Mxube and Others v The Electoral Commission of South Africa and Others

The Makana Citizens' Front (MCF), a political party founded on 16 June 2021, was registered with the Electoral Commission of South Africa (the Commission). The first to fifth applicants were founding members of MCF and were placed at the top of the party's PR Councillors list for the November 2021 local government elections. MCF won five PR Councillor seats on the Makana Municipal Council in the 1 November 2021 elections, which were to be filled by the first to fifth applicants. Mr Mxube (first applicant) was elected as interim chairman, Convenor, and Head of Election Campaign at the founding members' meeting on 20 August 2021. Shortly after the elections, the fourth and fifth respondents (Mr Soxujwa and Mr Kota) claimed that the applicants had manipulated the PR Councillor Candidates list and disavowed the interim management committee. On 17 November 2021, Mr Kota and the sixth respondent (Mr Sixaba) unlawfully convened a meeting where they resolved to remove the applicants from the Makana Municipal Council. This meeting was held in contravention of MCF's constitutional requirements for removal of members. During January 2022, Mr Kota claimed to be the leader of MCF. Disciplinary hearings were convened on 14 February 2022, which the applicants did not attend as they did not recognize Mr Kota's authority. The applicants were found guilty in absentia and expelled from MCF. Following their expulsion, the fourth and fifth respondents advised the Makana Municipal Council (MMC) that the applicants' membership had been terminated, and the MMC removed the applicants as PR Councillors and replaced them with the sixth to tenth respondents. On 12 April 2022, the Commission sent a letter to the Municipal Manager informing the MMC that the sixth to tenth respondents had been declared elected and that the applicants had ceased to hold office.

• Whether the Electoral Court has jurisdiction under section 20(2A) of the Electoral Commission Act 51 of 1996 to hear disputes relating to membership, leadership, Constitution or founding instruments of a registered party
• Whether the meeting of 17 November 2021 and the subsequent disciplinary hearings were lawful and compliant with MCF's Deed of Foundation and Constitution
• Whether the removal of the applicants from MCF and their positions as PR Councillors was lawful
• Whether the decisions to replace the applicants with the sixth to tenth respondents should be reviewed and set aside
• Whether the applicants are entitled to back-pay for remuneration lost during the period of their unlawful removal

The court granted the following order: (1) The decisions by the fourth and fifth respondents purportedly on behalf of MCF were reviewed and set aside, including: (a) the decision to convene and conduct a disciplinary hearing on 14 February 2022; (b) the decision to expel the applicants; (c) the decision to declare vacancies in MCF PR Councillor positions; and (d) the decision to submit an updated PR Councillor list. (2) The decision to declare vacancies in Council was reviewed and set aside. (3) The removal of the applicants' names from MCF's PR Councillor Candidates list, the declaration that they cease to hold office, the placement of the sixth to tenth respondents' names at the top of the list, and their appointment to the Makana Municipal Council were reviewed and set aside. (4) The first applicant was declared the duly elected leader of MCF and the Electoral Commission was ordered to amend its records accordingly. (5) The second applicant was declared the main contact person for MCF with the Electoral Commission, with records to be amended accordingly. (6) The Electoral Commission was ordered to restore and reinstate the PR Councillor Candidates list gazetted prior to the 1 November 2021 elections. (7) The membership in MCF of the first to fifth applicants was restored. No order was made as to costs.

The binding legal principles established by this case are: (1) The Electoral Court has jurisdiction under section 20(2A) of the Electoral Commission Act 51 of 1996 to hear and determine disputes relating to membership, leadership, Constitution or founding instruments of a registered political party. (2) Political parties must strictly comply with the peremptory procedural requirements set out in their own constitutions when instituting disciplinary proceedings against members, particularly elected public representatives. (3) Meetings convened and disciplinary proceedings conducted in contravention of a political party's constitutional requirements are irregular, unlawful, and fatally flawed, and decisions arising from such proceedings are reviewable and subject to being set aside. (4) Expulsion of party members and removal of elected public representatives that does not comply with the constitutional prescripts of the political party organization are unlawful and must be set aside. (5) Where respondents against whom serious allegations of impropriety are made fail to file opposing papers despite being duly served, the court may infer acquiescence to the applicant's version of events and the sustainability of the applicant's cause of action. (6) In the Electoral Court, the general principle is that an unsuccessful party ought not to be ordered to pay costs, unless there are strong reasons justifying departure from this rule, such as where litigation is frivolous or vexatious.

The court made several non-binding observations: (1) The Electoral Commission does not take 'decisions' to remove councillors but rather records consequences flowing ex lege from facts presented to it, such as advices received from municipal councils. (2) Claims for back-pay of remuneration (damages) arising from unlawful removal are better dealt with in an action for damages rather than in an application to the Electoral Court, as such a forum allows for full ventilation of all related issues including quantum of damages and liability. (3) Delay in bringing an application (in this case, approximately 20 months between expulsion in April 2022 and launching the application in December 2023) may disproportionately affect available remedies, particularly claims for financial compensation. (4) Ordering a municipality to pay back-pay to unlawfully removed councillors could result in the municipality effectively paying double for the same expenses (having paid both the unlawfully appointed councillors and the reinstated councillors), which may be inequitable particularly where the municipality has limited financial resources. (5) The principle of costs in the Electoral Court should be exercised judicially having regard to all relevant considerations, but the general principle of no costs order should not be departed from lightly.

This case is significant in South African electoral law as it clarifies the jurisdiction and powers of the Electoral Court under section 20(2A) of the Electoral Commission Act 51 of 1996 to adjudicate disputes relating to membership, leadership, Constitution or founding instruments of registered political parties. The judgment emphasizes the importance of political parties adhering to their own constitutional procedures when disciplining or removing members, particularly elected public representatives. It demonstrates the court's willingness to intervene to protect party members against unlawful expulsion where internal party procedures are not followed. The case also illustrates the consequences that flow when a faction within a political party attempts to usurp control through irregular meetings and unlawful disciplinary processes. It clarifies the role of the Electoral Commission in such disputes, confirming that the Commission does not 'decide' to remove councillors but rather records consequences that flow from facts presented to it. The judgment serves as an important precedent for the protection of democratically elected representatives within political parties and reinforces the rule of law in internal party governance.