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

The applicants brought an urgent application on 29 October 2021, just days before the 1 November 2021 local government elections. The application papers were served by email on respondents at approximately 23h30 on 28 October 2021, with extremely short timelines for opposition (until 10h00 the next day for notices to oppose and until 12h00 for answering papers). The applicants sought an order declaring local government elections in 25 specified municipalities not to be free and fair, and sought to suspend those elections. The underlying dispute concerned the Electoral Commission's decision on 21 September 2021 to accept registration documents from PAC candidates whose National Executive Committee was elected at a Bloemfontein conference held on 20-30 August 2019. This decision by the Commission was made pursuant to a High Court order granted by Mahlangu AJ on 23 August 2021, which enjoined the Commission to allow the PAC as represented by the leadership elected at the Bloemfontein conference to participate in the 2021 local government elections. An appeal to the SCA was subsequently lodged on 18 October 2021. By the time the matter was heard on 29 November 2021, the elections had already taken place.

• Whether the application was materially defective due to failure to cite and serve necessary parties
• Whether the urgency of the application was self-created and warranted dismissal
• Whether the application was an abuse of court process due to unreasonable time frames and breach of court rules
• Whether the Electoral Commission acted unlawfully in accepting registration documents from PAC candidates pursuant to a valid High Court order
• Whether the Electoral Commission had the power to remove or terminate municipal councillors

The entire application was dismissed. There was no order as to costs.

An electoral application will be dismissed where: (1) applicants fail to cite and serve all necessary parties against whom relief is sought, including affected municipalities and interested parties such as political parties and independent candidates who contested the elections; (2) the urgency is self-created through unexplained delay between the cause of complaint arising and the launch of the application; (3) the time frames given to respondents are so unreasonable and unfair as to constitute breach of court rules and abuse of process; (4) the Electoral Commission acts pursuant to a valid court order, and such action cannot be impugned merely because an appeal has subsequently been lodged against that order. The Electoral Commission does not have the power to remove or terminate municipal councillors.

The Court observed that by the time of the hearing on 29 November 2021, 'the horse had already bolted' as the elections had already taken place on 1 November 2021, yet the applicants chose to proceed with arguing the matter. This observation suggests that even if the procedural defects had not been fatal, the matter may have been moot. The Court's comment that the Commission was 'obliged' to act in terms of the High Court order emphasizes the principle that organs of state must comply with valid court orders regardless of potential appeals, reflecting the broader constitutional principle of respect for court orders and the rule of law.

This case is significant in South African electoral law as it reinforces several important principles: (1) The strict requirements for proper citation and service of all parties against whom relief is sought in electoral disputes; (2) The importance of timeous action in electoral matters and the consequences of self-created urgency; (3) The requirement that even in urgent electoral matters, reasonable time must be afforded to respondents to respond, and breach of this constitutes abuse of process; (4) The binding nature of High Court orders on organs of state such as the Electoral Commission until such orders are set aside or suspended; (5) The limits of the Electoral Commission's powers, particularly that it does not have the power to remove or terminate municipal councillors. The case demonstrates the Electoral Court's intolerance for procedural irregularities and abuse of process, particularly in the sensitive context of electoral disputes where fairness to all parties and adherence to proper procedure is paramount.