National Freedom Party v Electoral Commission of South Africa and Others

The National Freedom Party (NFP) had been subject to leadership disputes since before the 2019 national elections. An interim National Executive Committee (NEC) was formed to hold proper elections. An elective conference was held in Ulundi in December 2019, but the KwaZulu-Natal High Court set it aside in November 2021. Leave to appeal was granted in November 2023 and the appeal was pending before the SCA. A new elective conference was held in December 2023 which also became subject to a court challenge. The Electoral Commission recognized the 2023 NEC leadership on 26 February 2024. Mr Zulu, deponent for one faction claiming to represent the 2019 NEC, brought an urgent application to compel the Commission to recognize the 2019 NEC as the only lawful structure authorized to submit candidate lists for the 29 May 2024 national elections. The deadline for submitting candidate lists was 8 March 2024. Mr Zulu had previously brought an identical application in the KwaZulu-Natal High Court which was still pending. He failed to join or serve the 2023 NEC faction as parties to the application.

• Whether an application for leave to appeal restores the status quo ante where a court order setting aside an elective conference is under appeal
• Whether the court could grant relief compelling recognition of one faction without joining directly affected and interested parties (the 2023 NEC faction)
• Whether the court could entertain an application for identical relief while similar proceedings were pending in the High Court
• Whether the applicant had established proper authority to bring the application on behalf of the NFP
• What is the proper status quo ante when both competing factions' elections have been challenged in court

1. The second and third respondents were granted leave to intervene in the proceedings with no order as to costs. 2. The applicant's application was dismissed with no order as to costs.

An application for leave to appeal against a court order does not change the status quo ante to restore a position that never legally existed - it at best suspends the order under appeal and restores the actual status quo ante that existed before that order. Relief that directly affects and prejudices interested parties cannot be granted without joining those parties, regardless of urgency. Where the Electoral Commission has made a decision recognizing particular party leadership, that decision stands unless and until it is reviewed and set aside - a court cannot simply override it by recognizing alternative leadership. A court cannot entertain an application for relief when identical proceedings seeking the same relief are pending in another court without those proceedings first being withdrawn. When both competing factions within a party have had their elections challenged in court, neither can claim exclusive recognition on the basis that the other's election is under challenge.

The court noted that Mr Zulu's allegations that the Electoral Commission was biased because it pointed out non-joinder of interested parties in previous High Court proceedings had 'absolutely no foundation' - it was the Commission's duty to point out such procedural defects and any court would have identified the non-joinder regardless. The court observed that the urgency in the matter was self-created by the applicant's delay. The court also noted with concern that Mr Zulu's approach 'smacks of forum shopping, which cannot be condoned.' There was doubt expressed about whether the NFP was properly the applicant, given the factional disputes, with the court noting 'Until an order is made, either by this court or another, that Mr Zulu's faction or the 2019 NEC is the valid authority of the NFP, it would, in my view, be premature to refer to them as the NFP.' The court also referenced concerns about whether Mr Zulu was a member in good standing and whether the resolution empowering him to bring the application was valid, though these were not determinative given the other fatal flaws.

This case is significant for establishing important procedural principles in electoral disputes involving internal party factionalism. It clarifies that: (1) parties cannot obtain relief affecting directly interested parties without joining them, even in urgent electoral matters; (2) an application for leave to appeal does not automatically restore a previously recognized status but at best restores the actual status quo ante that existed before the court order; (3) forum shopping by bringing identical applications in multiple courts simultaneously will not be condoned; (4) parties seeking the Electoral Court to compel the Electoral Commission to recognize particular leadership must first review and set aside any existing contrary decision by the Commission. The case demonstrates the Electoral Court's careful approach to internal party disputes and its refusal to intervene in factional leadership contests without proper procedural compliance, even under time pressure from electoral deadlines. It reinforces that electoral urgency does not override fundamental procedural fairness requirements.