Sabelo Sithole v Electoral Commission of South Africa and Abantu Batho Congress

The Abantu Batho Congress (ABC), a registered political party formed on 8 January 2020, faced a leadership dispute between Mr. Bhungu Mgenzeni Gwala, who claimed to be the lawfully elected leader, and Mr. Philani Godfrey Mavundla, who insisted he was the legitimate leader. ABC's Secretary General requested the Electoral Commission to amend its records to reflect Mr. Gwala as the newly elected President on 30 October 2023 and 23 November 2023, but the Commission declined, stating it does not enter into party disputes. This prompted the applicant, Sabelo Sithole, to launch an application on 31 July 2024 seeking to remove Mr. Mavundla from his positions and have the Commission update its records. Mr. Mavundla had been expelled from ABC on 6 November 2023 following a disciplinary hearing. However, Mavundla successfully challenged his expulsion in the Pietermaritzburg High Court, obtaining an interim order on 20 September 2023 that put his expulsion on hold. The applicant had also been expelled from ABC on 27 October 2023 but never challenged this expulsion. Case No: 13942/23 dealing with the same leadership dispute was pending before the Pietermaritzburg High Court, with the rule nisi extended until confirmed or discharged by court order dated 22 October 2024.

• Whether the applicant had standing to bring the application given his own expulsion from ABC
• Whether the application was frivolous and vexatious given the pending proceedings before the Pietermaritzburg High Court dealing with the same matter (lis alibi pendens)
• Whether the intervening party (Mr. Mavundla) should have been joined as a party to the proceedings (non-joinder)
• Whether service was properly effected on the intervening party
• Who was the legitimate leader of ABC
• Whether the Electoral Commission should be ordered to amend its records to reflect a legitimate leader of ABC
• Whether punitive costs should be awarded

The application was dismissed with costs on an attorney and client scale against the applicant.

The binding legal principles established are: (1) Where an application is pending before another court dealing with the same subject-matter between the same parties, instituting parallel proceedings in the Electoral Court constitutes frivolous and vexatious litigation and must be dismissed based on the doctrine of lis alibi pendens; (2) A party who has a direct and substantial interest in the subject-matter of litigation which may prejudice that party must be joined as a party to the proceedings; (3) Political party constitutions are the governing instruments for party operations and must be complied with in resolving internal disputes; (4) Where a court order extends a rule nisi regarding party leadership or expulsion matters until confirmed or discharged, those processes are put on hold and cannot be circumvented by instituting alternative proceedings; (5) The Electoral Commission cannot be compelled to amend its records regarding party leadership while disputes on the same issues are pending before other courts.

The court made several non-binding observations: (1) There appears to be an emerging and unpleasant norm of internal party strife concerning leadership disputes within registered political parties that the Electoral Court has had to deal with increasingly in 2024; (2) The evidence presented before the court was sketchy and difficult to grasp, with no attempts made to assist the court to have a full picture of events; (3) The applicant was 'jumping from one court to another with the same issue'; (4) The applicant was 'economical with the truth' when invited by the court to provide details about pending cases elsewhere; (5) The status of the party leader has far reaching implications and cannot be taken lightly, particularly given that the ABC Constitution bestows upon the party leader the power to expel members; (6) The application could not be regarded as a bona fide application given the circumstances; (7) Political parties should resolve their internal disputes in accordance with their constitutions rather than through multiple court applications.

This case is significant in South African electoral law as it reinforces several important principles: (1) The Electoral Court will not entertain matters that constitute lis alibi pendens and will dismiss such applications as frivolous and vexatious; (2) Political party constitutions are the instruments which facilitate and regulate participation by members in party activities and govern operational issues including leadership elections; (3) The Electoral Commission does not enter into internal party disputes and cannot be compelled to update records while such disputes are pending before other courts; (4) The non-joinder principle applies in electoral matters where parties with direct and substantial interest in the subject-matter must be joined; (5) Punitive costs on an attorney and client scale can be awarded in electoral matters where conduct is vexatious, frivolous or abusive of court processes; (6) The case reflects a concerning trend of internal party strife and leadership disputes within registered political parties that the Electoral Court has had to deal with increasingly in 2024.