Tsogang Civic Movement v Electoral Commission of South Africa and Others

The applicant (Tsogang Civic Movement) applied to the Electoral Commission in November 2022 to be registered as a political party in order to contest by-elections scheduled for 14 December 2022 in Ditsobotla Local Municipality. On 1 November 2022, the applicant submitted its notice of application for publication to the Government Printing Works. However, the notice was only published on 18 November 2022 due to unexplained delays by the Government Printing Works. The applicant submitted proof of publication to the CEO on 21 November 2022 and demanded the issuance of a registration certificate on the same date. The cut-off date for submission of candidate lists was 21 November 2022 at 17h00. The CEO refused to issue the registration certificate, advising that section 16(1) of the Electoral Commission Act required that 14 days must elapse from the date of publication before a certificate could be issued. The earliest possible registration date would have been 6 December 2022, which fell outside the cut-off date for candidate list submission. The applicant brought an urgent review application to set aside the Commission's decision and alternatively sought postponement of the by-elections.

• Whether the Electoral Commission was obliged to issue a registration certificate to the applicant before the statutory 14-day waiting period had elapsed
• Whether the Commission could be held vicariously responsible for delays caused by the Government Printing Works
• Whether the Commission's refusal to issue a registration certificate was lawful, reasonable and rational
• Whether the by-elections should be postponed to enable the applicant to participate

The application was dismissed with no order as to costs.

The CEO of the Electoral Commission has no discretion and may not register a political party before the peremptory statutory requirements are met. Section 16(1) of the Electoral Commission Act read with Regulation 2 of the Regulations for the Registration of Political Parties 2004 mandates that 14 days must elapse from the date proof of publication is submitted to the CEO before a registration certificate can be issued. This requirement is peremptory and not discretionary. The Electoral Commission cannot be held vicariously responsible for delays caused by other state entities (such as the Government Printing Works) in the absence of a legal basis for such responsibility. A party seeking postponement of elections must join all other contestants who would be directly affected by such postponement or at minimum provide them with notice of such relief being sought.

The Court observed that the reason for the 14-day waiting period is to allow the public an opportunity to peruse the intended application for registration and to object thereto if necessary. This serves the important democratic function of transparency and public participation in the electoral process. The Court also noted that there was no evidence to support the applicant's allegations that the Commission acted unfairly and irrationally to prejudice the applicant, implicitly affirming the Commission's good faith in the matter.

This case confirms the strict application of peremptory statutory timeframes in electoral legislation and upholds the principle that the Electoral Commission must act in accordance with the law without exercising discretion where none exists. It reinforces that electoral bodies cannot be held vicariously liable for administrative delays caused by other state organs where there is no legal basis for such liability. The case also demonstrates the importance of proper joinder of affected parties in electoral matters, particularly where postponement of elections is sought. It emphasizes that political parties bear the responsibility for ensuring timely compliance with electoral registration requirements and cannot rely on administrative delays by third parties to override peremptory statutory provisions.