporter signatures for each region they intend to contest; (2) Non-compliance with this requirement results in automatic disqualification by operation of law, not by any discretionary decision of the Electoral Commission; (3) Section 31C of the Electoral Act only empowers the Chief Electoral Officer to rectify failures of compliance with sections 31B(3)(c), (d), (e), (f) or 31B(4), and only applies to candidates who have already submitted compliant voter supporter lists under section 31B(3)(a)(i) and (ii) read with regulation 2A; (4) The Electoral Commission has no inherent power or discretion to condone failure to comply with peremptory statutory requirements or deadlines unless expressly afforded such discretion by statute; (5) In factual disputes in motion proceedings, the Plascon-Evans principle applies and the court may reject denials that are bald, unsubstantiated, or clearly untenable on the papers.

The Court observed that the absence of discretion to condone non-compliance with electoral deadlines is by design, as deadlines serve the important function of ensuring fairness of elections and enabling the Commission to manage elections properly. A power to relax deadlines would place the Commission in an impossible position of deciding on a case-by-case basis whether to condone non-compliance, risking accusations of favouring one party over another and undermining its role as a neutral facilitator. The Court also noted that it matters not how the Commission became aware of non-compliance - whether through its own processes or through a complaint by another party - as non-compliance with section 31B(3)(a)(i) results in automatic disqualification. The Court commented that Mr Liebenberg's request to submit additional signatures after becoming aware of the verification results itself demonstrated his acknowledgment that he had not complied with the requirements.

This case provides important clarification on the interpretation and application of sections 31A, 31B and 31C of the Electoral Act following the Constitutional Court's read-in provisions in One Movement SA. It establishes that the requirement to submit verified voter supporter signatures is peremptory and that non-compliance results in automatic disqualification by operation of law. The judgment confirms that the Electoral Commission has no discretion to condone late submissions or allow candidates to supplement deficient supporter lists after the deadline. It clarifies the limited scope of section 31C, which only permits rectification of certain specified failures and does not apply to failures to submit compliant supporter lists in the first place. The case reinforces the principle that electoral deadlines serve the important function of ensuring fairness and proper electoral management, and a power to relax deadlines would undermine the Commission's neutrality. It also confirms the application of the Plascon-Evans principle to factual disputes in electoral litigation and affirms the Biowatch principle on costs in electoral/constitutional matters.