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

The Giving Foundation NPC ("the Foundation") brought two applications (second and third applications) following the dismissal of its first application (case 0018/2024EC) which sought to set aside the Proclamation of National and Provincial Elections dated 23 February 2024. The Foundation argued that the Proclamation was unconstitutional because it proclaimed one election day (29 May 2024) whereas section 49(2) of the Constitution required "days" to be proclaimed. The first application was dismissed on the basis that the Constitutional Court has exclusive jurisdiction to determine whether the President failed to fulfil a constitutional obligation. The second application (0026/2024EC), filed on 21 May 2024, sought declarations that the Electoral Commission's conduct was unconstitutional and that voting on dates not proclaimed (international voting on 17-18 May) was invalid. The third application (0026A/2024EC), filed on 28 May 2024 as an urgent application, sought similar relief relating to special voting on 27-28 May 2024, and also joined the Judicial Services Commission and Political Liaison Committee as respondents. Both applications were brought after the electoral timetable was gazetted on 24 February 2024, which included provision for voting at foreign missions on 17-18 May and special votes on 27-28 May 2024. The Foundation did not challenge the Electoral Act 73 of 1998 or the Election Regulations, which explicitly provided for special voting on days different from the proclaimed election day.

• Whether the applications were brought urgently and within the prescribed time periods
• Whether the Electoral Court had jurisdiction to determine the validity of the Presidential Proclamation
• Whether the applications were res judicata or otherwise incompetent given the dismissal of the first application on jurisdictional grounds
• Whether the Foundation could challenge the constitutionality of the Electoral Commission's conduct without challenging the constitutionality of the Electoral Act itself (principle of constitutional subsidiarity)
• Whether the election of office-bearers within legislatures falls within the purview of the Electoral Commission and the jurisdiction of the Electoral Court
• Whether there was non-joinder of necessary parties (the President and Provincial Premiers)
• Whether a costs order should be made contrary to the usual practice of the Electoral Court

Both applications (0026/2024EC and 0026A/2024EC) were dismissed with costs.

The binding legal principles established are: 1. Elections of legislative bodies managed by the Electoral Commission under section 190(1)(a) of the Constitution are constitutionally, conceptually and factually distinct from the election of office-bearers within legislatures in terms of Schedule 3 of the Constitution. The latter falls outside the Electoral Commission's purview and the Electoral Court's jurisdiction. 2. The principle of constitutional subsidiarity applies in electoral matters: a party cannot challenge the constitutionality of conduct that is authorized by and consistent with a statute without first challenging the constitutionality of that statute itself. 3. Once the Electoral Court has determined it lacks jurisdiction over a particular issue, subsequent applications seeking substantially the same relief based on the same cause of action (even if formulated differently) are incompetent and cannot be entertained by the Court. 4. Special voting provisions in the Electoral Act and Regulations that permit voting on days other than the proclaimed election day do not render such voting unconstitutional or invalid, provided the electoral timetable properly designates such dates. 5. Applications brought months after the publication of electoral proclamations and timetables, seeking to invalidate voting days specified in those instruments, cannot be treated as urgent merely because filed shortly before or after such voting takes place.

The Court made several non-binding observations: 1. The Court noted that if the Foundation wished to challenge the constitutional validity of the electoral system given substance by the Electoral Act, this would have to be done in the correct forum (presumably the High Court with confirmation by the Constitutional Court), against the correct parties (Parliament, not the Electoral Commission which merely implements the law), and with sufficient time for any Constitutional Court confirmation and for Parliament to enact necessary changes. 2. Regarding section 178(5) of the Constitution (relied upon for relief concerning the JSC), the Court observed this provision has the function of facilitating oversight of the executive and legislative arms over the judiciary to help preserve judicial independence. Where there is no intimation the judiciary is acting other than in accordance with the Constitution, it is unclear what "engagement" the Foundation sought or what outcome was desired. 3. The Court expressed concern that the Foundation's applications were brought in an "ill-considered and under-informed way" and that the Foundation had "stretched the thin resources of both this court and the Commission at a time when they ought properly to be seized with more substantive issues." 4. The Court noted as an aggravating factor that the Foundation failed to file replying papers or written argument, demonstrating a lack of engagement with the legal process. 5. The Court observed that the Foundation's relief suffered from vagueness in certain respects (such as the order sought regarding JSC "engagement") such that no proper order could be made even if there were a legal foundation for it.

This case is significant in South African electoral law for several reasons: 1. It reinforces the Constitutional Court's exclusive jurisdiction over challenges to presidential constitutional obligations, including the proclamation of elections. 2. It clarifies the important conceptual and constitutional distinction between elections of legislative bodies (managed by the Electoral Commission under section 190) and the election of office-bearers within those legislatures (governed by Schedule 3 of the Constitution). These are separate processes with different constitutional provisions and responsible bodies. 3. It emphasizes the principle of constitutional subsidiarity in the electoral context - parties cannot challenge conduct authorized by statute by direct constitutional challenge without first challenging the constitutionality of the enabling statute itself. 4. It demonstrates the Electoral Court's willingness to depart from its usual practice of not awarding costs where applications are vexatious, frivolous, or demonstrate willful disregard for previous court pronouncements and waste limited judicial and administrative resources during critical election periods. 5. It confirms that special voting provisions in the Electoral Act and Regulations are constitutionally valid mechanisms for facilitating electoral participation on days other than the proclaimed election day. 6. It underscores procedural requirements including urgency, time limits for review applications, and proper joinder of parties whose conduct is challenged.