IN THE ELECTORAL COURT OF SOUTH AFRICA,
HELD AT JOHANNESBURG

CASE NO: 005/2016 EC

In the matter between:

NATIONALIST COLOURED PARTY OF SOUTH AFRICA                Applicant

and

THE INDEPENDENT ELECTORAL COMMISSION
OF SOUTH AFRICA

First Respondent

MR ANDRE JACOBS

Second Respondent

Coram : SHONGWE JA ET MOSHIDI ET WEPENER JJ (WITH Adv.
MTHEMBU and Ms. PATHER – MEMBERS)

Neutral Citation: Nationalist Coloured Party of South Africa v The IEC and
Another (Case no 005/2016 EC) [2016] ZAEC 3 (18 July 2016)

___________________________________________________________

J U D G M E N T

SHONGWE JA: (MOSHIDI, WEPENER JJ, Adv MTHEMBU AND Ms
PATHER – MEMBERS CONCURRING):

[1] This court issued an order on 1ST JULY 2016 in the following terms:

(a)
The decision of the Electoral Commission to retract the change of
name of the NCPSA and the amendment to its constitution, is set aside.
(b)
The Nationalist Coloured Party of South Africa (NCPSA), as
represented by Mr Frank Martin, is the registered party.
(c)
Subject to the applicable Regulations, Mr Frank Martin must be
recorded as the registered contact person of the NCPSA in place of Mr Andre
Jacobs.
(d)
The list of candidates submitted by Mr Frank Martin on behalf of the
NCPSA must be accepted by the Commission.
(e)
There is no order as to costs.

[2] The Court ordered that the reasons will follow in due course. What
follows are the reasons for the above order.

[3] The applicant, Nationalist Coloured Party of South Africa (NCPSA),
brought an application to review the decision of the Electoral Commission
(‘the Commission’) in terms of section 20(1)(a) of the Electoral Commission
Act 51 of 1996 (‘the Act’). The application is also brought in accordance with
Rule 6 of the Rules regulating the conduct of the proceedings of the Electoral
Court (EC) (Government Gazette No 18908, Notice 749 of 1998). The
decision which is the subject of the review is the retraction of the registration
of the NCPSA and the reinstatement of the Nationalist Coloured Party (NCP)
which was registered initially.

[4] It is significant to briefly deal with the background facts. It is common
cause that the NCP was registered as a political party by the Commission in
terms of section 15 of the Act in 2013. Mr Andre Jacobs was the party leader
and the contact person. On 22/4/16 the commission received an application
for the change of name, abbreviated name and logo of the NCP to NCPSA in
terms of section 16A of the Act.

[5] The application for change of name was found to be in order, in other
words, to be compliant with the requirements of the Act. It was also
accompanied by a letter signed by Mr Jacobs authorising Mr Martin to

‘engage the media and to release related statements on behalf of the NCP …
Mr Martin is also fully authorized to engage the IEC on all matters pertaining
to NCP business’. The change of name and logo was duly registered, on the
strength of the letter of authority. The party leader Mr Andre Jacobs was duly
notified by letter of the 23 May 2016.

[6] On 7 June 2016, the Commission received a complaint from Mr Jacobs
to the effect that Mr Martin did not have the authority to deal with the
Commission on behalf of the NCP and that he acted fraudulently. That Mr
Martin had been expelled from the NCP in February 2016 by the patron Mr
Badih Chaaban. On 9 June 2016 the Commission wrote to Mr Jacobs
advising him that the Commission bona fide changed the name and logo and
also that the change will be reversed and the NCP constitution will remain
unchanged.

[7] On 14 June 2016 a letter was sent to Mr Martin informing him of the
decision to retract the registration of the NCPSA on the basis of regulation 9
of the Regulations for the registration of Electoral Parties 2004 published
under GN R13 in GG 25894 of 7 January 2004. Regulation 9 reads thus:
‘9 Notification of change in registration particulars
Any change in the particulars furnished in Annexure 1 must be notified to the Chief
Electoral Officer in writing within 30 days after such change by the registered contact
person or the leader of the party.’

[8] The essence of the NCPSA’s complaint is that due process and the
correct procedure was not followed by the Commission, in that it reversed the
NCPSA’s registration before it could inform Mr Martin, who had been fully
authorized to engage with the Commission in all matters pertaining to NCP
business.

The Commission considered this complaint as an internal party dispute and
therefore was not interested in getting involved.

[9] The disputed facts are that Mr Martin lacked the authority to change
the name and the logo of NCP. The Commission revoked the registration of
the NCPSA, without consulting Mr Martin. Mr Martin avers that Mr Jacobs
authorized him to deal with the Commission in matters pertaining to the
business of NCP. This authority was understood by Mr Martin to include
changing the name and logo of the NCP.

[10] The applicant is a lay person who is legally unrepresented and
therefore the form in which he launched his application should not prejudice
his case. It is the substance of all the facts before this court that should be
considered as a whole. The court should deal with the evidence before it.
Because these are motion proceedings, it is advisable to be guided by the
principle known as the ‘Plascon Evans Rule’ (Plascon-Evans Paint Ltd v Van
Riebeck Paints Ltd 1984(3) SA 620(A)) which directs that when factual
disputes arise, therefore, relief should be granted only if the facts stated by
the respondent together with the admitted facts in the applicant’s affidavit,
justify the order. In this matter, there is a dispute as to who is the contact
person or leader of the party and whether Mr Martin was relieved of his duties
as a member of the NCP. Also whether Mr Martin had the authority to change
the name, logo and the constitution of the NCP.

[11] Mr Jacobs, as the second respondent, is, in my view, vague in his
answers to the allegations by Mr Martin. He fails to explain why and how was
Mr Martin’s authority terminated, save to state that he was expelled in
February 2016. The expulsion is denied by Mr Martin, on the contrary he
furnishes evidence showing that he had numerous and continuous
conversations with Mr Jacobs well into the month of May 2016 via a series of
emails and Whatsapp messages.

[12] For instance on 15 May 2016, via Whatsapp Mr Jacobs wrote to Mr
Martin as follows: ‘Morning Frank, (this is Mr Martin) Could we please meet
soonest to discuss possible way forward?... but let me know for today before
3pm or Friday eve when I return. Beste, Andre’ (this is Mr Jacobs). On 17 May
2016 another Whatsapp series of communication started when Andre stated:

‘Posters can go up 19 May. Its 11 weeks to election’. There are about 18 bits
of communication in all between Mr Jacobs and Mr Martin. This interaction
went on until 26 May 2016, Andre at 3.09 pm (Probably quoting from a
website – ‘25/5/16 SAnews.gov.za (Tshwane) South Africa: IEC Welcomes
Proclamation of Elections “Nominations for independent candidates to contest
ward elections must also be submitted by 17H00 on 2 June,” said the
commission this I find on internet google hope it will help’

On 27/5/16, at 7.49 pm, Frank: ‘A PC (Presidential Council) meeting took a
decision that the administrator will deal with all registration for submission. So
we are sorted thanks’. At 8.46am a response from Andre: “Ok”. A few
Whatsapp messages were exchanged when the registration of candidates
was discussed.

[13] Mr Jacobs does not deal with all these series of Whatsapp messages,
does not deny them either. In terms of the Plascon-Evans rule, where the
allegations or denials of the respondent, in this case Mr Jacobs, are far-
fetched or clearly untenable, the court would be justified in rejecting them
merely on the papers. Based on the Plascon-Evans rule, I am of the view that
the second respondent’s failure to deny the applicant’s allegations is
untenable and falls to be rejected on the papers. I may add that Mr Jacobs
failed to attend the hearing and did not even furnish heads of argument, after
he had been requested to do so.

[14] When the Commission received a letter of authority from Mr Jacobs,
authorising Mr Martin to engage the Commission on all the business of the
NCP, which authority is not denied by Mr Jacobs, the Commission should
have recorded the name of Mr Martin as the contact person and leader of the
party in accordance with the provisions of Regulation 9 – and also in
accordance with the new constitution which recorded Mr Martin’s portfolio as
the national leader of the party. Had that happened, the Commission would
have contacted Mr Martin first before retracting the registration of the NCPSA.
Therefore this court is of the view that the decision taken by the Commission
was procedurally unfair as contemplated in section 6(2)(c), of the Promotion

of Administrative Justice Act 3 of 2000 (PAJA). Simply on the say so of Mr
Jacobs the Commission took his word without consulting an authorized
person, Mr Martin, regarding such serious allegations of fraud. Mr Jacobs
mentioned that he opened a criminal case against Mr Martin.  Save for
quoting a case number, nothing further substantiated the allegation of fraud –
nowhere is it said that Mr Martin forged his signature and no proof thereof was
proferred.

[15] This court is empowered to substitute or vary the decision of the
Commission in exceptional circumstances as contemplated in section
8(1)(c)(ii)(aa )of PAJA. I believe that the applicant has succeeded in showing
exceptional circumstances, in that the elections are hardly a month away and
further that inclusion outweighs exclusion in the circumstances of this case.
The electoral court is a specialized court, which in most cases deals with
inherently urgent matters.

[16] The Commission as a public body should be seen to be pro-active in
certain instances. It should play a reconciliatory role as the public depends on
it in giving direction and advice to the public or political parties. This court is
not oblivious of the mammoth task on its shoulders, however calling the
belligerent parties and trying to reconcile them will cause no harm, instead it
would do more good and build confidence on the Commission by society.

[17] In the result the above order was made based on the reasons
mentioned.

_____________
SHONGWE JA

_____________
MOSHIDI J

_____________
WEPENER J

_____________
ADV. MTHEMBU – Member

_____________
Ms. PATHER - Member