Sicengu v Electoral Commission of South Africa and Others

The applicant, Sitembiso Dalkanyo Sicengu, was elected as a Councilor for Ward 19 of the Mbhashe Local Municipality during the 2016 local government elections for a five-year term ending in 2021. In June 2020, his political party (the ANC) found him guilty of misconduct and suspended him for three years. The ANC requested the Municipal Manager to terminate the applicant's membership of the council in terms of section 27(1)(f)(i) of the Local Government: Municipal Structures Act 117 of 1998. The MEC, after consulting the Independent Electoral Commission, called a by-election and a replacement was elected, whose term expired in August 2021. The applicant unsuccessfully challenged the declaration of the vacancy at the Mthatha High Court and also lodged an appeal with the ANC and applied for a review in the Gauteng High Court (Johannesburg), which was still pending. The applicant waited over three years after his removal in June 2020 before bringing this urgent application. This case involved the same parties, facts, issues and prayers as a previous case (2/23EC) which had been dismissed by the Electoral Court on 8 June 2023.

• Whether the Electoral Court has jurisdiction to grant relief relating to matters falling outside the provisions of section 20 of the Electoral Commission Act 51 of 1996
• Whether the application was properly brought on an urgent basis given the three-year delay
• Whether the principle of res judicata and issue estoppel applied to bar the application
• Whether the relief sought was competent and capable of implementation

The application was dismissed with no order as to costs.

The Electoral Court does not have jurisdiction to grant an interdict or other relief relating to matters falling outside the provisions of section 20 of the Electoral Commission Act 51 of 1996. Section 20 limits the Court's jurisdiction to reviews of Commission decisions relating to the interpretation of law, and appeals where leave has been granted by the chairperson of the Electoral Court. The principles of res judicata and issue estoppel apply to prevent relitigation of matters involving the same parties, cause of action, facts and law that have been finally decided by the Electoral Court. Courts may only make orders that are reasonable, effective, enforceable and capable of execution.

The Court noted that the applicant's approach in bringing what appeared to be an appeal or review without complying with the statutory requirements showed a misunderstanding of the proper legal processes. The Court observed sympathetically that the applicant was indigent, appeared in person without legal representation, was probably unemployed, and had relied on his councilor's salary. The Court stated that the applicant appeared to have pursued this 'fruitless exercise' out of desperation. While these observations did not form part of the binding legal reasoning, they informed the Court's discretion not to award costs against the applicant despite his unsuccessful application.

This case clarifies the limited jurisdiction of the Electoral Court under section 20 of the Electoral Commission Act 51 of 1996. It reinforces that the Electoral Court cannot grant interdicts or other relief relating to matters that fall outside its statutory jurisdiction, particularly where the decision does not relate to the interpretation of any law and where leave to appeal has not been obtained. The case also demonstrates the application of res judicata and issue estoppel principles in electoral matters, and emphasizes that courts can only make orders that are reasonable, effective, enforceable and capable of execution. It serves as a warning against attempts to relitigate matters that have been finally determined and highlights the importance of bringing applications timeously, particularly when claiming urgency.