Democratic Alliance and Another v Electoral Commission of South Africa and Others (004/2024EC) [2024] ZAEC 6 (26 April 2024)

Democratic Alliance and Another v Electoral Commission of South Africa and Others (004/2024EC) [2024] ZAEC 6 (26 April 2024)

The court held that the word 'consulate' in section 33(3) of the Electoral Act 73 of 1998 includes consulates headed by honorary consuls. This interpretation is supported by the plain meaning of the term, the context of the legislation, and its constitutional purpose to facilitate voting for all eligible South Africans abroad. Excluding honorary consulates would unjustifiably restrict the right to vote and undermine the constitutional guarantee of free and fair elections. The Electoral Commission and the Department may not decide which consulates may facilitate voting based on administrative preferences. The decision of the Commission to exclude consulates headed by honorary consuls was...

Citation
[2024] ZAEC 6
Parties
Applicant: Democratic Alliance; Applicant: Jerome Searll Swersky; Respondent: Electoral Commission of South Africa; Respondent: Chief Electoral Officer: Electoral Commission of South Africa; Respondent: Minister of the Department of International Relations and Cooperation
Court
Electoral Court
Jurisdiction
South Africa
Judgment Date
26 April 2024
Case Number
004/2024EC
Procedural Posture
Review Application / Judgment After Hearing
Outcome
Application for condonation granted; Commission's decision reviewed and set aside; declaration made regarding the meaning of 'consulate'; no order as to costs.
Judges
Zondi, Adams, Yacoob, Phooko
Legal Topics
Right to Vote, Statutory Interpretation, Electoral Act Section 33, Special Votes, Consular Services
Constitutional Law Administrative Law Right to Vote Statutory Interpretation Electoral Act Section 33 Special Votes Consular Services

Case Brief

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Parties

Democratic Alliance

Applicant

Jerome Searll Swersky

Applicant

Electoral Commission of South Africa

Respondent

Chief Electoral Officer: Electoral Commission of South Africa

Respondent

Minister of the Department of International Relations and Cooperation

Respondent

Procedural Posture

Review Application / Judgment After Hearing

Legal Issues

  1. 1 Whether the word 'consulate' in section 33(3) of the Electoral Act 73 of 1998 includes consulates headed by honorary consuls.
  2. 2 Whether the Electoral Commission's decision to exclude consulates headed by honorary consuls from facilitating special votes is lawful.
  3. 3 Whether eligible voters abroad may cast special votes at consulates headed by honorary consuls.

Ratio Decidendi

The court held that the word 'consulate' in section 33(3) of the Electoral Act 73 of 1998 includes consulates headed by honorary consuls. This interpretation is supported by the plain meaning of the term, the context of the legislation, and its constitutional purpose to facilitate voting for all eligible South Africans abroad. Excluding honorary consulates would unjustifiably restrict the right to vote and undermine the constitutional guarantee of free and fair elections. The Electoral Commission and the Department may not decide which consulates may facilitate voting based on administrative preferences. The decision of the Commission to exclude consulates headed by honorary consuls was...

Court Disposition

Application for condonation granted; Commission's decision reviewed and set aside; declaration made regarding the meaning of 'consulate'; no order as to costs.

Orders

  • The application for condonation for the late filing of the review application is granted.
  • It is declared that the word 'consulate' in section 33(3) of the Electoral Act 73 of 1998 includes a consulate headed by an honorary consul.