National Freedom Party v Electoral Commission and Another

The National Freedom Party (NFP), a registered political party, sought to participate in the municipal elections scheduled for 3 August 2016. The election timetable, published in accordance with the Local Government: Municipal Electoral Act, required election deposits to be paid by 2 June 2016. The NFP failed to pay the deposits by this deadline and only did so on 22 June 2016. Additionally, the NFP irregularly submitted electronic nominations of ward candidates for several local municipalities. The NFP sought relief from the Electoral Court on an urgent basis on 1 July 2016, seeking condonation for late payment and acceptance of candidate nominations. During argument, the NFP abandoned its original relief and sought an order directing the Electoral Commission to consider amending the electoral timetable under section 11(2)(b) of the Municipal Electoral Act. The Inkatha Freedom Party (IFP) applied to intervene in the proceedings.

• Whether there was any decision of the Electoral Commission capable of being appealed
• Whether the Electoral Court could grant leave to appeal under section 20(2) of the Electoral Commission Act in the absence of a decision interpreting law or another matter for which an appeal is provided by law
• Whether the matter could be brought as a review in the absence of a specific decision being identified and a record of proceedings
• Whether the Electoral Commission has power to condone late payment of electoral deposits or amend the electoral timetable for the benefit of a single non-compliant party
• Whether the Electoral Court has power to grant condonation for non-compliance with the electoral timetable
• Whether the inclusion of a non-compliant party would promote free and fair elections

The application was dismissed with no order as to costs. No order was made on the IFP's application for intervention as it became unnecessary.

The electoral timetable published under section 11 of the Local Government: Municipal Electoral Act becomes subordinate legislation with binding force and effect on all parties. Neither the Electoral Commission nor the Electoral Court has power to condone non-compliance with electoral timetables or other electoral prescripts. Leave to appeal under section 20(2) of the Electoral Commission Act can only be granted where there is a decision of the Commission relating to interpretation of law or another matter for which an appeal is specifically provided by law. Free and fair elections require rigorous adherence to electoral prescripts and even-handed treatment of all participants; allowing non-compliant parties to participate would be unfair to compliant parties and undermine the integrity of the electoral process. The power to amend the electoral timetable under section 11(2)(b) cannot be exercised for the benefit of individual non-compliant parties but must apply equally to all participants.

The Court observed that if the electoral timetable could be changed at the whim of individuals or parties, it would become an inefficient electoral tool. The Court noted that the NFP's inability to participate arose solely from its own failure to comply with mandatory provisions, not from any action or inaction of the Electoral Commission. The Court also commented that failure to comply with deposit requirements results in disqualification from participating in elections, with no scope for condonation or waiver by the Electoral Commission itself. The Court emphasized that even-handedness in dealing with all political parties and candidates is crucial to electoral integrity and its perception by voters, and that the Electoral Commission must not be placed in a position where it has to make ad hoc decisions about non-compliant parties.

This case reinforces critical principles governing South African electoral law: (1) the binding nature of electoral timetables as subordinate legislation; (2) the absence of any power of condonation for non-compliance with electoral prescripts, either by the Electoral Commission or the Electoral Court; (3) the requirement for rigorous adherence to electoral procedures to maintain the integrity and perceived fairness of elections; (4) the principle that electoral processes must be fair to all parties equally, not just favor individual parties; and (5) the limited appellate and review jurisdiction of the Electoral Court. The judgment emphasizes that free and fair elections are secured through even-handed application of electoral laws, not through ad hoc accommodations for non-compliant parties. The case demonstrates that electoral values are best advanced through strict compliance with electoral prescripts, regardless of a party's support base or perceived importance.