Umkhonto WeSizwe Party v Electoral Commission of South Africa and Others

The Umkhonto WeSizwe Party (MK Party) launched a main application challenging the 29 May 2024 national and provincial elections (NPE2024), alleging they were not free and fair as required by s 19(3) of the Constitution. The main challenge was based on a system crash that occurred on 31 May 2024 between 06h00-09h00, when the Electoral Commission's results leaderboards and online dashboards displayed zero results for all political parties. The MK Party delivered a Rule 35(12) notice on 25 November 2024 requesting various documents and data relating to the results systems during the "downtime period". The Commission responded on 29 November 2024 stating it had provided documents to the extent they existed and were capable of reproduction. The Commission had provided access via a WeTransfer link (sent 12 July 2024 and resent 28 August 2024) containing files in compressed 'tar.zst' format, as well as VPN party accounts to access the 2024 NPE Virtual NROC. On 7 April 2025, the MK Party launched an application to compel compliance with the Rule 35(12) notice, alleging it could not access the compressed files and that VPN accounts had been deactivated.

• Whether the Electoral Commission failed to comply with the MK Party's Rule 35(12) notice requiring production of documents
• Whether substantial compliance with a Rule 35(12) notice is sufficient where documents exist and are capable of reproduction
• Whether a party requesting documents under Rule 35(12) has an obligation to inform the producing party of technical difficulties in accessing provided information
• Whether an order compelling compliance, striking out a defence, or granting alternative relief under Rule 30A is appropriate in the circumstances
• Whether a request for computer algorithms not included in the original Rule 35(12) notice can validly ground an application to compel

The application to compel compliance with the Rule 35(12) notice dated 25 November 2024 was dismissed. Costs were reserved for determination in the main application. Paragraphs 8-10 of the MK Party's founding affidavit were struck out.

A party seeking to compel compliance with a Rule 35(12) notice must establish actual non-compliance with the notice. Where a respondent has provided substantial compliance by furnishing all requested documents and recordings that exist and are capable of reproduction, an application to compel will fail. A party requesting documents has an obligation to inform the producing party if it cannot access provided information and to exercise reasonable options available to access that information (such as obtaining appropriate software, requesting alternative formats, or physically inspecting documents) before alleging non-compliance. A request for materials not included in the original Rule 35(12) notice (such as computer algorithms) cannot validly ground an application to compel compliance with that notice. When determining compliance with court rules under Rule 30A(1), the court conducts an objective inquiry without discretion—it must find non-compliance only if supported by facts and/or law.

The Court made observations about the conduct of parties in electoral litigation, noting that scandalous, vague allegations designed to tarnish the reputation and credibility of constitutional institutions and their office-bearers are inappropriate and should be struck out. The Court commented that allegations that the Chief Electoral Officer was "mystifying" systems, "concealing information", and lacking transparency were baseless and atmospheric, particularly where the Commission had provided audit reports from Deloitte confirming its version and confirmatory affidavits from technical staff. The Court also noted that issues relating to the merits of the Commission's technical explanations, audit findings, and expert evidence would be determined in the main application and should not be construed as accepted at the interlocutory stage.

This judgment provides important guidance on the requirements for establishing non-compliance with Rule 35(12) notices in South African electoral litigation. It clarifies that substantial compliance with document production requests is sufficient where documents exist and are capable of reproduction. The judgment emphasizes that parties requesting documents have reciprocal obligations to inform producing parties of access difficulties and to exercise reasonable efforts to access provided information through available means. It also confirms that Rule 30A applications to compel must be based on actual non-compliance and cannot be used for "goal-shifting" to obtain materials not originally requested. The case highlights the importance of procedural propriety and good faith in electoral disputes, particularly regarding transparency and accountability in election administration. The judgment also reinforces standards against scandalous and baseless allegations that may unjustifiably damage the reputation of constitutional bodies and their office-bearers.