REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT, BLOEMFONTEIN

CASE NO:002/11 IEC

In the matter between:

NATIONAL PEOPLES PARTY

Applicant

and

THE ELECTORAL COMMISSION

Respondent

Neutral Citation: National Peoples Party v The Electoral Commission (Case
no 002/11 IEC) [2011] ZAEC 3 (21 April 2011)

SUMMARY
Election law – Municipal elections – s 11 of Local Government:  Municipal
Electoral Act 27 of 2000 – Time-table for management of elections by
Electoral Commission – Strict adherence - Cut-off date and time for
submission of documents – Party representative entered building of
commission with necessary documents and deposit within time limit – Refusal
to accept documents at office as cut-off time allegedly lapsed – Allowance for
minimal time difference should be made as opposed to inflexible approach -
Constitutional values and dictates should be adhered to in the circumstances
– Application of s 2 of Act and s 1 (d) of Constitution – Party found to have
complied with Act and therefore entitled to contest the forthcoming election.

______________________________________________________________

J U D G M E N T
______________________________________________________________

PILLAY, J:

[1] Municipal elections in South Africa have been set for 18 May 2011 and
are regulated by the Local Government:  Municipal Electoral Act 27 of 2000
(‘the Act’).  They are to be managed by the Electoral Commission
(`Respondent’) established in terms of the Electoral Commission Act 51 of
1996.

[2] In terms of section 11 of the Act, the respondent compiled a time-table
(`time-table’) which regulates, inter alia, the submission of certain documents
and necessary payments to the respondent by certain specified dates and
times.    Compliance therewith secures a registered party the right to
participate in the elections.

[3] The respondent caused the time-table for these elections to be
published in GOVERNMENT GAZETTE NO 34114 of 11 March 2011, under
NOTICE No. 134 of 2011.

[4] It is common cause that the respondent had set the cut-off date and
time for the submission of notices of intention to contest the elections as well
as candidate lists and the deposit of necessary payments at 17h00 on 25th
March 2011.

[5] The applicant is a duly registered party with its registered office at 12
Riverside Terraces, Hout Bay, Western Cape.  It is desirous of contesting the
Local Government Election for the City of Cape Town (Category A Metro)
Local Election.

[6] On 25th March 2011, intending to comply with the time-table, and
carrying an envelope containing the necessary documents and a bank
guaranteed cheque, the chairman of the applicant party, Badih Jamil
Chaaban, entered the parking lot of the building at 304 Durban Road, Bellville,
where the respondent’s offices are located on the first floor.  He did so before
17h00 on 25 March 2011.  He then entered the building in question and met
an official of the respondent at the front door.  This official is identified as one
Shireen Adams who told him to “relax, don’t panic, you’ve made it”.  This was
witnessed by one Monwabisi Magadla who deposed to an affidavit confirming
it.

[7] Having entered the building and accepting that he had `made it’, he
proceeded to the first floor to submit the aforesaid documents.  He entered
the office through the door which was half open.  When he attempted to
submit the documents in the respondent’s office, he was told by a Mr
Sampson, the respondent’s representative, that the documents could not be
accepted as the 17h00 deadline had already passed.
[8] On Monday, 28th March 2011, applicant, through its attorneys, sent a
letter by telefax to the respondent requesting that the documents be accepted.
The respondent did not respond to it.

[9] The urgent application launched by the applicant, is couched in what
appears to be one for an interdict to compel the respondent to accept the
aforesaid documents and to be treated as any other party who has complied
with the rules, alternatively, it seeks to have the decision of the respondent
reviewed and set aside together with other relief intended to cure its
predicament.

[10] In the circumstances, it would be best that this application is dealt with
as a review application.  This is so because at the core of the applicant’s

complaint, is the procedure by which the applicant was dealt with when it
tendered the documents as aforesaid.  More-over, it is the conduct of Mr
Sampson in refusing to accept the documents when they were tendered.

[11] In response to the application, the respondent supports the refusal to
accept the documents tendered by the applicant on the basis that they were
submitted after the cut off time of 17h00 on 25th March 2011.  It explained that
Mr Granville Abrahams is the appointed Municipal Electoral Officer for the City
of Cape Town Municipality.  It is also explained that he had synchronised the
time with the Telkom Electronic Time Services.

[12] The respondent’s case is that at exactly 17h00, according to
Abraham’s synchronised time, he announced nominations closed.  It alleges
that it was only some time thereafter, that the applicant’s documents were
sought to be submitted and therefore refused.  Mr Sampson was probably Mr
Abrahams’ subordinate and was merely following instructions.  This is not
clearly set out but nothing turns on it.

[13] The respondent further contends that the applicant’s woes were self-
inflicted by reason of the party officials not doing the necessary in good time -
between 11 March 2011 and 25 March 2011.

[14] The respondent also contends that it never took the decision (as
envisaged by section 20 (1) (a) of the Electoral Commission Act 51 of 1996),
which the applicant seeks to be reviewed by this court, and the application
should therefore be dismissed.  The import of this contention is that the
applicant is not entitled to have a decision of an official taken on review by this
court but only a decision taken by the Commission in terms of section 20 of
the Electoral Commission Act 51 of 1996.

[15] The first contention is impudent and simply lacks respect for the
applicant’s rights.  It is not capable of being sustained.  The fact of the matter
is that the time-table had been established and requirements can be fulfilled
at anytime within the confines of that time table.  That a particular party or
person chose to comply therewith at the last minute does not detract from the
right to participate in the election or exercising the right to do so.  To suggest
that the applicant has only itself to blame and that the chairman would not
have had to rush if the requirements had been complied with long before, is

not helpful.  The applicant was entitled to submit the documents at any time
before 17h00 on 25 March 2011.

[16] Furthermore, the contention that this application does not deal with a
decision of the respondent because it did not take a decision, is incorrect.
The respondent responded to the applicant’s application and the nature of it’s
response is to support the actions of its official(s) to refuse to accept the
documents tendered by the applicant on the basis that it was too late.  It is
clear that the situation had been discussed by it and it had decided to uphold
and confirm the decision of the official(s).

[17] In addition, the letter sent to the respondent seeking that it reverse the
decision of the official was not responded to it.  This failure to respond, in light
of the urgency of the matter, can only be construed as having decided to
support the decision of the official.  This is fortified by the respondent’s
attitude in this review.

[18] The respondent does not dispute that Shireen Adams is an official in its
employ and acted on its behalf.  Neither is it in dispute that she indicated that
Chaaban was in time to submit the documents nor that he was in the building

within the time limit.  That she did so, is also supported by Monwabisi
Magadla, a representative of another political party.  This is also not disputed
by the respondent.  Absent anything to the contrary, it must be accepted that
the chairman of the applicant was in the building housing the respondent
before the cut-off time.

[19] More importantly, he was in the building where the documents were to
be submitted prior to 17h00 on 25 March 2011.  Having had to make his way
up to the first floor would have taken up crucial moments.  Had he been
required to submit the documents on the ground floor where he met Adams,
he would conceivably have submitted the documents in time because he
would not have had taken the extra time to proceed to the first floor.

[20] It is not practical to synchronise all clocks and watches, or any time-
keeping mechanism to reflect the same time (to the minute) for everyone.
Some are guided by radio announcements and others by telephone company
synchronisation or television announcements and so forth.

[21] `Time’ will therefore generally differ from person to person and from
place to place.  It would be unreasonable to expect otherwise and to adhere

to one of those times on the assumption that it is the correct time.
Consequently, it was unreasonable for Abrahams to measure the time so
strictly, particularly when others might have synchronised their time with some
established time measure, other than that of Telkom and especially when it is
a matter of minutes or even seconds.

[22] Chaaban alleges that he was in time and the respondent contends that
he was not.  What is clear is that the difference is a matter of a few minutes, if
not seconds.  So even if Chaaban was late, it would only have been by a few
minutes at most.  In view of the conclusion herein, it is not necessary to
determine who is correct or who is telling the truth.  Even if the applicant
attempted to submit the documents after 17h00, it would have been moments
after – the respondent’s staff were still in the office and Adams was still on
duty.

[23] The purpose of the time-table is to facilitate the smooth running of the
election process.  It is intended to allow the administration of elections to
proceed without disruption and for officials to properly prepare for the election
by, inter alia, the announcement of the contesting parties and candidates and
preparation and distribution of ballot papers to mention a few aspects.  It also

serves to avoid unfair advantage, occasioned by late entry, to a particular
party (or candidate).  Most of all, it is intended to allow time for the voter to be
timeously informed of everything he or she has to be aware of before casting
a vote, for example who is participating in the election, which party is
represented in a particular ward, and which individuals are running for election
in a particular municipality.

[24] Adherence to the time table is peremptory since certain requirements
have to be complied with within the time limits stipulated in the time-table in
order to properly prepare for the elections.

[25] In LIBERAL PARTY V THE ELECTORAL COMMISSION AND
OTHERS 2004 (8) BCLR 810 (CC), the appellant, a registered party was late
in submitting its candidates list.  The deadline was set at 17h00 on 27
February 2004.  It tendered the list at 17h21 on 27 February 2004.  It was
held that the “applicants’ inability to contest the forthcoming elections,
therefore, arises solely from its failure to comply with the mandatory
provisions of the electoral Act and regulation, ….”

[26] The minimal difference in the time lends itself to a more tolerant
approach in this matter rather than an inflexible application of the regulations,
so as to facilitate participation in the election.  Allowance for this time
difference should be made.  The fact that Chaaban was already in the building
before the cut-off time is also not insignificant.  Such an approach is
supported by the dictates of the Constitution of the Republic of South Africa,
1996 (`the Constitution’).

[27] The application of the time-table, as with the Act, must then also fall
within the spirit of our constitutional values.  These values clearly encourage
participation in democratic elections.  Section 2 of the Act provides that:
“2
Interpretation of this Act.
Any person interpreting or applying this Act must -
(a)  do so in a manner that gives effect to the
constitutional
declarations,
guarantees
and
responsibilities contained in the Constitution; and
(b)  take into account any applicable Code.”

[28] Section 2 of the Act clearly compels that the interpretation and
application of the Act (and indeed any regulation which flows from it) must be

guided by giving affect to the constitutional declarations, guarantees or
responsibilities appearing in the Constitution and any applicable code.

[29] Furthermore, Section 1 of the Constitution reflects as one of its
founding values:
“… (d)
Universal adult suffrage, a national common
voters roll, regular elections and a multi-party
system of democratic government, to ensure
accountability, responsiveness and openness.”

[30] In AUGUST AND ANOTHER V ELECTORAL COMMISSION AND
OTHERS 1999 (3) SA 1 (CC) PARA 17 Sachs J (as he then was), stated the
following:

“Universal adult suffrage on a common voters’ roll is one of
the foundational values of our entire constitutional order.  The
achievement of the franchise has historically been important
both for the acquisition of the rights of full and effective
citizenship by all South Africans regardless of race, and for
the accomplishment of an all-embracing nationhood.  The

universality of the franchise is important not only for
nationhood and democracy.  The vote of each and every
citizen is a badge of dignity and of personhood.  Quite literally,
it says that everybody counts.  In a country of great disparities
of wealth and power it declares that whoever we are, whether
rich or poor, exalted or disgraced, we all belong to the same
democratic South African nation;  that our destinies are
intertwined in a single interactive polity.  Rights may not be
limited without justification and legislation dealing with the
franchise must be interpreted in favour of enfranchisement
rather than disenfranchisement.”

[31] Consequently, the interpretation of the time-table must gel with its
legislative purpose.  It must be applied in such a way that it facilitates
participation instead of limiting participation, as envisaged by the Constitution
and the values upon which the latter is based.

[32] This matter is not unlike AFRICAN CHRISTIAN DEMOCRATIC
PARTY v ELECTORAL COMMISSION AND OTHERS 2006 (3) SA 305
(CC).  It concerned the application and interpretation of sections 14 and 17 of

the Act.  The particular problem arose when the applicant had paid a lump
sum deposit as allowed by the Commission, to its Pretoria office, in respect of
all the municipalities it intended to contest in the wider Cape Town Metropole.
The applicant omitted to include the name of one of the municipalities in which
it intended to compete for seats viz Cape Town Metro on the allocation
schedule that accompanied the payment, while it was included on the party
list of municipalities it intended to contest.  When the party list was finalised
after the cut-off date and time, it differed from the allocation schedule
submitted with the payment in that the applicant had by then decided not to
contest certain elections and officially withdrew from those elections.  The
applicant was thereafter informed that no deposit was made in respect of the
Cape Town Metro.  Despite having sufficient surplus funds which resulted
from the withdrawal of contesting certain elections, the respondent refused
the request by the appellant to allocate funds from its surplus to cover the
deposit for the Cape Town Metro on the basis that sections 14 and 17 of the
Act were preamptory and that it did not have the power to condone non-
compliance with the provisions.  The Electoral Court entertained proceedings
in regard thereto, and in effect upheld the decision of the Commission.  It is
that decision which was taken on appeal to the Constitutional Court.

[33] O’Regan J, (as she then was) dealt with the issue and concluded that
little purpose would be served by a narrow interpretation of section 14 and 17
of the Act.  Furthermore, that a more generous interpretation to hold that
section 14 and 17 have been met, as opposed to a strict one, would not harm
any other party or candidate.  She found that the failure to timeously inform
the respondent to allocate part of the surplus for the Cape Town Metro
election would serve no legitimate purpose.  I am in respectful agreement with
her approach to the interpretation and application of section 14 and 17 of the
Act.

[34] I now turn back to the application at hand.

[35] Sampson and/or Abrahams clearly did not adopt this approach when
refusing to accept the applicant’s documents.  Neither did the respondent
when it considered and upheld his actions.

[36] Mr Sampson’s actions were clearly unreasonable because even if the
submission of the applicant’s documents was late (which is not necessarily
the case), it missed the deadline of 17h00 by very little time.  Further, the
representative of the applicant was in the building before 17h00 and it seems

to me that in such circumstances the refusal to accept the documents and
payment is unreasonable and its effect is contrary to the aforesaid
constitutional values.

[37] The circumstances are such that a margin of error in time as referred to
above ought to have been factored in when considering the approach to be
adopted instead of adopting such an inflexible position based on the time
relied upon by the commission.

[38] While it must be recognised that the time-table is to be adhered to, it is
hardly likely that any subsequent steps as set out in the time-table would have
been commenced with when the applicant’s documents were tendered.  No
harm would have been caused by him accepting the documents when it was
tendered even on the assumption that it was after 17h00 on the 25 March
2011, because it would not have resulted in any disadvantage or prejudice to
anyone.  The respondent would not have been inconvenienced thereby
because the next segment of the process of preparing for the election had not
yet started, for example starting to check the documents and informing parties
and candidates of outstanding or faulty documents.

[39] In the circumstances, the respondent’s (and that of Abrahams and
Sampson) strict and inflexible application of the time table was unreasonable
in the circumstances and contrary to its legislative purpose.

[40] In the aforegoing, the respondent’s decision to refuse to accept the
applicant’s documents falls to be reviewed and set aside and replaced with
the order issued on and reads as:

1.
That the decision of the respondent on or about 4th April 2011 in
support of

the decision of its official, Mr Sampson,
taken on 25th April 2011 to refuse to

accept
the
documents of the applicant, is hereby reviewed and set aside;

2. (a)  It is declared that the applicant has timeously complied with all
the requirements as set out in sections 14 and 17 of Act 27 of
2000 in order to contest Local Government Elections for the City
of Cape Town - Category A Metro Local Election, scheduled for
18th May 2011 and tendered on 25th March 2011 by the
applicant;

(b)
The respondent is directed to accept the said documents
and to forthwith:

(i)
place the applicant’s name on the list of the
registered parties entitled to contest the said
elections;

(ii) place the candidates of the applicant for the various
wards in the said elections on the final list of
candidates.

________________________________
PILLAY J

JUDGE OF THE ELECTORAL COURT

CONCURRED:
MTHIYANE JA
MASIPA J

Date: 21 April 2011