Sesing Johannes Johnson and Others v Electoral Commission and Others

The applicants were individuals who intended to register as independent candidates for municipal by-elections in various wards of the Tlokwe Municipality, North West Province, scheduled for 18 September 2013. On 8 August 2013, the first to third applicants (and possibly others) approached the second respondent, an official of the Electoral Commission, to ensure their nomination documents were in order. The second respondent undertook to check the documents but failed to advise the applicants timeously that their Appendix 8 forms (containing signatures of at least 50 registered voters from their respective wards) were non-compliant. The applicants only learned of the deficiencies after the cut-off date for submitting nomination forms had passed, preventing them from correcting the documents. The Commission mistakenly rejected the first applicant due to a clerical error in capturing names from his Appendix 8 form. The remaining five applicants were also rejected for non-compliance. The applicants sought postponement of the by-elections to allow them to register as candidates.

• Whether the Electoral Commission has a duty to assist prospective candidates in ensuring their nomination documents comply with legislative requirements
• Whether the failure of the Commission's official to advise applicants of non-compliance with requirements constitutes a breach of duty
• Whether the elections could be considered free and fair when prospective candidates were excluded due to the Commission's failure to assist them
• Whether other registered candidates should have been joined as parties
• Whether the by-elections should be postponed under section 8 of the Local Government: Municipal Electoral Act 27 of 2000

1. The Electoral Commission was ordered to request the MEC to postpone the by-elections in Wards 1, 4, 11, 12, and 20 of the Tlokwe Municipality scheduled for 18 September 2013. 2. The Electoral Commission was ordered to conduct a full investigation into the conduct of the second respondent (Dise John Makodi) for the period between 8 August 2013 and 27 August 2013 pertaining to the registration of the applicants as candidates. 3. The 2nd, 3rd, 4th, 5th, and 6th applicants were allowed to register as candidates in their respective wards in the postponed by-elections (subject to submitting compliant Appendix 8 forms).

The Electoral Commission has a constitutional and statutory duty to assist prospective candidates, not merely voters, in ensuring compliance with electoral requirements. This duty includes proactively checking nomination documents and advising candidates timeously of any deficiencies to allow correction before cut-off dates. When an official of the Commission undertakes to check documents for compliance, there is a concomitant duty to revert to the candidates and advise whether the documents are in order. Electoral provisions must be interpreted to promote participation and enfranchisement rather than exclusion and disenfranchisement. The failure of the Commission to fulfill its duty to assist candidates results in elections that are not free and fair within the meaning of section 190(1)(b) of the Constitution. Such assistance to candidates does not create partiality but rather validates the Commission's independence and impartiality by effectively responding to diverse issues and facilitating participation.

The court expressed concern about the Commission's explanation of a "clerical error" regarding the first applicant's rejection, noting the absence of any proper explanation of how such an error could occur in the disqualification of a prospective candidate. The court suggested that the Commission should develop a system to verify compliance with legislation when documents are submitted by candidates and allow candidates to submit documents well in advance of cut-off dates to render proper assistance. The court observed that the duties of the Commission do not end with mechanically implementing the letter of the law and that it should not act merely as a verifying agent for strict compliance with legislation. The court noted that the Commission's duty to assist should promote a culture of helpfulness to all involved in elections.

This judgment is significant in South African electoral law as it establishes and clarifies the Electoral Commission's positive duty to assist prospective candidates in complying with electoral requirements. It moves beyond a mechanical or technical approach to electoral administration and establishes that the Commission must actively facilitate participation in elections. The judgment reinforces the constitutional values of participation and enfranchisement in the electoral process, extending these principles beyond voters to include candidates. It demonstrates that the Commission's constitutional mandate to ensure free and fair elections includes proactive assistance to candidates, not merely verification of compliance. The case also clarifies that electoral statutes must be interpreted to promote participation rather than exclusion, consistent with the foundational value of universal adult suffrage. It represents an important development in understanding the role and duties of Chapter 9 institutions in supporting constitutional democracy.