The Giving Foundation NPC v Electoral Commission of South Africa and Another

The Giving Foundation NPC, a non-profit juristic person represented by Mr Yoshihito Mavunga Yame, brought an application seeking to set aside Proclamation 158 of 2024 which proclaimed the 2024 National and Provincial Elections. The Foundation contended that the proclamation issued by the President in terms of section 49(2) of the Constitution was unlawful because it only provided for one voting day, whereas the Foundation argued it should have included two separate dates: one for the electorate to vote and another for members of the National Assembly to elect the President and other office bearers. The Foundation also alleged that the Electoral Commission and President contravened section 87(4) of the Electoral Act by proceeding with an unlawful election. The application was instituted over a month after the election was proclaimed and two months before the election date. Mr Yame failed to appear at the virtual hearing scheduled for 7 May 2024, only notifying the court afterward that he was unaware of the set down.

• Whether the Electoral Court had jurisdiction to determine whether the President fulfilled his constitutional obligation to proclaim the election under section 49(2) of the Constitution
• Whether the determination of compliance with section 49(2) falls within the exclusive jurisdiction of the Constitutional Court under section 167(4)(e)
• Whether the proclamation complied with section 49(2) of the Constitution
• Whether section 17(1) of the Electoral Act is constitutional
• Whether the application was brought at the appropriate time

The application was dismissed. No costs order was made as it is not the practice of the Electoral Court to grant costs orders and the Commission did not seek costs.

Where an applicant seeks to challenge presidential conduct on the basis that it does not fulfil a constitutional obligation specifically imposed on the President by the Constitution, such a challenge falls within the exclusive jurisdiction of the Constitutional Court under section 167(4)(e) of the Constitution, and not within the jurisdiction of the Electoral Court or other high courts. Section 49(2) of the Constitution imposes a positive constitutional obligation on the President to proclaim elections, and any determination of whether that obligation has been fulfilled can only be made by the Constitutional Court. This exclusive jurisdiction applies even where the challenge relates to electoral matters that would otherwise fall within the Electoral Court's general jurisdiction.

The court made several obiter observations: (1) It noted that the application was not brought at the earliest possible opportunity, having been instituted over a month after proclamation and with only two months before the election date, and that if the challenge related to section 17(1) of the Electoral Act (in effect since 1998), it should have been brought between elections rather than disrupting election preparations. (2) The court commented on the principle of constitutional subsidiarity, noting that if the Foundation wished to challenge something done under the Electoral Act, it should have challenged the Act itself rather than the conduct pursuant to it. (3) The court observed that the Foundation appeared to conflate two separate processes: the election by voters and the subsequent election of the President by the National Assembly. (4) The court noted that Mr Yame's failure to appear at the hearing was "less than ideal" even if he believed he had nothing to add beyond written submissions, as it prevented him from responding to court queries or opposing arguments. (5) The court emphasized that voters and litigants should understand the Oudekraal principle that executive conduct remains valid until set aside by a competent court.

This case clarifies the boundaries of the Electoral Court's jurisdiction and the exclusive jurisdiction of the Constitutional Court under section 167(4)(e). It establishes that challenges to whether the President has fulfilled constitutional obligations in proclaiming elections must be brought before the Constitutional Court, not the Electoral Court, even though the matter involves electoral issues. The judgment reinforces the narrow but important scope of section 167(4)(e) and distinguishes it from the general power of high courts to review constitutional validity of executive conduct under section 172. The case also reaffirms the Oudekraal principle that executive decisions remain valid until set aside by a competent court. This is significant for electoral jurisprudence as it provides clarity on forum selection for challenges to election proclamations and protects the electoral process from disruption by applications brought in courts without proper jurisdiction.