Thabazimbi Forum 4 Service Delivery v Independent Electoral Commission of South Africa and Others

The Thabazimbi Forum 4 Service Delivery (the Forum), a registered political party, obtained a proportional representation seat in the Thabazimbi Local Municipality in the 2021 local government elections. On 25 August 2023, Ms Mtjila and Mr Rangwanasha purportedly expelled Mr Tlhabadira from the Forum for gross misconduct with effect from 1 September 2023. On 1 September 2023, the Forum wrote to the Municipality informing it that Mr Tlhabadira was no longer a member and that a vacancy needed to be filled. The Forum also wrote to the Electoral Commission on 3 September 2023 informing it that Ms Mtjila was the chairperson and head of administration and that Mr Motshegwa was the contact person. However, the Commission's records reflected Mr Tlhabadira as the registered contact person and Ms Mzwana as the registered leader. Mr Tlhabadira and Ms Mzwana disputed the validity of the expulsion and maintained their positions. The Forum demanded that the Commission update its records to delete Mr Tlhabadira and Ms Mzwana and replace them with Mr Motshegwa and Ms Mtjila respectively. After several letters without substantive response, the Forum imposed a deadline of 1 March 2024 on the Commission and then approached the Electoral Court within three days thereafter.

• Whether the Forum could create its own timeline by imposing a deadline on the Electoral Commission and deem a decision to have been made on that date
• Whether the Forum had established that there was a valid notification to the Municipal Manager in terms of section 27(2) of the Local Government: Municipal Structures Act 117 of 1998
• Whether the Court could order the Commission to replace Mr Tlhabadira with Mr Motshegwa on the party list
• Whether the Court could order the Commission to replace Ms Mzwana with Ms Mtjila as the registered leader
• Whether the Forum had made out a proper case showing compliance with legal requirements or impossibility of compliance
• Whether a costs order should be granted against Ms Mtjila personally

Application dismissed with no order as to costs.

A litigant cannot create an artificial decision date by imposing a self-serving deadline on the Electoral Commission; the time for review runs from the actual decision. An applicant seeking to compel the Electoral Commission to replace a proportional representation councillor must establish in its founding affidavit that the statutory requirements have been met, particularly that the notification to the Municipal Manager was made by an "authorised representative" as required by section 27(2) of the Local Government: Municipal Structures Act 117 of 1998. Where a party acknowledges that a person is the registered leader of the party in the Commission's records, but seeks to replace that person, it must provide evidence of when and how that person ceased to hold the position and when and how the replacement was appointed or elected. Where there is an internal party dispute regarding leadership and membership, the Electoral Commission cannot be compelled to amend its records or effect replacements until that dispute is properly determined. The party bears the onus to establish either that the statutory requirements have been fulfilled or that it is impossible to fulfil them.

The Court observed that there appears to be a practice among litigants approaching the Electoral Court who, months after obtaining an unsatisfactory response from the Commission, impose a deadline for a "final" response so that the time period for review can start running from a date that suits the litigant. The Court stated this manner of litigation is "expedient and frivolous and is to be frowned upon". The Court noted that to the extent the Commission's due diligence exercise requires that the "authorised person" under the Structures Act be congruent with what the Commission has in its records (which reflect the "registered leader"), when the records do not mirror the requirements of the Structures Act, this is not acceptable. The Commission should, if it wishes to carry out such checks and balances, have a requirement that it also be informed in writing of the "authorised person". The Court observed that while there may be circumstances where section 27(2) of the Structures Act is deficient (such as where the authorised person is the person who is no longer a member of the party), that argument was speculative, irrelevant and not ripe for determination on the facts of this case.

This judgment clarifies important principles regarding the procedures for replacing proportional representation councillors in local government. It emphasizes that political parties cannot create artificial timelines by imposing deadlines on the Electoral Commission for purposes of triggering review timeframes. The judgment highlights the strict evidentiary requirements that must be met in application proceedings - an applicant must make out its case in the founding affidavit, particularly regarding compliance with statutory prerequisites. The case illustrates the interaction between the Local Government: Municipal Structures Act and the Electoral Commission's Regulations, noting a disjunction between the requirement for an "authorised representative" under the Structures Act and the "registered leader" under the Regulations. The judgment confirms that internal party disputes regarding leadership and membership must be properly resolved before the Commission can be compelled to amend its records or replace councillors. It reinforces that where there are competing claims to party leadership, the Commission is entitled to await proper resolution rather than being compelled to accept one faction's version.