IN THE ELECTORAL COURT OF SOUTH AFRICA
HELD AT BLOEMFONTEIN
Case No: 006/2021/EC

In the matter between:

Action SA

APPLICANT

and

THE ELECTORAL COMMISSION
OF SOUTH AFRICA

RESPONDENT

Neutral Citation: Action SA v The Electoral Commission of South Africa (Case no 006/2021
EC) [2022] ZAEC 2 (18 January 2022)

Coram: Mbha JA, Shongwe AJ, Moshidi AJ and Ms Pather, member

Summary: Local Government Elections (LGE); preparation of the ballot papers
by the Electoral Commission – whether to include the Political Party’s name; or
abbreviated name; political party not having chosen and registered an abbreviated
name on initial registration in terms of s 15 of the Electoral Commission Act 51
DELETE WHICHEVER IS NOT APPLICABLE

(1)
REPORTABLE: Yes
(2)
OF INTEREST TO OTHER JUDGES: Yes
(3)
REVISED: Yes

_________________

________________________
DATE

SIGNATURE

of 1996 (Commission Act); the proper interpretation and meaning of the
provisions of s 23 of the Local Government: Municipal Electoral Act 27 of 2000
as amended, (Municipal Act) read with the provisions of ss 19 and 190 of the
Constitution; the duties, functions and objects of the Electoral Commission as
defined in s 5 of the Commission Act; and s 23 of the Municipal Act in preparing
the ballot papers for elections. Applicant’s application dismissed with no order as
to costs.

JUDGMENT

Moshidi AJ (Mbha JA, Ms Pather member, concurring):

Introduction
[1] This matter was heard on accepted urgent basis by this Court on Thursday
21 October 2021. The matter pertinently raises and brings into complete focus,
the statutory and constitutional role, obligations and functions of the Independent
Electoral Commission (IEC), where necessary, in relation to registered political
parties, and now the increasing phenomenon of individual or independent
candidates and newly registered political parties.

Order issued
[2] At the conclusion of the hearing the Court (majority) made the following
order:
1. The application is dismissed;
2. There is no order as to costs;
3. The reasons will follow in due course.

The reasons for judgment

[3] What follows hereafter are the reasons for the above order. The applicant
is ActionSA, a political party formed recently in 2020 and duly registered and
headed by Mr. Herman Mashaba, a former mayor of Johannesburg. The Electoral
Commission of South Africa (the Commission) is the only respondent in these
proceedings.

The registration of the applicant
[4] The registration of the applicant as a political party was effected by the
respondent in terms of the provisions of s 15 of the Electoral Commission Act 51
of 1996 (the Commission Act) as well as the Regulations framed thereunder, and
more significantly, by completing the requisite form in terms of s 15 (1) of the
Commission Act, read with the Regulations for the Registration of Political
Parties, 2004 (the Regulations). In the context of the present matter, it is
instructive to revert later to the above and other statutory provisions, as well as
certain applicable provisions of the Constitution of the Republic of South Africa
Act 108 of 1996 (The Constitution). Indeed, this matter also brings into direct
focus at least two important aspects involving elections. Those are firstly, the
manner in which the Commission exercises its powers in terms of the various
statutory provisions applicable in elections. Secondly, and on the other hand, the
Commission’s constitutional obligations in the exercise of powers, functions and
duties, with regards to ss 19 and 190 of the Constitution. More about this later.
The Commission is a statutory body established by s 3 of the Commission Act.

The objects, powers and duties of the Commission
[5] Indeed, the objects, powers, duties and functions of the Commission, in
terms of ss 4 and 5 of the Commission Act, properly interpreted, play an important
role in the present matter, as described by the Constitutional Court and other High

Courts in several case law in our developing democracy. For present purposes,
and reasons of brevity, the preamble to the Commission Act, provides that it
‘makes provision for the establishment and composition of an Electoral
Commission to manage elections for national, provincial and local legislative
bodies and referenda; and to make provision for the establishment and
composition and the powers, duties and functions of an Electoral Court; and
provide for matters in connection therewith’.1 In the same breath, s 3 of the
Electoral Commission Act, in establishing the Commission, provides that it shall
be independent and subject only to the Constitution and the law.2 (Emphasis
added.)

The applicant’s complaint
[6] I must hasten to set out as fully as I possibly can, the nature of the
applicant’s complaint and case in the present matter. This as contains in the
founding papers as amended; the replying papers; the heads of argument; and the
arguments advanced at the hearing. In the process, I shall not derogate from the
substance of the applicant’s contentions, by any means.

The salient complaint
[7] If cut to the bone, the applicant’s assertions come to this:3 The deponent to
the founding affidavit, Mr. Michael Eric Beaumont, the National Chairperson of
the applicant (Mr Beaumont), asserts that: (Some of the allegations are common
cause) the applicant seeks to review the decision of the Commission to refuse to
include the applicant’s name on the ward ballot paper for the 2021 local
government elections (LGE 2021) to be held on 1 November 2021 (LGE 2021);
the Commission’s reason for the refusal which is that the ballot only allows for

1 See Preamble of the Electoral Commission Act.
2 See applicant’s complaint – p 116, para 71.
3 See FA and Heads of Argument, the exchanged correspondence, and alleged newspaper outbursts.

abbreviated names (abbreviations for the name of political parties), and that since
the applicant does not have an abbreviation, its name could not be included on
the ballot paper, was incorrect and wrong.

The Commission’s response and some common cause facts
[8] It is common cause that: the original notice of motion was amended,
subsequently without any objection, that the matter was urgent, that the applicant,
in the amended notice of motion, specifically alleged, and re-emphasised that, the
decision of the Commission to exclude its name from the LGE 2021 ward ballot
paper is unconstitutional and unlawful; that the determination of the ballot paper
under s 23 of the Local Government: Municipal Electoral Act 27 of 2000 (the
Municipal Act), as amended, to include only a registered abbreviation is
unlawful; that the eight letter name of a political party, (like that of the applicant),
are to be read in next to the word ‘abbreviation’ on the ‘ballot paper’; that the
Commission to immediately include the name of the applicant on the LGE 2021
ward ballot paper; that the Commission, in those wards where the ward ballot
papers have been published without the name of the applicant, to destroy all
copies of same, and re-issue and/or reprint such ward ballot papers, including the
full name of the applicant; that the Commission print stickers bearing the name
‘ActionSA’, and distribute the stickers to polling stations (stations) to be affixed
in the relevant blank space on each ward ballot paper that is handed to voters by
polling officials, or the Commission produce rubber stamps bearing the name of
‘ActionSA’ and distribute the stamps to stations to be stamped in the relevant
blank space on each ballot paper that is handed to the voters by the station
officials; and finally, that the Commission pay the costs of this application.4

4 See amended Notice of Motion, p7, paras 5 and 6.

The Commission’s contentions
[9] In the answering papers, supported by various annexures, and the heads of
argument, and closing arguments, the Commission denied vehemently the
applicant’s assertions as entirely contrived and self-created, in several respects.
The denial has to be summarised.5

[10] In the first place, the Commission contends that, it exercised its powers
under s 23 of the Municipal Act, as amended, and in compliance with the
stipulated requirements and processes involved in the registration of political
parties. If ActionSA wanted to submit their abbreviated name for registration,
they were obliged to have done so at registration point. Any amendments could
only be made by the applicant in terms of s 16 (A) of the Commission Act.6 If the
applicant had submitted its abbreviated name, it would have been included. The
Commission therefore contends that, the reason the abbreviated name was
excluded by the Commission is not because of malice on its part, but simply
because the applicant elected consciously, not to register an abbreviated name.
The Commission further asserts that the reason why the applicant does not have
a registered abbreviated name or acronym has nothing to do with the Commission
but a self-created problem by the applicant.7 Further that, the Commission, has
included all the names of the political parties who submitted their abbreviated
names in the ballot paper. However, the applicant and other parties opted not to
do so voluntarily.8

5 See AA, pp 89 – 187.
6 See provision section 16 A of Commission Act.
7 See AA, p 91, para 6 – consolidated bundle.
8 See AA, p 91, para 6 - consolidated bundle.

[11] In addition, the Commission contends in the answering papers that, the
relief sought by the applicant is untenable as there are 13 other political parties,
who are in the same position as the applicant. Twelve of the thirteen parties have
names that are more than the required eight characters long. Neither the Court nor
the Commission can abbreviate unilaterally the names of those political parties
for them. If they were to choose to have abbreviated names or acronyms, they
will have to follow the stipulated registration process and be subject to the normal
objection process. Significantly, none of the other 13 political parties have been
joined in the present proceedings. More about this later below.

The essence of the applicant’s complaint
[12] It is common cause that the applicant’s main gripe is the exclusion of its
name from the LGE 2021 ballot papers. In particular, in paragraph five of the
amended notice of motion, the applicant seeks an order compelling the
Commission to, in those wards where the ward ballot have been published
without the name of the applicant, destroy all copies of same, and issue and/or
reprint such ward ballot papers, including the full name of the applicant .9 The
Commission counters the suggested remedy by pointing out that, there are two
ballot paper types to be used in the LGE 2021. The first is a ward ballot paper
where the applicant’s ward candidate’s name appears together with the
applicant’s registered distinguishing mark or symbol (logo), but without an
abbreviated name or acronym, as none was registered. The second ballot paper is
the Proportional Representation (PR) ballot paper where applicant’s name
appears together with its logo, but without an abbreviated name or acronym, as
the applicant had not registered one. In the replying papers, the applicant,
however, does clarify its proposed remedy. It contends that the reason it is seeking
an order compelling the Commission to reprint only the ward ballot papers is

9 See amended Notice of Motion, para 5 (2), p7 – bundle.

because, unlike the ward ballot papers, the PR ballot papers have at least its name
on it.10

The Commission’s specific response
[13] The Commission in response to the applicant’s claim to seek review, that
is, the declaration of invalidity and setting aside the Commission’s decision to
exclude the applicant’s name from the LGE 2021 ballot papers, advances various
grounds why the application should be refused by this Court. These include that,
the present application is an abuse of court processes; that the relief sought is not
just and equitable; the relief sought is confusing; the relief sought is impracticable
under present circumstances; the relief sought will impact negatively on the
majority of other political parties; and that the relief sought ignores completely
the context in which the Commission operates.11 Various reasons are advanced
by the Commission for its assertions which is unnecessary to recall wholly for
present purposes, in particular in the nature of the applicant’s case. In addition,
the Commission makes the rather compelling assertion that, in deciding to
exclude the applicant’s name from the LGE 2021, it exercised correctly and
properly its powers in determining the design of the ballot papers in terms of s 23
of the Municipal Act. In doing so, it determined to use political parties ‘registered
abbreviated names or acronyms in a section of the ballot papers’. As a factual
consequence of the applicant not having a registered abbreviation or acronym,
the space on the ballot papers where its registered abbreviation or acronym would
have been inserted, is left blank. As mentioned elsewhere in this judgment, the
Commission asserts that neither this Court nor the Commission unilaterally can
select for the applicant an abbreviation or acronym. This is incontrovertible. This

10 See the Commission’s specific response, p 32 para 13 and RA, para 70 of 209 – bundle.
11 See AA, pp 91 to 130 – consolidated bundle.

would attract unfairness. For present purposes, I have deliberately, elected not to
deal with the Commission’s assertions dealing with, ‘Mr. Mashaba’s unfortunate
public outbursts against the Commission’.12 It is irrelevant. However, in the
replying papers, the applicant contends that the said press statements were of
public interest and of events that have taken place.13 The fact of matter, in my
view, remains that the press outbursts are irrelevant, and unhelpful in resolving
constructively the impasse between the parties.

The crisp issue for determination
[14] The crisp, narrow and pertinent issue to be decided in this matter is this:
whether the Commission in deciding to exclude the name of the applicant from
the ward ballot papers for the LGE 2021, was correct, it being common cause
that: on original registration, the applicant did not register an abbreviated name
or acronym; on realising that its name was not on the published ballot papers, the
applicant duly lodged objections on various levels, which objections were
rejected by the Commission.

[15] There are indeed several sections of the Commission Act, all in elaboration
of the preamble, which come into play in this application. The main one is s 3
which establishes the Commission, and that it must be independent and subject
only to the Constitution and the law. Further that the Commission shall be
impartial and shall exercise its powers and perform its functions without fear,
favour or prejudice. In addition, and relevant and important here, is that the
objects of the Commission are to strengthen constitutional democracy and
promote democratic electoral processes.14 More relevant here, are the provisions
of s 5 of the Commission Act which set out the powers, duties, and functions of

12 See AA, p 194, para 14 – consolidated bundle.
13 See RA, p 207, para 63 - bundle.
14 See chapter 2, sections 3 and 4 of Commission Act.

the Commission. In this matter, the Commission has been severely criticized for
not performing its powers correctly, but unfairly, narrowly, dogmatically,
improperly, and even unconstitutionally. Sections 3 and 4 and 5, in chapter 2 of
the Commission Act, provide as follows:15
‘3. Establishment of Commission.
(1) There is an Electoral Commission for the Republic, which is independent and subject only
to the Constitution and the law.
(2) The Commission shall be impartial and shall exercise its powers and perform its sanctions
without fear, favour or prejudice.
4. Objects of Commission.
The objects of the Commission are to strengthen constitutional democracy and promote
democratic electoral processes.
5. Powers, duties and functions of Commission.
(1) The functions of the Commission include to-

(a) manage any election;
(b) ensure that any election is free and fair;
(c) promote conditions conducive to free and fair elections;
(d) promote knowledge of sound democratic electoral processes;
(e) compile and maintain voters’ rolls by means of a system of registering of eligible
voters by utilising data available from government sources and information
furnished by voters;
(f) compile and maintain a register of parties;
(g) establish and maintain liaison and co-operation with parties;
(h) undertake and promote research into electoral matters;
(i) develop and promote the development of electoral expertise and technology in all
spheres of government;
(j) continuously review electoral legislation and proposed electoral legislation, and to
make recommendations in connection therewith;
(k) promote voter education;
(l) promote co-operation with and between persons, institutions, governments and
administrations for the achievement of its objects;

15 See section 5 of Commission Act and see later section 23 of the Municipal Act.

(m) ……

(n) declare the results of elections for national, provincial and municipal legislative
bodies within seven days after such elections;
(o) adjudicate disputes which may arise from the organisation, administration or
conducting of elections and which are of an administrative nature; and
(p) appoint appropriate public administrations in any sphere of government to conduct
elections when necessary.
(2) The Commission shall, for the purposes of the achievement of its objects and the
performance of its functions –

(a) acquire the necessary staff, whether by employment, secondment, appointment on
contract or otherwise;

(b) establish and maintain the necessary facilities for collecting and disseminating
information regarding electoral matters;

(c) co-operate with educational or other bodies or institutions with a view to the
provision of instruction to or the training of persons in electoral and related matters;
and

(d) generally, perform any act that is necessary for or conducive to that.’

[16] It is clear from the provisions of s 5 above, and for what is relevant here,
that the Commission’s powers, duties, and functions include, the management of
any election; ensure that any election is free and fair; promote conditions
conducive to free and fair elections; promote knowledge of sound and democratic
electoral processes: compile and maintain a register of parties; establish and
maintain liaison and co-operation with parties; undertake and promote research
into electoral matters; and develop and promote the development of electoral
expertise and technology in all spheres of government. To the extent necessary,
the above provisions are applicable since the Commission has been variously
accused of having treated the applicant unfairly, unjustifiably, unreasonably, and
indeed unconstitutionally, when it excluded the applicant’s name from the ballot
paper.

[17] Equally plain from the provisions of ss 15, 15 A and 16 of the Commission
Act, referred to above, is that whilst s 15 deals with the registration of political
parties, and the requirements of such registration, s 15 A deals with the
registration of political parties for municipal elections, and s 16(1) gives the chief
electoral officer the power not to register a party in terms of s 15 or 15 A under
certain circumstances. These circumstances include the failure of the applicant
to, before a period of 14 days has elapsed, after the submission of the registration,
provide proof of publication of the prescribed notice of application in the Gazette,
in the case of an application referred to in s 15 or in a newspaper circulating in
the municipal area concerned in the case of an application referred to in s 15 A;
and the proposed name, abbreviated name, distinguishing mark or symbol
mentioned in the application resembles the name, abbreviated name,
distinguishing mark or symbol, as the case may be, of any other registered party
to such an extent that it may deceive or confuse voters.

[18] Rather significantly in the context of the present matter, the registration of
a political party under s 15, commands (instructs) the Commission, on application
for registration to effect such registration presented on the prescribed form, on
condition certain items (information) are provided. The information includes the
name of the party; the distinguishing name or symbol of the party in colour, and
the abbreviation, if any, of the name of the party consisting of not more than eight
letters. Once these and others have been complied with, the chief electoral officer
is obliged to issue that party with a registration certificate, in the prescribed form
and publish the prescribed particulars of such registration in the Gazette. Such
party must also be registered in respect of a particular municipality.16 It is not in
dispute that ss 15 and 15 A of the Commission Act were applicable in respect of
the registration of political parties for elections. However, s 15 A was only

16 See section 15 A (1) of the Commission Act.

repealed with effect from 27 August 2021. In other words, s 15 A was still
applicable in respect of political parties who applied for registration before 27
August 2021. It is not in dispute that the applicant only registered in 2019/2020
as a political party.

Section 23 of the Municipal Act
[19] In addition to the above statutory and electoral provisions, the Municipal
Act also finds application in the present matter. The primary object of the
Municipal Act, as described in the preamble, is to regulate municipal elections,
whilst s 3 thereof provides that it applies to all municipal elections held after the
date determined in terms of s 93 (3) of the Local Government: Municipal
Structures Act 117 of 1998 (Structures Act).

[20] In its amended founding papers, the applicant alleges inter alia, that the
Commission in determining the ballot paper design under s 23 of the Municipal
Act to include only a registered abbreviation, acted unlawfully, and that the words
‘eight (8) letter name of political party’ are to be read in next to the word
‘abbreviation’ on the 2021 ‘ward ballot paper’.

The exercise of Commission’s powers under section 23
[21] In addition, the applicant complains that the Commission, in the exercise
of its powers under s 23 of the Municipal Act, was too rigid and inflexible,
thereby infringing on the rights of the applicant or its members and renders the
conduct of the LGE 2021 in the affected municipalities to be not free and fair,
and places form over substance.

[22] The applicant is challenging both the Commission’s exercise of powers
under s 23 of the Municipal Act, and its interpretation thereof. The basis of the

challenge is vague and generalised. In this regard, the applicant alleges that the
exercise of power is unlawful as the ballot paper makes provision for only a
registered abbreviated name whilst the Act does not require a political party to
register an abbreviated name. However, as mentioned before, the Commission
rejects out of hand the contentions of the applicant as being completely bereft of
merit and misguided.

The provisions of section 23
[23] Section 23 of the Municipal Act provides that: ‘The Commission must
determine the design of the ballot paper or ballot papers to be used in an
election’.17 Section 1 of the Act proceeds to define the word ‘ballot’, ‘in relation
to- (a) an election where a voter in terms of item 8 (1) or 9 (2) of Schedule 1 or
item 3 (a) of Schedule 2 to the Structures Act is entitled to cast one vote only,
means a ballot conducted at a voting station to enable voters to cast that vote in
the election; or (b) an election where a voter in terms of item 9 (1) of Schedule 1
or item 3 (b) of Schedule 2 to the Structures Act is entitled to cast more than one
vote, means each of the separate ballots conducted at a voting station to enable
voters to cast those votes in the election.’18. It is interesting that the Concise
Oxford Dictionary defines the word ‘ballot’ as a procedure by which people ‘vote
secretly on an issue’. The word ‘design’ is defined as ‘a plan or drawing produced
to show the look and function or workings of something before it is built or made’.

[24] From the above provisions of s 23, it is plain that the Commission has the
requisite power, and is in fact, obliged to determine the design of the ballot paper
or ballot papers for use in an election. No one else has such power, and clearly
two types of ballot papers are envisaged. There are clearly no other restrictions,
directions, conditions or guidelines, or discretionary instructions accompanying

17 See section 23, part 5 – voting material.
18 See section 1, under chapter 1 of Act.

the Commission’s exercise of its powers in this regard. This, for obvious reasons
too. One of these is that the Commission may not, in the exercise of its powers to
design the ballot paper or ballot papers, consult any of the registered political
parties privately, or independently on its own initiative, as to how to design the
ballot paper or papers. Admittedly, there are numerous other political parties
involved here, not cited in this application. In any event, such eventuality would,
undoubtedly, violate the trite principles of natural justice principle of audi
alteram partem (hear the other side).

The instances where the Commission’s powers are challenged
[25] Indeed, there are numerous instances where the exercise of the
Commission’s powers, duties and functions were called into question. These
include circumstances of act/s of omission. For example, in Electoral
Commission v Inkatha Freedom Party19 the facts were briefly as follows: the
Inkatha Freedom Party (respondent), wished to take part in the May 2011 local
government elections that were due to be held country wide. It accordingly set
about complying with all the formalities prescribed by ss 14 (4) and 17 of the
Municipal Act and the Local Government Electoral Act. However, it centralised
its preparation at its Durban office. In terms of the election timetable promulgated
by the Commission (applicant), the necessary documents were to be lodged at the
local offices of the applicant by 17h00 on 25 March 2011. All the respondent’s
sets of documents were made up into batches for delivery at the various offices
of the applicant. Regrettably, the respondent missed the deadline for various
logistical reasons, and further unfortunately, the documents for the Umzumbe
(Umzumbe) local government election were sent up to Gauteng in error. All the
requests made by the respondent to the applicant to accept the documentation
later, were turned down. Litigation ensued in the Electoral Court. The latter Court

19 See [2011] ZACC 16; 2011 (9) BCLR 943 (CC).

issued an order setting aside the applicant’s decision, and ordering the applicant
to allow the respondent to forthwith file all its relevant documentation with
applicant: put the respondent’s name on the list of registered parties entitled to
contest the Umzumbe local government elections; place the names of the
respondent’s candidates for the various wards on the final list of candidates of the
Umzumbe local government elections; and ensure that all ballot papers were
prepared in accordance with the Court’s decision. The applicant in that case, the
Commission, thereafter applied for leave to appeal directly to the Constitutional
Court which was granted, and the Electoral Court’s judgment was upheld
subsequently.

[26] What is of importance and of relevance for current purposes is what Chief
Justice Ngcobo, writing for the Court, said in the course of the judgment. At
paragraph 25 of the judgment he said the following: ‘Reduced to its essence, the
debate between the parties turns upon the interrelated questions. The first is
whether the present case is distinguishable from ACDP. The Electoral Court held,
and the IFP maintains, that it is not. However, the Commission asserts it is. The
second question, the answer to which depends upon the answer to the first, is
whether submitting at the Durban office of the Commission instead of at its
Umzumbe office constitutes compliance with the filing requirements of ss 14 and
17 of the Act, read in the light of their legislative purpose. The IFP maintains it
does and the Commission maintains that it does not’.

[27] More profoundly, Ngcobo CJ proceeds at paragraph 31 of the judgment as
follows:
“The Commission is the constitutionally designated authority to manage elections in the
Republic and to ensure that elections are free and fair. . . .”
At paragraph 55:

“It is necessary that the integrity of the electoral process be maintained. Indeed, the acceptance
of the elections as being free and fair depends upon this integrity. Elections must not only be
free and fair but they must be perceived as being free and fair. Even-handedness in dealing
with all political parties and candidates is crucial to the integrity and its perception by voters.
The Commission must not be placed in a situation where it has to make ad hoc decisions about
political parties and candidates who have not complied with the Act. The requirement that
documents must be submitted to the local offices of the Commission does not undermine the
right to vote and stand for election. It simply gives effect to that right and underscores the
decentralised and local nature of municipal elections” (Own emphasis.).
And finally, Ngcobo CJ went on in paragraph 57 of the judgment to say that: “This
Court does not have the power to grant relief that amounts to allowing the IFP’s participation
in the election when it has not fulfilled the requirements of the Act. It further cannot be just
and equitable for a court to penalise the successful party for making contingency plans to
comply with the order of a court in the event that such order is confirmed on appeal. To do
otherwise would not only be contrary to the law, but it would also undermine the efficiency of
the Commission, which may be reluctant, in the future to make contingency plans”.
From the above, it is plain that a strong message was sent out to political parties
and candidates, who do not comply with statutory requirements that, non-
compliance will not be condoned willy-nilly, and that a court will not, without
more, grant relief where there has been such non-compliance.

[28] In this matter, heavy weather is made, and generous criticism was levelled
against the Commission for the manner in which it interpreted, applied and used
its discretionary powers, functions and duties in deciding to exclude from the
ward ballot papers the applicant’s name in the context of circumstances of this
application. Sections 5, 15, 15A and 16 of the Commission Act, and in particular
s 23 of the Electoral Act come into play. Significantly, the applicant does not
challenge at all the provisions of s 23 of the Electoral Act, but only the
Commission’s exercise of the powers conferred by the section. Neither does the
applicant contest with the political party identifiers that the Commission has used
in assigning ward ballot papers, and furthermore, the applicant is not disputing

the rationale that informed the design of the ballot papers. As a consequence, the
reasonableness of s 23 of the Municipal Electoral Act which would ordinarily be
the case, does not come into equation here. The yardstick for rationality is by now
trite. It was succinctly put thus:
‘It is a requirement of the rule of law that the exercise of public power by the executive and
other functionaries should not be arbitrary. Decisions must be rationally related to the purpose
for which the power was given. Otherwise, they are in effect arbitrary and inconsistent with
this requirement. It follows that in order to pass constitutionality scrutiny the executive and
other functionaries must, at least, comply with this requirement. If it does not, it falls short of
the standards demanded by our Constitution for such action.’20

[29] It is clear that s 16A of the Commission Act, which deals with the
applications for change of parties’ names does not apply in this case, since the
applicant did not apply for such a change pursuant to its initial registration
application in terms of s 15 of the Act.

[30] The impugned provisions of s 23 are undoubtedly brief, clear and concise.
These powers must be read with the provisions of the Commission Act. This is
conceded in the replying affidavit. It can equally not be argued against the
proposition that the Commission is unable in law to be allowed to design a ballot
paper that in essence requires the applicant to have a registered acronym, under
circumstances that is not a registration requirement under Chapter 4 of the
Commission Act, as a party. This too, is conceded in the replying papers.21

[31] Although the powers of the Commission under s 23 of the Municipal Act
are admittedly wide, these must still be exercised correctly, judiciously and
properly, taking into account all relevant factors and circumstances. The powers

20 See Pharmaceutical Manufacturers Association of SA and others: in re: Ex parte application of
President of the RSA and Another 2000 (2) SA 674 (CC) 2000 (3) BCLR 241.
21 See RA, para 19 of 196.

are not without restrictions and must be read and interpreted together with the
provisions of s 5 of the Commission Act, also as observed by applicant, with
reference to well-known cases, such as Ruta v. Minister of Home Affairs.22
Indeed, the approach is most succinctly set out in Affordable Medicine Trust v
Minister of Health.23 In Maxrae Estates v. Minister of Agriculture, Forestry and
Fisheries and Another24 the Court said:
‘… the wide ministerial discretion essentially entailed the consideration by him of the factors
that were relevant to the decision he was required to make. The exercise of a wide discretion
was no licence for disregarding those factors and making an arbitrary decision and the Minister
could not use the doctrine of separation of powers to shield such arbitrary decision from
reviews by the Court. Mere mention that the Ministerial discretion has been exercised for the
given purpose was not sufficient. The court was constrained to intervene when the
decisionmaker had ignored the relevant factors and taken into account irrelevant
consideration.’ (Own emphasis.)
(See also Natal Joint Municipal Decision Fund v. Endumeni Municipality25 and
Cool Ideas 1186 CC. v. Hubbard and another,26 relied upon by the Commission,
for the proper approach to the interpretation of statutory provisions, such as the
provisions under discussion here.)

[32] Prior to dealing with the applicant’s constitutional challenge based on ss
19 and 190 of the Constitution, it is convenient, for the sake of expediency, to
draw conclusionary observations in regard to the contents of the preceding
paragraphs of the judgment. This I do immediately hereunder.

[33] Based on the nature of the provisions of s 5 and 15 and 15A of the
Commission Act, as well as s 23 of the Municipal Act, firstly, the ballot paper

22 2019 (2) SA 329 (CC).
23 [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC).
24 [2021] ZASCA 73 para 17.
25 [2012] ZASCA 13; [2012] 2 All SA 262 (SCA) para 18.
26 2014 (4) SA 474 (CC).

design does not preclude the inclusion of applicant’s name, and the applicant
contends that both its name and ‘abbreviation’ is deliberately 8 digits long
without spaces. It did not register an abbreviation for this reason. In the process,
the applicant does not challenge the provisions of s 23, only the exercise of power
and interpretation thereof by the Commission.

[34] In addition, for the words ‘ActionSA’ to also constitute the applicant’s
abbreviated name for purposes related to the statutory provisions governing
elections, the applicant ought to have registered it in terms of s 15 (2)(c) of the
Commission Act. It did not do so. It does not have an abbreviated name or
acronym. The argument of the applicant now advanced that it chose not to register
an abbreviated name since it was not required to do so, is a belated and
afterthought innovation. It has no merit at all. The same applies to the applicant’s
suggestion that its full name, namely ‘ActionSA’, should be used as its
abbreviated name until it is registered as such, cannot also serve as its registered
abbreviated name or acronym. The applicant’s own Constitution provides that its
name is ActionSA, notably, without any abbreviation.

[35] Furthermore, the Commission says that, in the exercise of its powers, duties
and functions, it designed the ward ballot papers, using the other political parties’
identifiers as set out in paragraph 58.1 of the answering papers.27 Once more, the
applicant does not complain against the determination to use the other political
parties’ identifiers used in the ward ballot papers.28

[36] Once the Commission has determined to use the registered abbreviated
name in the particular section of the ballot papers, it could not use full registered

27 See AA, pp 109 to 110, para 58.1 – consolidated bundle.
28 See RA, pp 218 and 219, paras 107 and 108 - bundle.

names in the particular section of the ballot papers, on its own volitation, and
arbitrarily, do so. The credible rationale for this stance, is fully set out in the
answering papers. However again, the applicant does not complain about this.
[37] In essence, the applicant’s attitude in this regard, is clearly revealed in the
replying papers, where it suggests that the Commission could have and should
have used the applicant’s full name ‘ActionSA’, in the space where for other
parties it used the acronym because its full name is 8 characters long, and
therefore meets the requirements of an acronym. This argument is, and has
already been discounted as untenable, and unfair for credible and obvious
reasons. There is no evidence at all that the other registered parties received such
generous and liberal treatment from the Commission. It is inherent, implicit, and
indeed, constitutionally mandatory, for the Commission, in performing its
objectives, duties and functions, to be fair to all registered political parties, and
practices, rules and guidelines must of necessity, be of general application. The
right to equality before the law, as entrenched in our Constitution,29 comes
strongly to the fore, particularly in fiercely contested elections, such as the LGE
2021. In this application, the applicant is plainly seeking for an indulgence under
circumstances created by itself and its leadership. The proverbial saying that, it
made its bed, and now must ‘lie in it,’ is applicable in these circumstances, in
spite of the applicant’s assertions to the contrary. In this respect, it is rather
concerning to this Court that political party leadership, their parties, independent
candidates and their supporters, still do not see it as necessary to acquaint
themselves fully with the statutory provisions applicable to elections, including
the applicable provisions of the Constitution. Voter education, membership and
supporters will continue to be important and indispensable in our developing
constitutional democracy. This begs the question, how will such leaders govern

29 See section 9 of Constitutional Bill of Rights.

successfully, the various government institutions into which they want to be
elected? This, let alone, governing the whole country.

Final conclusion
[38] In the conclusion to which I must come after careful consideration of all
contradicting views, arguments, and submissions, holistically, I cannot find fault
with the manner in which the Commission exercised its powers, duties and
functions in relation to this matter, and the applicant in connection with the LGE
2021. In particular, the Commission cannot be faulted in the manner in which it
applied, interpreted and understood the provisions of s 23 of the Municipal Act,
as contended for by the applicant, and for which the applicant has failed dismally
to make out a case. In any event, even if the applicant has made out such a case,
it would inevitably result in the impending elections to be postponed, the ballot
papers to be changed according to Court’s directives, the rest of the political
parties, independent candidates, the voters, and indeed the whole of the country,
be kept in suspense and put on hold. A declaration of invalidity, if granted by this
Court, as sought by the applicant, will have to be suspended. This will not be in
the interest of justice, all other parties involved, equity, and the country as a
whole. For all the above reasons, and those not specified herein, the application
must be refused by this Court. There is simply too much to negate the granting of
the relief sought by the applicant. Its reliance on National People’s Party v.
Electoral Commission30 is clearly misplaced, where the facts are plainly
distinguishable from the facts of the present matter.

The Constitutional Challenge

30 002/11 EC [2011] ZAEC 3 (21 April 2011).

[39] The challenge launched by the applicant, based on the provisions of the
Constitution, is equally misplaced to a large extent, regrettably. Once more, I am
constrained to be brief in this regard. Section 19 of the Constitution dealing with
political rights, provides that:
‘(1)
Every citizen is free to make political choices, which includes the right –
(a) to form a political party:
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
(2)
Every citizen has the right to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3)
Every adult citizen has the right –
(a) to vote in elections for any legislative body established in terms of the Constitution,
and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.’

[40] The applicant also relies on s 190 of the Constitution, which as indicated
above, deals with the functions of the Commission.31 The argument in regard to
the above Constitutional provisions, is that, although s 15 (2) of the Commission
Act is clear, it must be interpreted in a manner that gives effect to s 19 of the
Constitution, s 39(2) of the Constitution, as well as the foundational values of the
Constitution. The argument raised by the applicant, based on the provisions of
the Constitution, are trite matters, which have been raised numerous times in the
various High Courts, as well as the Constitutional Court, and proper guidance
was given in relation thereto. See in this regard, for example, Steenkamp NO v
Provincial Tender Board, Eastern Cape32 where the Court dealt with issues such
as, improper performance of an administrative function, and its implications on
the Constitution; appropriate remedy; and the purpose of public remedy in regard
to the party prejudiced thereby i.e. to afford such party administrative justice. In

31 See section 190 of the Constitution.
32 2007 (3) SA 121 (CC).

the present matter, there is plainly no just and equitable remedy that may be
granted by the Court to the applicant under s 172 (a) (b) of the Constitution. The
reason is that the applicant has simply not made out a case for such remedy. There
is no proof at all that the Commission, in carrying out its powers, either based on
applicable statutory provisions or the Constitution, breached such provisions.
Conclusion
[41] The inevitable conclusion is that the applicant’s challenge based on the
provisions of the Constitution must fail. The same applies to the applicant’s
reliance based on the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
The principle of legality, rather than reviews on the grounds of PAJA, was more
appropriate.

Costs
[42] The applicant has asked for costs. On the other hand, the Commission does
not seek costs against the applicant. It will be just and equitable that no order as
to costs should be made.

Order
[43] In the result, the following order is made.
1. The application is dismissed.
2. There is no order as to costs.

D S S Moshidi
Acting Judge
Electoral Court of South Africa

Shongwe AJ (Dissenting)

[44] I have had the opportunity to peruse the draft judgment by Moshidi AJ. I
note that he has arrived at a verdict of dismissing the application with no order as
to costs. I do concur with some of the findings he has made, however, I part ways
with the reasoning, interpretation and resultant conclusion. I must state, at the
outset, that I do not agree with the conclusion. I shall briefly state my reasons
why I am of the view that the application should have been granted with no order
as to costs.

[45] Moshidi AJ has comprehensively reviewed the facts of this case as it was
presented in court by both parties. Therefore, it will not be necessary for me to
recapitulate them. It suffices to mention that the stark question before this court
is whether or not the Commission acted unlawfully and unconstitutionally in
deciding to exclude the name of the applicant from the ballot paper. The other
alternative reliefs do not take this matter any further. The essence of the relief
sought is to set aside the Commission’s decision to exclude the applicant’s name
from the 2021 election Ward ballot paper.

[46] The Commission argued that it took no decision, therefore there is no
decision to be reviewed. In my view the Commission did take/make a decision.
The decision was, when it exercised its discretion in determining the design of
the ballot paper, in terms of section 23 of the Local Government: Municipal
Electoral Act 27 of 2000 (Municipal Electoral Act), it decided to use an
abbreviated version to appear on the ballot paper instead of the full name of a
party. This decision is not provided for in any law. It is common cause that no
law directs the Commission to use an abbreviation and no law obliges a political

party to register an abbreviated version of its name. Instead, section 15 (2) of the
Electoral Commission Act 51 of 1996 (Commission Act) puts it as an option and
not a requirement. The decision to exclude the name of the applicant and use the
abbreviation on the ballot paper makes it a requirement which is not provided for
in law.

[47] Section 23 of the Municipal Electoral Act empowers the Commission to
determine the design of the ballot paper to be used in the election. Nowhere does
the act directs the Commission to insist on a registration of an acronym. Clearly
the decision is prejudicial to anybody interested in participating in the election,
especially political parties. More so, there is or was no warning to anyone to be
aware that the Commission will design the ballot paper in such a manner that an
abbreviation will be required. When the applicant first applied for registration as
a political party, it did register an abbreviation, but for some reason, not really
relevant here, when it registered for the second time it elected not to register one,
unbeknown to the applicant that the Commission will require registration of the
abbreviation when designing the ballot paper. Had the applicant been aware that
an abbreviation was a requirement or known the purpose of an abbreviation,
surely it should and could have registered one. In my considered view, the
Commission neglected and failed to exercise its constitutional duty and obligation
to promote its objective to strengthen constitutional democracy and promote the
democratic electoral process.

[48] In its answering affidavit, the Commission at para 61, stated that:
‘It is clear therefore that the reason for not including an abbreviated name for ActionSA in the
section of the ballot paper where the others’ abbreviated names or acronym appear is because
ActionSA chose not to register one. ActionSA criticises this decision as unlawful and irrational
because: …….’.

The rest were the reasons stated by ActionSA as being irrational, there is no need
to repeat them. The nub of the matter is that the Commission concedes that it did
take a decision and the reason why ActionSA’ name was excluded is its election
not to register an abbreviation. Clearly the applicant is punished for not
registering an abbreviation. In my view, that is unlawful and unconstitutional.
Considering the Commission’s constitutional obligations. The Commission is
supposed to manage elections but not to manage by ambush.
[49] In terms of section 5 of the Electoral Commission Act 17 of 1996 (the
Commission Act), the functions of the Commission include, inter alia, the
promotion of conditions conducive to free and fair elections; to promote
knowledge of sound democratic electoral processes; to promote voter education;
to cooperate with persons, institutions for the achievement of its objects.

[50] In Ruta v Minister of Home Affairs33 the court said:
‘Well established interpretive doctrine enjoins us to read the statutes alongside each other, so
as to make sense of their provisions together…’
Section 190 of the Constitution of the RSA, inter alia, provides that the elections
must be free and fair. In Kham and others v Electoral Commission and Another34
the court, amongst others, said:
‘The court must give full weight to the constitutional commitment to free and fair elections and
the safeguard it provides of the right and ability of all who so wish to offer themselves for
election to public office. It is essential to hold the IEC to the high standards that its
constitutional duties impose upon it.’

[51] The constitutional requirement that elections must be free and fair, was also
dealt with in Kham,35 the court stated that:
‘This is a single requirement, not a conjunction of two separate and disparate elements. The
expression highlights both the freedom to participate in the electoral process and the ability of

33 2019 (2) SA 329 (CC) para 42.
34 (2016) (2) SA 338 (CC) para 91.
35 Supra, para 86.

the political parties and candidates, both aligned and non-aligned, to compete with one another
on relatively on equal terms, so far as that can be achieved by the IEC’.

[52] The constitutional court has on many occasions emphasized the crucial
importance of these duties that rest on the Commission. In New National Party v
Government of the Republic of South Africa and Others,36 it was stated that:
‘The right to vote is, of course indispensable to and empty without, the right to free and fair
elections; the latter gives content and meaning to the former. The right to free and fair elections
underlines the importance of the exercise of the right to vote and the requirement that every
election should be fair has implications for the way in which the right to vote can be given
more substantive content and legitimately exercised’.

[53] I agree that, for the applicant to have asked the Commission to accept its
full name as an abbreviation simply because it contained eight letters, without
following the correct procedure, was an inappropriate and opportunistic after
thought. The Commission was correct in refusing that request. The question of
urgency is common cause and needs no further elaboration. The other reliefs
sought by the applicant may have been impractical to achieve because of the time
frames and preparedness/readiness. My view is, the Commission concentrated on
the fact that the applicant had elected not to register an abbreviation instead of
dealing with the challenge at hand. It lost focus and concentration and busied
itself with non-issues. I am convinced that had the Commission concentrated on
the issue at hand a solution could have been found to include the applicant’s name
in the ballot paper.

[54] In Johnson and others v Electoral Commission and Others,37 that court
referred to the former Chief Justice Langa in New National Party (supra) where
the then Chief Justice described the duties of the Commission as being more than

36 1999 (3) SA 191, para 12.
37 2013] ZAEC 2, 2014 (1) SA (EC) para 30.

supervisory, but ‘relate to an active, involved and detailed management
obligation over a wide terrain’. In my considered view, that the Commission
should not act as an umpire only, it should manage and be proactive and
transparent in the execution of its duties. It should not behave as an opponent to
political parties but to provide an unbiased guide.

[55] In conclusion I would have granted the application with no order as to
costs. This begs the question what relief would I have granted, I would have
referred the matter back to the Commission to devise a solution. A couple of
suggestions were thrown around, a rubber stamp or a sticker but no solution was
reached, which I think the Commission should have done.

J B Z Shongwe
Acting Judge
Electoral Court of South Africa

18 January 2021