MEC Co-operative Governance, Human Settlements and Traditional Affairs, Northern Cape v Independent Electoral Commission and Others

Councillor Danny Jonas was a duly elected councillor and mayor of the Thembelihle Local Municipality, elected as an independent candidate (not nominated by a political party). In April 2014, the MEC became aware that Councillor Jonas' name appeared on the candidate list of the Economic Freedom Fighters (EFF) for provincial and national parliament elections. The MEC took the view that this meant Councillor Jonas had become a member of the EFF and therefore a vacancy had arisen in Ward 1 under section 27(f)(ii) of the Local Government: Municipal Structures Act 117 of 1998. The MEC requested the municipal manager to call a by-election, and when this did not occur, approached the EC to manage a by-election. The EC refused, stating no vacancy had arisen as there was no proof Councillor Jonas had joined the EFF. Councillor Jonas consistently denied membership of the EFF, stating he had agreed to have his name on their list because of his experience and expertise, and that membership was not required to represent the party in parliament.

• Whether a councillor elected as an independent candidate who has their name placed on a political party's candidate list automatically becomes a member of that party by operation of law
• Whether section 27(f)(ii) of the Local Government: Municipal Structures Act creates a vacancy when an independent councillor's name appears on a party list
• Whether the EC's refusal to manage a by-election constituted unlawful administrative action
• What constitutes 'membership' of a political party for purposes of section 27(f)(ii) of the Structures Act
• Whether factual evidence established that Councillor Jonas had become a member of the EFF

The application was dismissed. The court found that no vacancy had occurred in Ward 1 of the Thembelihle Local Municipality and that the Electoral Commission's refusal to manage a by-election was lawful and justified.

The binding legal principles established are: (1) A candidate's name appearing on a political party's candidate list does not, ipso iure (by operation of law), make that person a member of that political party; (2) Membership of a political party is a voluntary choice that requires an offer and acceptance - it cannot be acquired involuntarily or by operation of law; (3) The words 'member', 'candidate', and 'supporter' are not synonymous in electoral law; (4) For purposes of section 27(f)(ii) of the Local Government: Municipal Structures Act, determining whether a councillor has 'become a member' of a political party requires a factual investigation and factual conclusion, not merely a legal interpretation; (5) Section 19 of the Constitution protects the right to make political choices, which includes the freedom to join or not join political parties - this right cannot be undermined by deeming someone to be a member based solely on list placement; (6) The Electoral Act's requirement for parties to nominate 'candidates' does not require those candidates to be members of the nominating party.

The court observed that the simplest manner for the applicant to determine whether Councillor Jonas had become a member of the EFF would have been to approach the EFF directly and request confirmation of his membership or lack thereof, which was not done. The court also noted that every political party has rules and regulations, and in most cases a constitution, determining who may be a member and who qualifies to be nominated as a candidate - it is for the party itself to resolve whether its candidates are members. The court commented that the dispute was not really about the correct interpretation of section 27(f)(ii), as the parties were ad idem (in agreement) on what it means - that an independent councillor must vacate office if he/she becomes a member of a political party during their term.

This case is significant in South African electoral law as it clarifies the distinction between being a candidate on a political party list and being a member of that political party. It establishes that appearing on a party's candidate list does not automatically make one a member of that party by operation of law. The judgment reinforces constitutional principles regarding political rights and freedom of choice under section 19 of the Constitution, emphasizing that membership of political parties is voluntary and cannot be involuntary or deemed. It provides important guidance on the interpretation of section 27(f)(ii) of the Local Government: Municipal Structures Act, clarifying that a factual investigation is required to determine party membership, and that the provision does not operate automatically based on list placement. The case also demonstrates the application of administrative law principles to electoral matters and the standard of proof required in motion proceedings involving disputed facts (Plascon-Evans principle).