REPUBLIC
OF SOUTH AFRICA
ELECTORAL
COURT,
BLOEMFONTEIN
CASE NO: 007/14
(1 )
REPORTABLE:
YES 100
(2)
OF INTEREST TO OTHER
(3)
I!JVISED.
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801r
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In the application between:
MEC CO-OPERATIVE GOVERNANCE, HUMAN
SETTLEMENTS AND TRADITIONAL AFFAIRS,
NORTHERN CAPE
Applicant
and
INDEPENDENT ELECTORAL COMMISSION
First Respondent
THEMAYOR:DANNYJONAS
Second Respondent
THEMBELlHLE LOCAL MUNICIPALITY
Third Respondent
MUNICIPAL MANAGER: THEMBELlHLE
LOCAL MUNICIPALITY
Fourth Respondent
SUMMARY: Electoral
law
-
interpretation
of
s
27(f)(ii)
of
the
Local
Government: Municipal Structures Act 117 of 1998 as amended
- whether a candidate's name appearing on a party list makes
him, ipso iure, a member of that political party - this court found
that it does not follow -
membership is a VOluntary choice a
person makes.

JUDGMENT
SHONGWE JA, (Moshidi J and Ms Pather concurring)
[1] This is an application for the review and setting aside of a decision of
the Electoral Commission (the EC) which declined a request by the applicant,
the MEC for Co-operative Governance, Human Settlements and Traditional
Affairs, Northern Cape (the MEC) to hold and manage a by-election in Ward 1
of the Thembelihle Local Municipality.
[2] The MEC sought a declaratory order that a vacancy had occurred in
Ward 1 of the Thembelihle Local Municipality in terms of s 27(f)(ii) of the Local
Government:
Municipal
Structures
Act
117 of
1998 as
amended
(the
Structures Act).
[3] I wish to set out from the onset, the facts that led to the request to hold
and manage a by-election in Ward 1. The second respondent ('Councillor
Jonas') is a duly elected councillor and a duly elected Mayor of Thembelihle
Local Municipality. In April 2014 the MEC became aware that Councillor
Jonas' name appeared on a candidate list of a political party - the Economic
Freedom Fighters (the EFF).

[4] The MEC requested the municipal manager to call and set aside a date
or dates for a by-election in Ward 1 in terms of s 25(3) of the Structures Act
which provides that the municipal manager, must, after consultation with the
EC, by notice in a local newspaper call and set a date for the by-election if a
vacancy occurs. The MEC was obviously of the view that a vacancy had
occurred by virtue of Councillor Jonas' name appearing on the candidate list
of the EFF. This view was formed because the MEC read s 27(f)(ii) of the
Structures Act to mean that Councillor Jonas had vacated his office.
[5] Section 27(f)(ii) reads as follows:
'27 Vacation of office:
A councillor vacates office during a term of office if that councillor-
(a)
resigns in writing;
(b)
is no longer qualified to be a councillor;
(c)
was elected from a party list referred to in Schedule 1 or 2
and ceases to be a member of the relevant party;
(d)
contravenes
a
provision
of
the
Code
of
Conduct
for
Councillors set out in Schedule 1 of the Local Government:
Municipal Systems Act, 2000, and is removed from office in
terms of the Code;
(e)
is a representative of a local council in a district council and
ceases
to
be a
member
of
the
local
council
which
appointed
that
councillor
to
the
district
council
or
is
replaced by the local council as its representative in the
district council; or
(f)
was elected to represent a ward and who-

(i)
was nominated by a party as a candidate in the ward
election and ceases to be a member of that party; or
(ii)
was not nominated by a party as a candidate in the
ward election and becomes a member of a party.'
[6] The municipal manager neglected or failed to act in terms of the
request by the MEC. The MEC decided to act in terms of s 25(4) of the
Structures Act which entitles him, after consulting the EC, to call and set aside
a date for the by-election, which must be held within 90 days of the applicable
date. However, the EC responded by stating that on the facts presented to it
no vacancy had arisen and therefore it was not in a position to acquiesce to
the request. The EC required proof or information supporting the contention
that Councillor Jonas had indeed joined a political party.
[7] It is clear that the MEC and the EC had two diametrically opposed
views on the understanding and interpretation of s 27(f)(ii) of the Structures
Act. Put differently they could not agree whether or not a vacancy had arisen.
Hence the EC was not prepared to call and manage a by-election. The MEC
took the view that the EC's refusal to manage a by-election constituted an
unlawful administrative action/decision, which entitled him to approach this
court to review and set aside the said decision.
[8] The review application came before this court on 16 January 2015 for
hearing. The applicant's counsel requested a postponement because she
came to know, for the first time on that day, of the existence of a newspaper

article which purported to be an interview held by Councillor Jonas which, it
was argued, contained an admission by Councillor Jonas that he had become
a member of the EFF. The application was opposed, however, this court
granted the postponement allowing the applicant an opportunity to prepare a
substantive application in terms of Rule 6(5)(e)
of the rules of this court.
Further
supplementary
supporting
and
opposing
affidavits
were
filed
introducing further evidence including the aforesaid newspaper article.
[9] On 9 April 2015 during the hearing of this matter it transpired that both
the EC's and the second respondent's
counsel were
not opposing the
introduction of the newspaper article. Counsel for the applicant also indicated
that she was abandoning the evidence regarding the pictures found on social
media, namely Facebook, of Councillor Jonas wearing what appeared to be
the EFF uniform. The concessions were noted and the introduction of the
further evidence was allowed.
[10] During the discussions between the MEC, EC and Councillor Jonas'
attorneys, as early as 30 May 2014, Councillor Jonas' attorneys conceded
that he had been approached by leaders of the EFF to have his name on their
candidate list of both the provincial and national parliament because of his
experience and expertise, to which Councillor Jonas agreed. However in the
said correspondence, it was categorically denied that Councillor Jonas was
ever a member of the EFF and or any other political party. An affidavit by
Councillor Jonas was attached to the said correspondence which contained,
inter alia, a denial of ever being a member of the EFF and a further sentence

that reads: 'I realised, and it was confirmed to me that you need not be a
member of the EFF to represent them in Parliament or legislature, as was the
case with members of SOPA and others who appeared on their list'.
[11] The central question to be adjudicated upon is whether Councillor
Jonas had become a member of the EFF, a political party. If it is proved that
he became a member then in terms of s 27(f)(ii) a vacancy shall have
occurred and Councillor Jonas will have to vacate his office, consequently the
application will have to succeed. However, if the applicant fails to prove his
membership, the application stands to be dismissed.
[12] Political rights and related matters are governed
by s 19 of the
Constitution of the Republic of South Africa Act 108 of 1996. It provides, inter
alia, that every citizen is free to make a political choice, which includes the
right to participate in the activities of, or recruit members for a political party -
to stand for public office and, if elected to hold office. It is all about choice - no
person can or should be deemed to be a member of a political party.
Therefore the applicant's contention that Councillor Jonas had become a
member of EFF by operation of law cannot be correct. Membership of a party
cannot be acquired involuntarily. An offer and acceptance must take place.
[13] In my view this matter is not about the correct interpretation of section
27 (f)(ii)
- the parties, including the applicant, are ad idem on what s 27(f)(ii)
means - that once a councillor is elected to represent a ward, not having

been nominated by a political party as a candidate - what is usually referred
to as an independent candidate - he/she must vacate his/her office if he/she
becomes a member of a political party during the term of his/her office.
Therefore whether the councillor has become a member of a political party
requires a factual investigation resulting in a factual conclusion. It is not a
matter of law.
[14] Section 27 of the Electoral Act 73 of 1998 deals with the submission of
lists of candidates. It requires registered political parties intending to contest
an election to nominate candidates - it does not talk of members - whether or
not the candidates nominated are members of that political party, is for the
party itself to resolve. Every political party has rules and regulations and in
most cases it has a constitution determining who may be a member and who
qualifies to be nominated as a candidate. The simplest manner for the
applicant to determine whether Councillor Jonas had become a member of
the EFF was to approach the EFF and request a confirmation
of his
membership or the lack thereof. This was not done.
[15] The fact that Councillor Jonas' name appeared on the candidate list of
the EFF did not make him a member - however it made him a candidate as
required by law. I agree with Mr Mpofu SC, for Councillor Jonas, that the
words member, candidate or supporter are not synonymous.
For one to
become a member of a political party, which is indeed a voluntary association,
one makes a choice to join
as a member
and thereafter
applies
for
membership -
it will be for the political party to decide whether or not to

accept or reject the application. Councillor Jonas has confirmed on affidavit
that he was not a member of the EFF.
[16] As a second leg of its contention, the applicant argued that Councillor
Jonas admitted to a journalist to have joined a political party. This was denied
by Councillor Jonas. For the applicant to succeed in this respect the principles
enunciated in Plascon-Evans Paints Ltd v Van Riebeeck Paints Ltd (pty) 1984
(3) SA 623 (A) at 634F-G must be taken into consideration. Van Wyk J in
Stellenbosch Farmers' Winery Ltd v Stellenbosch Winery (Pty) Ltd 1957 (4)
SA 234 (C) at 235E-G said:
'[W]here there is a dispute as to the facts a final interdict should only be
granted in notice of motion proceedings if the facts as stated by the
respondents together with the admitted facts in the applicant's affidavit
justify such an order ... Where it is clear that facts, though not formally
admitted cannot be denied, they must be regarded as admitted.'
Councillor Jonas on separate occasions denied having become a member of
the EFF as indicated in paragraph 10 above. This court based on the general
rule in Plascon-Evans has no choice but to reject the applicant's version of
events and accept Councillor Jonas' version.
[17] The applicant contended that by virtue of Councillor Jonas' name
appearing as a candidate on the EFF's list that, ipso iure, made him a
member of the EFF. I have concluded and logic also fortifies my conclusion
that choice is fundamental for membership to exist. In my view the applicant

failed to prove that Councillor Jonas became a member of the EFF therefore it
cannot be said that a vacancy arose which entitled the applicant to request
the EC to manage a by-election in Ward
1 of the Thembelihle
Local
Municipality. The refusal by the EC was justified, reasonable and lawful in the
circumstances. The application stands to fail in its entirety.
[18] In the result the application is dismissed.
UDGE J B Z SHONGWE
CHAIRPERSON
OF THE
ELECTORAL
COURT
Moshidi J
Ms Pather

SUBMISSIONS
APPLICANT:
LSN Thomas SC
TK Manyase
FIRST RESPONDENT
MTK Moerane SC
L Gcabashe
SECOND
RESPONDENT
DC Mpofu SC
DA TE OF HEARING:
DATE OF ORDER:
DATE OF JUDGMENT:
09 April 2015
13 May 2015