Zoleka Mketsu & Others v African National Congress & Others

Five applications were launched on 19 December 2000, 14 days after local government elections held on 5 December 2000 in the Eastern Cape. The appellants were ANC members who alleged that the party's candidate selection process for proportional representation elections and ward elections was flawed due to non-compliance with procedures in the ANC Campaign Manual. Three applications related to proportional representation elections to municipal councils, and two related to ward elections. The appellants claimed they would have been selected and elected as councillors had proper procedures been followed. The ANC submitted its party lists and ward nominations to the Electoral Commission by 19 October 2000, which certified the lists by 30 October 2000. Elections proceeded on 5 December 2000 and results were declared. The appellants brought their challenges directly to the High Court without following the objection procedure set out in section 65 of the Local Government: Municipal Electoral Act 27 of 2000.

• Whether the High Court had jurisdiction to entertain objections concerning aspects of an election material to the declared result
• Whether the procedure set out in section 65 of the Local Government: Municipal Electoral Act 27 of 2000 was mandatory or permissive
• Whether the appellants' objections concerning candidate selection processes fell within 'any aspect of an election that is material to the declared result' under section 65
• Whether the Electoral Court's jurisdiction under section 78 of the Municipal Electoral Act was exclusive or concurrent with the High Court's inherent jurisdiction

The appeal was dismissed with costs, including costs for two counsel. The High Court's decision upholding the lack of jurisdiction objection was confirmed.

The procedure set out in section 65 of the Local Government: Municipal Electoral Act 27 of 2000 for objections concerning any aspect of an election that is material to the declared result is mandatory, not permissive. The High Court does not have inherent jurisdiction to entertain such objections. The Electoral Commission and Electoral Court have exclusive jurisdiction over objections material to declared election results. The word 'may' in section 65(1) does not confer a choice of forum but merely indicates that interested parties are not compelled to object against their will. The expression 'any aspect of an election that is material to the declared result' is wide enough to encompass objections to candidate selection processes where the relief sought would unseat elected councillors. The strict time limits in section 65 demonstrate Parliament's intention for expeditious resolution and would be rendered meaningless if parallel High Court jurisdiction existed.

The Court observed that section 78 of the Municipal Electoral Act, dealing with electoral disputes and Code infringements, contemplates matters typically arising during the 'run-up to the election' that would ordinarily be determined prior to the election, rather than matters affecting declared results. The Court noted that while the ousting of High Court jurisdiction should not be lightly inferred, the Electoral Court enjoys the status of the High Court with three of its five members being judges (including one from the Supreme Court of Appeal), which mitigates concerns about limiting access to justice. The Court assumed without deciding that the Electoral Court's determination of 4 December 1998, made under the Electoral Act 73 of 1998 in relation to national and provincial elections, was applicable to municipal council elections. The Court observed that section 55 of the Electoral Act 1998 (the equivalent provision for national and provincial elections) uses different wording that permits no doubt that the procedure is mandatory.

This case is significant in South African election law as it definitively establishes that the High Court does not have inherent jurisdiction to entertain objections concerning aspects of municipal elections that are material to declared results. It clarifies the mandatory nature of the section 65 procedure under the Local Government: Municipal Electoral Act 27 of 2000, requiring such objections to be brought first to the Electoral Commission and then on appeal to the Electoral Court. The judgment establishes the exclusive jurisdiction of the Electoral Court (subject to its power to designate other courts) in election matters, marking an important limitation on the High Court's inherent jurisdiction. The case provides important guidance on the interpretation of election legislation and the need for expeditious resolution of post-election disputes that could affect declared results. It also clarifies the distinction between objections material to declared results (section 65) and other electoral disputes and Code infringements (section 78).