IN THE ELECTORAL COURT OF SOUTH AFRICA
HELD AT BLOEMFONTEIN
Not Reportable
Case number: 003/2023 EC
In the matter between:
RONALD FEBRUARIE
First Applicant
SIYATHEMBA COMMUNITY MOVEMENT
Second Applicant
and
ELECTORAL COMMISSION OF SOUTH AFRICA
First Respondent
JOHAN ANDREW PHILLIPS
Second Respondent

Neutral Citation:
Februarie and Another v Electoral Commission of South Africa and
Another (003/2023 EC) [2023] ZAEC 3 (1 August 2023)

Coram:
Zondi JA, Modiba J and Shongwe AJ and Professors Ntlama-Makhanya
and Phooko (Additional Members)

Delivered:
This judgment was handed down electronically by circulation to the parties’
representatives by email, publication on the Supreme Court of Appeal website and
release to SAFLII. The date and time for hand-down is deemed to be 11:00am on
1 August 2023.

Summary: Appeal and/ or review of the Independent Electoral Commission’s decision in
terms of s 20(1)(a) and/or s 20(2)(b) of the Electoral Commission Act 51 of 1996;
application for an order declaring Regulation 9 of the Regulations for the Registration of

Political Parties 2004 to be unconstitutional; application to compel the IEC to execute its
duties, powers and functions in terms of s5(1)(f).
Points in limine – jurisdiction – the Court’s review and appeal jurisdiction not engaged.
S 20(2A) jurisdiction engaged to the extent the application involves a leadership dispute.
Locus standi – upheld. Res judicata – upheld - relief sought similar to that sought in first
SCM judgment. Urgency – established – requirements for urgency in terms of s 20(1)(a)
read with Rule 5(1) and 6(1) of the Electoral Court Rules met.
Merits – whether Regulation 9 of of the Regulations for the Registration of Political Parties
2004 as amended on 27 August 2021 is unconstitutional – whether the Independent
Electoral Commission has breached s 5(1)(f) of the Electoral Commission Act 51 of 1996
– whether the term of Siyathemba Community Movement’s District Management
Structure has expired – application dismissed with no order as to costs.

JUDGMENT

Modiba J:

Introduction
[1] This is the third time that the facts that ground this application are considered by
the Courts. The first applicant, Ronald John Februarie (Mr Februarie) together with Piet
Arnold Olyn (Mr Olyn) and others on the one hand and the second respondent, Johan
Andrew Phillips (Mr Phillips) and others on the other, are members of the second
applicant, Siyathemba Community Movement (SCM). They have been embroiled in a
dispute regarding the leadership of SCM since December 2021. Their dispute was first
considered by this Court in Siyathemba Community Movement v The IEC and Others in
the first term of 2022.1 Depending on the context, I conveniently refer to that application
as the first SCM application or judgment. The dispute was also considered by the
Northern Cape High Court (the high court) under case number 148/22NCHC. The high
court rendered its judgment in May 2023. Depending on the context, I conveniently refer
to that application as the high court application or judgment.

[2] As anticipated by this Court at paragraph 11 of the first SCM judgment, the high
court application determined the leadership dispute between the parties by rejecting the
version Mr Februarie presents in this application. This time, although the applicants
approach this Court on purportedly new facts and for slightly different relief, the
application is primarily grounded on the facts that grounded the first SCM and high court
applications. The applicants are regrettably unable to wiggle themselves out of the
outcomes of the first SCM and high court applications. At worst, this application
constitutes abuse of the process of this Court.

1 (Case no 005/22 EC) [2022] ZAEC 7 (22 April 2022).

[3] In the present application, the applicants, Mr Ronald Februarie (Mr Februarie) and
the SCM seek the following orders:
(a)
declaring that Regulation 9 of the Regulations for the Registration of Political
Parties 2004 as amended on 27 August 2021 (Regulation 9) which requires that changes
to a registered party’s particulars can only be effected by the party’s registered leader is
unconstitutional (prayer (a));
(b)
directing the Independent Electoral Commission (the Commission) to execute all
its legislative duties, powers and functions in terms of s 5(1)(f) of the Electoral
Commission Act, 51 of 1996 (the Electoral Act) by implementing the SCM’s
Constitution and the resolution taken by its General Assembly and effect changes
to the SCM’s registered particulars (prayer (b)); and
(c)
declaring that the term of SCM’s District Management Structure (DMS) has expired
and compelling the first respondent, the Commission to ensure that a new election
process is initiated on an expedited basis to elect a new DMS for the SCM (Prayer
c).

[4] The Commission opposes the application on the merits. The second respondent,
Johan Andrew Phillips (Mr Phillips) has raised three dispositive points in limine, namely
lack of jurisdiction, res judicata and Mr Februarie’s lack of locus standi. He also opposes
the application on the merits. Mr Phillips seeks a dismissal of the application with punitive
costs.

[5] The members of this Court unanimously agreed that no oral hearing was warranted
in this application and that it should be disposed of on the papers filed on record. None
of the parties had addressed the question whether the application engages this Court’s
jurisdiction in terms of s 20(2A) of the Electoral Commission Act.2 The Chairperson
directed them to file further submissions in this regard. They all did. This judgment is
rendered having considered all the papers filed. This Court is indebted to all the parties

2 Act 51 of 1996.

for complying with all directives issued and for the assistance they have rendered in
ensuring that this matter is disposed of expeditiously.

[6] The locus standi and res judicata points in limine are dispositive of the application
in this Court. However, I consider the rest of the issues for the following reasons. One of
the bases on which Mr Phillips seeks a dismissal of the application with punitive costs is
that the points in limine he raises demonstrates that the application should not have seen
the light of day. The application also lacks merit. The second reason I consider all the
issues is because of the binding authority discouraging peace-meal litigation to avoid the
prospect of an appeal court considering any issue as the court of first instance in the
event of an appeal.3

[7] Mr Phillips seeks condonation for the late filing of his answering affidavit. The
applicants do not oppose the request. Mr Phillips served his answering affidavit within the
time directed by this Court. He only filed it outside the time set out in the notice of motion.
The explanation he has put up for non-compliance with the timeframe in the notice of
motion is that the applicants had served him with an application that did not seem to be
properly instituted. It did not bear the Court stamp or case number. The Court Registrar
only confirmed the validity of the application on 14 June 2023 in response to an enquiry
by his attorney. On 21 June 2023, this Court directed that he files his answering affidavit
by 23 June 2023. His attorney only served it on the applicants on that date. He filed it with
the Registrar on 7 July 2023.

[8] The time frame as directed by the Chairperson of this Court superseded that in the
notice of motion. Court papers are only properly delivered when served on the other

3 Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA
486 (SCA) ([2012] 2 All SA 345; 2012 (6) BCLR 613; [2012] ZASCA 15) para 49; Louis Pasteur Holdings
(Pty) Ltd and Others v ABSA Bank Ltd and Others 2019 (3) SA 97 (SCA) para 33; Theron and Another
NNO v Loubser NO and Others 2014 (3) SA 323 (SCA) para 26.

parties and filed in Court. The answering affidavit was timeously served as directed by
this Court. The other parties suffered no prejudice as a result of its late filing. Mr Februarie
has replied to it. The Court did not suffer any inconvenience as a result of the late filing
of the answering affidavit. Mr Phillips has set out a full explanation for the delay. As
appears from this judgment, he has prospects of success. His request for condonation is
granted.

[9] I first briefly outline the background facts. Against the background, I consider the
points in limine and the merits. Lastly, I deal with the costs of the application. An order
concludes the judgment.

Background facts
[10] The background facts are detailed in the first SCM and high court judgments. It is
for that reason that I only set them out below concisely.

[11] SCM is a duly registered political party located in the Pixley ka Seme District
Municipality (the DM) in the Northern Cape Province. It participated in the 2021 local
government elections which were held on 1 November 2021 and won four of the eleven
seats in the DM. Mr Februarie currently occupies one of these DM seats. The other seat
is occupied by Mr Phillips. Mr Phillips is also the Mayor of the DM, a position he occupies
as SCM’s duly elected mayoral candidate. Subsequently, the leadership dispute
referenced above arose. It culminated in the purported suspension in December 2021
and dismissal in January 2022 of Mr Phillips and two other members from SCM. On
19 January 2022, Mr Februarie addressed a letter to the Commission requesting it to give
effect to the expulsion of these members by updating the SCM’s proportional
representatives list to reflect these purported developments. The Commission refused to
give effect to this request, acknowledging the existence of an internal party dispute and
citing its lack of jurisdiction over it.

[12] In February 2022, SCM instituted the first SCM application seeking an order to
compel the Commission to implement Mr Februarie’s request to amend the SCM’s
proportional representatives list to reflect the changes occasioned by the expulsion of the
three members. The Commission opposed the application based on several points in
limine and the merits. In an order granted on 22 April 2022, this Court upheld the
Commission’s points in limine and dismissed the application. Two of the points in limine
are relevant to this application. Mr Februarie was found to lack locus standi to bring this
application and to depose to affidavits on behalf of the SCM. The high court application
which was at that time pending was found to sustain a lis pendens point in limine.

[13] In a judgment rendered on 23 May 2023, the high court upheld the application. I
deal with its ruling in detail under the locus standi and res judicata sections of this
judgment.

[14] On 31 May 2023, Mr Olyn addressed a letter to the Commission, asserting that the
high court judgment paves the way for the Commission to implement the request
Mr Februarie made to the Commission on 19 January 2022. (This assertion was clearly
based on in an incorrect reading of the high court judgment.) On 7 June 2023,
Mr Februarie addressed another letter to the Commission decrying its failure to amend
the SCM’s registered particulars. On 9 June 2023, the Commission responded that in
terms of Regulation 9, the only person who has the capacity to request the Commission
to amend the SCM’s registered particulars is Mr Phillips as its leader. If he refuses, in the
absence of an order of Court declaring that Mr Phillips is no longer the SCM leader and
stating who the new leader is, and an amendment request addressed to the Commission
by the new leader, there is no legal basis for the Commission to implement the
amendment request as it does not comply with Regulation 9.

[15] The applicants instituted this application on 13 June 2023, impugning the
Commission’s 9 June 2023 decision under this Court’s review and/ or appeal jurisdiction.

They imply that by refusing to act on Mr Olyn’s 31 May 2023 request, the Commission is
not executing its statutory mandate in terms of s 5(1)(f). Hence, in prayer (b), they seek
an order compelling the Commission to implement resolutions purportedly taken by the
SCM General Assembly and amend SCM’s registered particulars. The modified relief the
applicants seek is the declaration of constitutional invalidity as sought in prayer (a). The
new facts they rely upon is the alleged expiry of the term of the SCM’s DMS. In prayer
(c), they seek an order compelling the Commission to recognize this purported
development and ensure that SCM elections are held to appoint a new DMS.

Points in limine
Jurisdiction
[16] The Commission correctly points out that the jurisdiction point in limine is primarily
only live between Mr Februarie and Mr Phillips as this application involves a factional
leadership dispute within SCM. It asserts its duty to remain independent and impartial
and to strengthen constitutional democracy and promote democratic electoral processes.
Consistently with this Court’s ruling in the first SCM judgment, correctly so, the
Commission persists in its refusal to get embroiled in the resolution of a dispute involving
two leadership factions within the SCM. It correctly asserts that this Court may not grant
an order compelling it to act against its constitutional mandate. It only has a duty to
implement this Court’s order to the extent it has resolved the factional leadership dispute.

[17] The applicants have approached this Court on contradictory terms. Although in
paragraph 17 of their founding affidavit, they state that they bring the application in terms
of s 20(2)(a) of the Electoral Act. In paragraph 19, they state that they seek a review of
the decision the Commission communicated to them on 9 June 2023. They also state that
the Supreme Court of Appeal being the seat of the Electoral Court has jurisdiction to
determine the constitutionality of Regulation 9.

[18] The application fails to engage this Court’s review jurisdiction in terms of s 20(1)(a).
It is confined to Commission’s decisions on electoral matters. The 9 June 2023 decision
does not relate to an electoral matter.

[19] The application also fails to engage this Court’s appeal jurisdiction in terms of
s 20(2)(a). In terms of s 20(2)(b), this Court’s appeal jurisdiction is only engaged when
the Chairperson of this Court has granted leave and if the appeal relates to any decision
of the Commission to the extent it relates to the interpretation of any law or any matter for
which an appeal is provided for by law. The applicants have not sought leave from the
Court’s Chairperson.

[20] To the extent that this application relates to a factional leadership dispute and
enforcement of the SCM’s constitution, it engages this Court’s jurisdiction in terms of
s 20(2A). This section provides as follows:
‘(2A) The Electoral Court may hear and determine any dispute relating to membership, leadership,
constitution or founding instruments of a registered party.’
However, given its constitutional and institutional mandate, this is an issue beyond the
Commission’s mandate. On this issue, the Commission has correctly elected not to enter
the fray.

[21] In respect of the Regulation 9 relief, the applicants clearly misconstrue the
jurisdiction of this Court vis a vis that of the Supreme Court of Appeal. The two Courts are
distinct. Bringing this application before this Court does not by default engage the
jurisdiction of the Supreme Court of Appeal simply because it is the seat of the Electoral
Court.

[22] The jurisdiction point in limine stands to fail.

Locus standi
[23] The high court found that Mr Olyn’s decision to suspend and expel Mr Phillips and
the two others SCM members was unlawful, invalid and of no force and effect. Therefore,
Mr Phillips remains the SCM’s duly elected leader. The SCM’s registered particulars at
the Commission still reflect this position.

[24] At paragraph (b) of its order, the high court ruled as follows:
‘It is declared that the first respondent [Mr Februarie] is not authorised to conduct disciplinary
proceedings under the auspices of the fourth respondent [the SCM], and is not authorised to act
in any manner on behalf of the fourth respondent.’

[25] This Court made a similar ruling in the first SCM judgment when it upheld the lack
of locus standi point in limine.

[26] Mr Februarie has elected to ignore the binding authority of this Court and the high
court and asserts his authority to act on behalf of the SCM. He did so by persisting in his
request to the Commission to update SCM’s registered particulars and by bringing this
application. In paragraph 2 of his founding affidavit, he describes himself of a councillor
of the SCM and its duly elected Chairperson when, on the authority of the first SCM and
high court judgments, he is clearly not. He contends that in these two capacities, he is
authorised and/ or qualified to bring this application. He does not set out the source of his
authority which qualified him to bring the application. He is not relying on a written
resolution of DMS leaders, authorising him to bring this application on behalf of the SCM.

[27] He clearly lacks the requisite locus standi to bring this application on behalf of the
SCM.

Res judicata
[28] A res judicata special plea is competent when a dispute involves the same parties,
seeking the same relief and relying on the same cause of action.4 The rationale behind
this principle is founded on public policy which requires that litigation should not be
endless. There ought to be certainty on matters decided by courts by giving effect to the
finality of judgments.

[29] Although in the first SCM application, SCM was the only applicant, Mr Februarie
was the deponent to its affidavits. In this application, SCM and Mr Februarie are co-
applicants. Therefore, substantively, the parties in the two applications are the same.

[30] As already observed, notwithstanding that in this application, the applicants rely
on the expiry of SCM’s DMS as a purported development since the SCM judgment was
rendered, the two applications are grounded on the same cause of action, namely, the
ongoing leadership dispute within SCM.

[31] In the first SCM application, SCM unsuccessfully sought an order compelling the
Commission to update its proportional representatives list. It matters not that this Court
did not deal with the merits of the first SCM application. It recognized the pending high
court application when it upheld the lis pendens point in limine. That application has
resolved the SCM leadership dispute. In this application, the applicants essentially seek
the same relief they sought in the SCM application notwithstanding that Mr Februarie has
been found to lack locus standi in the first SCM judgment. Further, the high court did not
resolve in his favour the leadership dispute that forms the basis of the compelling orders
the applicants seek against the Commission in this application.

4 Molaudzi v S (CCT 42/15) [2015] ZACC 20 paragraph 14.

[32] To the extent that the order referenced in 3(a) is different from the orders sought
in the first SCM application and the applicants seek it on appeal to this Court, as already
determined, this matter is not properly before this Court because the Chairperson’s leave
has not been sought in terms of s 20(2)(b). Further, it is not the applicants’ case that the
Commission has misinterpreted Regulation 9 when it refused to update the SCM’s
registered particulars.

[33] The effect of the orders sought in this application is essentially the same as that
SCM sought in the first SCM application.  This point in limine stands to be upheld.

Urgency
[34] Mr Phillips contends that the applicants fail to meet the requirements for urgency.
He alleges that the events giving rise to the application occurred in January 2022. The
applicants have not explained their delay in bringing it. They have also not explained why
they cannot be afforded substantive redress at a hearing in due course.

[35] But the applicants do not rely on the Commission’s January 2022 decision. The
Commission’s decision the applicants are impugning was taken on 9 June 2023. The
applicants brought the application within three days of that decision as required in terms
of s 20(1)(b) read with Rules 5(1), 6(1) of the Electoral Court Rules. Therefore, there is
no merit in this point in limine. It stands to be dismissed.

The Merits
The Constitutionality of Regulation 9
[36] Mr Februarie alleges that when it refused to amend SCM’s registered particulars,
the Commission violated his political rights in terms of s 19(1)(b) of the Constitution. This
section entrenches the right of every citizen to make political choices, including
participating in the activities of or recruiting members for a political party. Accordingly,
Regulation 9 is unconstitutional as it limits his rights to exercise his political rights.

[37] The Commission derives its mandate from the Constitution and from the Electoral
Act. It is one of the institutions established in terms of Chapter 9 of the Constitution to
strengthen South African’s democracy. Section 181(2) of the Constitution entrenches its
constitutional independence. It is subject only to the law, must act impartially and exercise
its functions without fear, favour or prejudice.

[38] The impugned Regulation as amended advances democracy by setting out
provisions that enable the Commission in the administration of its constitutional and
statutory obligations. It does not prevent members from exercising their political rights. It
rather protects the Commission by ensuring that it is not drawn into internal party disputes.
It also protects political parties by ensuring that unelected factions do not amend the
party’s registered details.

[39] Where party members are embroiled in an internal party dispute that adversely
affect the exercise of their political rights, they enjoy the right in terms of s 34 of the
Constitution to have that dispute resolved through the courts. The resolution of internal
party disputes is beyond the scope of the Commission’s constitutional and statutory duties
and powers. In the first SCM application which Mr Februarie purportedly brought in his
representative capacity, he unsuccessfully exercised his s 34 rights. He has not exercised
his right in terms of s 34 to appeal that decision.

[40] The Commission’s 9 June 2023 decision is consistent with the first SCM and high
court judgments and the Commission’s constitutional and statutory obligations to act
independently and impartially when it administers the registration of political parties as
part of its constitutional mandate to manage national and municipal elections. The
Commission’s 9 June 2023 decision does not constitute a violation of Mr Februarie’s
s 19(1)(b) rights. Mr Februarie is remiss to attempt to wiggle his way out of that the first
SCM and high court judgments by bringing this application.

The Commission’s duty to register and maintain a Register of Parties
[41] The Commission has a duty in terms of s 5(1)(f) of the Electoral Act to maintain a
register of political parties. The amendment of a party’s registration particulars is
regulated by Regulation 9. It requires that the registered leader of the party notifies the
Chief Electoral Officer of changes in the party’s registered particulars within 30 days of
the change. Since Mr Februarie and Mr Olyn are not the SCM’s registered leaders, they
are not authorised to inform the Commission of changes in the SCM’s registered
particulars. Their requests to the Commission to amend SCM’s registered particulars are
irregular. The Commission has no obligation to act on their requests.

[42] The Commission’s refusal to make changes to the SCM’s registered particulars is
consistent with s 5(1)(f) of the Electoral Act read with Regulation 9. It is therefore lawful.
In its 9 June 2023 letter to Mr Februarie, it notified him accordingly stating reasons for its
refusal to act on his requests.

Reconstitution of the SCM District Management Structure
[43] The applicants allege that SCM is made up of management structures in terms of
clause 4.4 of its Constitution, which provides for its autonomy in representation and
decision-making. Their claim that its DMS structure has expired is an after-thought,
conjectured to evade the first SCM and high court judgments. It is badly made and lacks
particularity. The applicants have not set out any new facts to sustain any finding relating
to a leadership dispute or the enforcement of Constitution. In that regard, there is no lis
for this Court to resolve.

[44] In any event, Mr Olyn’s 31 May 2023 request to the Commission was not premised
on this issue. He contended that the high court judgment paved the way for the
Commission to implement their January 2022 request. This is clearly incorrect. The high
court judgment is not authority for the amendment of the SCM’s registered particulars to
remove Mr Phillips as the party leader.

Costs
[45] For reasons that follow, I proposed a punitive cost order against Mr February. My
bother Zondi JA prepared a well-articulated dissenting opinion, proposing that no order
as to costs is made. I have considered Judge Zondi’s dissenting opinion and remain
unpersuaded that a departure from the trite approach to cost in Electoral Court matters is
not warranted under these circumstances.

[46] Ordinarily, to encourage parties to exercise their political rights, this Court does not
grant costs orders. However, Mr Februarie’s conduct warrants a departure from this
practice.

[47] It is trite that in awarding costs, the Court has a discretion to be exercised judicially
upon a consideration of all the facts in each case and the exercise of a discretion is a
matter of fairness to all side.5 When exercising its discretion in respect of costs, the Court
considers the circumstances of each case, carefully weighing the issues, the conduct of
the parties and any other circumstance that may have a bearing on costs and make an
order that is fair between all the parties.6

[48] For the reasons that clearly appear in this judgment, not only does Mr Februarie
lack locus standi, the locus standi issue is res judicata. As earlier pointed out, these two
issues alone are dispositive of the application. Mr February brought the first SCM
application. He should have appealed the first SCM judgment if he considered it to be
wrongly decided. Instead, he continues to purport to act on behalf of SCM when two
courts have ruled that he lacks the authority to do so, thus abusing its legal entity.  In
addition, there is absolutely no merit in the application. The relief he seeks against the
IEC in terms of s5(1)(f) would compel the IEC to act contrary to its constitutional mandate
and is wholly incompetent. The high court judgment disposed of the SCM leadership

5 Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council (Johannesburg
Administration) 1999 (1) SA 104 (SCA) at 109A-B.
6 See Erasmus Superior Court Practice [Service 7, 2018] at D5-6 and all the cases cited there.

dispute. Mr Februarie sought the IEC to act contrary to that judgment. No case is made
out to compel the IEC to get embroiled in the implementation of the SCM Constitution.
The constitutional attack to Regulation 9 appear to be a contrived after-thought. As
pointed out by the EIC, Mr Februarie is essentially seeking the same relief he sought in
the first SCM application.

[49] The application also constitutes an abuse of this Court’s process and a waste of
its judicial economy and the opposing respondents’ resources. They have incurred legal
costs opposing an application that should not have seen the light of the day had
Mr Februarie accepted the binding authority of the first SCM and high court judgments.

[50] It would be unfair to leave the opposing respondents out of pocket under these
circumstances. A punitive cost order is the most appropriate way of censoring
Mr Februarie’s conduct to ensure that in future he does not abuse the SCM’s legal entity
and this Court’s process. Since he lacks the authority to bring the application, SCM should
not be saddled with the costs of the application. Mr Februarie should bear the costs
personally.

_______________________
L T Modiba
Judge
Electoral Court

Zondi JA (Shongwe AJ, Prof Ntlama-Makhanya and Prof Phooko)

[51] I have read the judgment prepared by Modiba J. I agree that the application should
be dismissed for the reasons that she has set out. However, I disagree with my

colleague’s costs order and the reasoning as set out in paragraphs 45 to 50 of the
judgment, namely that the first applicant should be ordered to pay the respondents’ costs
on a punitive scale. My colleague correctly states that ordinarily, to encourage parties to
exercise their political rights, this Court does not grant costs orders but deviated from this
principle on the basis that the application constitutes an abuse of this Court’s process.

[52] It is correct that the award of costs is a matter which is within the discretion of the
court considering the issue of costs. This discretion must be exercised judicially having
regard to the all the relevant considerations. One of such consideration is the principle
that in general in this Court an unsuccessful party ought not to be ordered to pay costs
let alone costs on punitive scale. But this is not an inflexible rule and it can be departed
from where there are strong reasons justifying such departure such in instances where
the litigation is frivolous or vexatious. For the reasons that follow the facts in this matter
do not warrant a departure from the general principle and therefore I would dismiss the
application with no order as to costs.

[53] First, the first applicant is not legally represented in these proceedings and has, as
a result, inelegantly pleaded his causes of action. The fact that his claims are inelegantly
pleaded ought not be used as a basis to non-suit him with costs either on a party and
party scale or on a punitive scale. Purporting to represent the second applicant, the first
applicant brought this application seeking various forms of relief. In Part A he sought an
order to compel the Commission to revise the recorded particulars of the second applicant
following a change in its leadership and management structure in terms of it constitution.
In Part B the first applicant sought an order declaring that the term of the DMS has expired
in terms of clause 5.4 of the second applicant’s constitution. This is essentially a
leadership dispute which engages the jurisdiction of this Court under s 20(2A) of the
Electoral Act. That being the case, there can be no basis for a finding that in relation to
this aspect of the first applicant’s case the first applicant has abused the court process by
bringing the application. Had the claim based on s 20(2A) been properly pleaded there is
no doubt that this Court would have entertained it.

[54] Second, this is a litigation between the Commission and the applicants. The
applicants contend, among other things, that the Commission’s refusal to accept and
implement changes to the second applicant’s structure in accordance with its constitution
violates their political rights under s 19(1)(b) of the Constitution. This is a constitutional
litigation and in terms of Biowatch Trust v Registrar Genetic Resources and Others7 in
general, the first applicant ought not be ordered to pay costs of the Commission unless
the proceedings are frivolous and vexatious. In Part C the first applicant sought a
declaration that Regulation 9 of the Regulations is unconstitutional and is of no effect and
that this Court should order that a request made by a contact person suffices. The
challenge is based on the provisions of s 19 of the Constitution. It cannot be said that in
bringing this challenge albeit at the wrong forum, the first applicant acted frivolously. He
asserted that after the expiry of the term of DMS the Commission was legally obliged of
being informed of that fact to amend the registered particulars of SCM in its possession
so as to reflect the correct position.

[55] In the result, I would dismiss the application with no order as to costs.

Order
[56] In the premises, the following order issues:
1. The application is dismissed with no order as to costs.

_______________________
D Zondi
Chairperson
Electoral Court

7 Biowatch Trust v Registrar Genetic Resources and Others 2009 (10) BCLR1014 (CC).

Appearances:

For Applicants:

R Februarie (in person)

For 1st Respondent:
R S Patel

DMO Attorneys, Bryanston

For 2nd Respondent:
M G Pino

MPI Inc., Kimberley