Sello David Nyaku v Electoral Commission of South Africa - Chief Electoral Officer and Others

The applicant sought to contest the local government elections on 1 November 2021 as an independent candidate in Ward 11 in the Midvaal Local Municipality. On 21 September 2021, he attended the Commission's local office in Meyerton where he completed and signed a nomination acceptance form, submitted a copy of his ID, and proof of payment of the required deposit. He was furnished with a form for 50 voter names and signatures which had to be submitted by 22 September 2021. On 22 September 2021, upon returning the forms, it was discovered that the ink on one form was faint making names and ID numbers illegible. He was asked to submit additional names to replace the illegible ones. At around 17h53 that afternoon, he emailed to the Commission's local office a list containing the required replacement names and signatures. He was subsequently advised that his registration as an independent candidate had been cancelled. The Commission asserted that the applicant failed to ensure that his nomination as a candidate, together with the requisite supporting documents, was submitted timeously before 17h00 on 21 September 2021 in terms of the Amended Election Timetable published under the Local Government: Municipal Electoral Act 27 of 2000.

• Whether the applicant complied with the deadline in the amended election timetable for submission of his nomination as a candidate together with all necessary documents as required by sections 17(1) and 17(2) of the Local Government: Municipal Electoral Act 27 of 2000
• Whether the Commission acted irrationally or irregularly in disqualifying the applicant's registration
• Whether strict adherence to the election timetable is required or whether late submissions can be condoned
• Whether the election in Ward 11 should be postponed to allow the applicant to contest on an equal footing with other candidates

The Court granted an order: (1) condoning the applicant's late filing of his replying affidavit; (2) dismissing the applicant's application with no order as to costs.

Strict adherence to the prescripts of an election timetable is required in terms of section 11(3) of the Local Government: Municipal Electoral Act 27 of 2000, which provides that any act required to be performed in terms of the Act must be performed by no later than a date and time stated in the election timetable. Failure to submit a nomination with all supporting documents timeously in accordance with section 17(1) and 17(2) of the Act and the election timetable renders the nomination of a candidate invalid. There is no provision in section 17 of the Act that permits rectification of a failure to lodge the required form with at least 50 signatures after the deadline for candidate nominations. Adherence to the timetable is peremptory since certain requirements have to be complied with within the time limits stipulated in the timetable in order to properly prepare for elections and to avoid unfair advantage to particular parties or candidates.

The Court noted that the purpose of the election timetable is to facilitate the smooth running of the election process, to allow the administration of elections to proceed without disruption, and for officials to properly prepare for the election by, inter alia, the announcement of contesting parties and candidates and preparation and distribution of ballot papers. The timetable also serves to avoid unfair advantage, occasioned by late entry, to a particular party or candidate. The Court observed that in seeking a postponement of the election, the applicant should have cited all political parties and other candidates who would be directly impacted by such postponement and given them notice of the relief being sought, citing Bowring N O v Vrededorp Properties CC [2007] ZASCA 80; 2007 (5) SA 391 (SCA) para 21.

This case reinforces the principle of strict adherence to election timetables in South African electoral law. It establishes that deadlines prescribed in election timetables are peremptory and must be complied with in order to ensure the smooth running of the election process, proper preparation by electoral officials, and fairness to all candidates. The case demonstrates that there is no scope for rectification of failures to lodge required documents after the deadline for candidate nominations, even where the failure may appear technical in nature. It emphasizes that allowing non-compliance would be unfair to candidates who do comply with the prescribed deadlines and would undermine the integrity and efficiency of the electoral process.