Malawu v The Electoral Commission and Others

The applicant was elected as a councillor for Amahlati Ward 13 in 2016 for a five-year term. During 2018-2019 he was accused of various breaches of the Code of Conduct for councillors and failure to attend three consecutive Council meetings. In March 2020, the MEC for Co-operative Governance (second respondent) removed him as a councillor after requesting representations. The applicant instituted review proceedings in the Grahamstown High Court, which were dismissed on 3 November 2020. The High Court held that the applicant had failed to attend more than three consecutive meetings and his removal was mandatory. On 3 November 2020 the applicant applied for leave to appeal. By-elections for the ward were scheduled for 11 November 2020, publicly announced in September 2020 and officially set on 9 October 2020. The applicant claimed he only learned of the election on 6 November 2020. On 9 November 2020 he launched an urgent application to postpone the by-elections. The applicant did not cite any of the four political parties (ANC, COPE, DA, EFF) whose candidates were standing for election.

• Whether the applicant's application for leave to appeal suspended the order removing him as councillor
• Whether the applicant had established urgency for the postponement application
• Whether the failure to join political parties and candidates as parties to the application was fatal to the application
• Whether the Electoral Court could raise the issue of non-joinder mero motu
• Whether the applicant had established grounds under section 8(1) of the Local Government Principal Electoral Act 2000 for postponement of the election
• Whether it was not reasonably possible to conduct a free and fair election on the scheduled date

The application was dismissed with no order as to costs on 11 November 2020, with written reasons delivered on 18 November 2020.

An application to postpone a by-election must join all political parties and candidates who have nominated candidates for that election as necessary parties, as they have a direct and substantial interest in the outcome and any judgment cannot be sustained without necessarily prejudicing their interests. The failure to effect such joinder is fatal to the application, particularly where there is insufficient time to remedy the defect before the scheduled election. The test for postponement of elections under section 8(1) of the Local Government Principal Electoral Act 2000 is whether it is not reasonably possible to conduct a free and fair election on the scheduled date, which requires consideration of all parties' positions, not merely the individual applicant's circumstances. An application for leave to appeal does not suspend an order removing a councillor where no order has been granted in the applicant's favour, and such pending applications confer no substantive rights.

The Court observed that the applicant's fundamental reasoning for claiming a reasonable prospect of success on appeal was flawed, specifically his inference that because certain members did not sign the investigative report, they had not seen or agreed to it. The Court stated this inference was unfounded, as the fact that certain members did not sign the report does not mean they were not party to it or did not make the recommendations contained in it. The Court also made observations about the extensive preparations undertaken for the by-election, including the opening of polling stations, publication of election timetables, and special COVID-19 safety protocol communications, which undermined the applicant's claim that he only learned of the election on 6 November 2020.

This case establishes important principles regarding the joinder of political parties and candidates in electoral matters, particularly applications seeking postponement of elections. It clarifies that: (1) political parties and candidates who have nominated candidates for an election are necessary parties to applications seeking to postpone that election; (2) the Electoral Court will raise non-joinder mero motu in electoral matters to protect the interests of affected parties; (3) the test for postponement under the Local Government Principal Electoral Act focuses on whether a free and fair election is possible, not on the individual interests of a removed councillor; and (4) pending leave to appeal applications do not confer substantive rights or suspend orders where no order has been granted in the applicant's favour. The judgment emphasizes the importance of proper procedure and the protection of all stakeholders' interests in the electoral process.