The Electoral Commission v Visvin Gopal Reddy & Others

This case arose from statements made by Mr Visvin Gopal Reddy (first respondent) on 5 March 2024 and Mr Bonginkosi Gift Khanyile (second respondent) on 13 March 2024, both members of the Umkhonto Wesizwe Political Party (MK Party, the third respondent). Mr Reddy was a candidate for the national election scheduled for 29 May 2024, while Mr Khanyile was the national co-ordinator of the MK Youth League. On 5 March 2024, while applications were pending before the KwaZulu-Natal High Court and the Electoral Court, Mr Reddy made statements during a media interview, wearing MK regalia, warning that if courts stopped MK from registering there would be "anarchy", "riots like you've never seen", and "no election" if MK was not on the ballot. The video was viewed by approximately 138,000 people. On 13 March 2024, Mr Khanyile stated that if MK was removed from the ballot or President Zuma removed as their face of the campaign, there would be no elections in South Africa. He made threats that they were willing to "lay down our lives" for their constitutional rights. This video was viewed by over 243,000 people. On 18 March 2024, the Electoral Commission received a complaint from the ANC KwaZulu-Natal about these statements. The Commission engaged Harris Nupen Molebatsi Attorneys to investigate, with a report completed on 26 March 2024. On 25 April 2024, the Commission instituted urgent proceedings seeking various sanctions against the respondents.

• Whether the Electoral Court has jurisdiction to hear the matter as a court of first instance
• Whether the application was brought with the requisite urgency
• Whether the Commission had locus standi to institute the proceedings
• Whether the statements made by the first and second respondents constituted prohibited conduct under sections 87(1)(a)-(c) and 87(2) of the Electoral Act 73 of 1998
• Whether the statements violated section 93(2) of the Electoral Act
• Whether the first and second respondents were in contempt of court
• Whether the statements were protected by the constitutional right to freedom of expression under section 16 of the Constitution
• What appropriate penalties should be imposed for electoral contraventions
• Whether the Commission's decision to institute the application should be reviewed and set aside

1. It is found that the first and second respondents contravened sections 87(1)(a), (b) and (c), and 87(2) of the Electoral Act 73 of 1998. 2. The first and second respondents are ordered to pay a fine of R150,000 each, suspended for a period of five years from the date of the order on the following conditions: (i) That the two respondents do not contravene section 87(1) or 87(2) of the Electoral Act 73 of 1998 during the period of suspension; and (ii) That the two respondents do not make any statements that are intended to undermine the integrity of any electoral process during the period of suspension. 3. The counter-application is dismissed. 4. Each party to pay its own costs.

1. The Electoral Court has jurisdiction to sit as a court of first instance where sanctions under sections 96(2)(h) or (i) of the Electoral Act are sought (disqualification of candidature or cancellation of party registration), pursuant to Rule 2(3) of the Electoral Court Rules. 2. Section 96(1) of the Electoral Act, which grants the Electoral Court "final jurisdiction", must be interpreted consistently with the Constitution and does not oust the jurisdiction of the Supreme Court of Appeal or Constitutional Court, nor does it preclude the Electoral Court from sitting as a court of first instance. 3. The meaning of allegedly prohibited statements must be determined objectively, applying the test of what a reasonable reader of ordinary intelligence would understand the statements to mean in their context, including both express and implied meanings. 4. Statements threatening violence, anarchy, riots, or the prevention of elections if certain demands are not met constitute prohibited conduct under sections 87(1)(a)-(c) and 87(2) of the Electoral Act as they: - Compel or unlawfully persuade persons not to vote - Interfere with the independence and impartiality of the Electoral Commission - Prejudice persons for performance of their functions under the Act - Prevent persons from exercising rights conferred by the Act 5. Such threatening statements are not protected by the constitutional right to freedom of expression under section 16(1) as they fall within the exclusions in section 16(2), particularly incitement of imminent violence. 6. Civil contempt of court requires proof of: (a) a court order; (b) service or knowledge of the order; (c) non-compliance; and (d) wilfulness and mala fides. Scurrilous attacks on the judiciary without disobedience of a specific court order constitute potential scandalising of the court, not ordinary civil contempt, and should be addressed through criminal proceedings. 7. Sanctions imposed under section 96(2) of the Electoral Act must be proportionate to the degree of blameworthiness, the nature of the offence, and its effect on voters' ability to exercise their political rights under section 19 of the Constitution. The Court must consider both aggravating and mitigating factors, including the position of the transgressor, the reach of the statements, timing relative to elections, and any consequences already suffered.

1. The Court noted that electoral matters are inherently urgent by their very nature and should be given necessary preference and urgency, being brought at the earliest possible opportunity because of their potential impact on elections. 2. The Court observed that the Commission's delay of six weeks in instituting proceedings (from receipt of complaint on 18 March 2024 to filing on 25 April 2024) was not adequately explained and the matter should have been dealt with far more expeditiously. This lack of urgency resulted in the matter being heard a day before the national and provincial elections, requiring the court to sit long after normal hours. 3. The Court commented that courts are entitled to expect the actual witness who can depose to events in question to do so under oath, particularly regarding the intention behind impugned conduct, rather than relying on a third party deponent. 4. The Court expressed the view that while maximum penalties of R200,000 were sought, imposing such maximum fines would be disproportional in the circumstances, particularly given that Mr Khanyile had already been punished by the MK Party through removal from his Youth League leadership position. 5. The Court noted that whatever sanction is imposed should be aimed at protecting the electoral process in future and should have the ability to dissuade other party members from transgressing the provisions of the Act. 6. The Court observed that while this Court generally does not order an unsuccessful party to pay costs, this rule is not inflexible, but given the Commission's delay in bringing the application, a fair order was that each party should pay its own costs. 7. The Court left open the question of whether this Court's jurisdiction in constitutional matters can be ousted without offending the Constitution, noting it was an important matter on which there was little argument and it was not necessary to decide in this judgment. 8. The Court noted that the investigation report produced by the Commission's attorneys was retained on a confidential and privileged basis, and the Commission elected to retain its legal privilege over it.

This case is significant in South African electoral law for several reasons: 1. **Electoral Court jurisdiction**: It clarifies that the Electoral Court can sit as a court of first instance in appropriate circumstances, particularly where sanctions of disqualification of candidature or cancellation of party registration are sought, per Rule 2(3). The "final jurisdiction" in section 96(1) does not prevent the Electoral Court from being a court of first instance, nor does it oust the jurisdiction of the Supreme Court of Appeal or Constitutional Court. 2. **Limits on political speech**: It establishes clear boundaries on political expression during election periods. While freedom of expression is protected under section 16 of the Constitution, statements that constitute incitement to violence, threats to prevent elections, or intimidation of voters are not constitutionally protected. 3. **Protection of electoral integrity**: The judgment emphasizes that the Electoral Court must impose sanctions that create conditions conducive to free and fair elections and protect democratic tolerance. Threats to derail elections or prevent voting constitute serious prohibited conduct. 4. **Objective test for statements**: The Court applied the Le Roux v Dey objective test - what meaning would a reasonable reader of ordinary intelligence attribute to statements in context - to determine whether conduct is prohibited under the Electoral Act. 5. **Distinction between civil contempt and scandalising the court**: The judgment clarifies that scandalising the court (making scurrilous attacks on the judiciary) is distinct from ordinary civil contempt (disobeying court orders) and should be addressed through criminal proceedings with full procedural protections. 6. **Proportionality in electoral sanctions**: The Court demonstrated that while maximum penalties may be available, sanctions must be proportional to the severity of the transgression, taking into account aggravating and mitigating factors, including whether the person has already suffered consequences. 7. **Role of Electoral Commission**: The case confirms the Commission's locus standi to institute proceedings to enforce the Electoral Act and Code of Conduct, acting through the chief electoral officer as its head.