Mvelase and Another v Electoral Commission and Others (5/2009) [2009] ZAEC 2 (1 January 2009)

Mvelase and Another v Electoral Commission and Others (5/2009) [2009] ZAEC 2 (1 January 2009)

The Electoral Commission failed to make a clear and timely decision on the objection lodged by the appellants regarding the by-election result. The ongoing communication and investigation by the Commission created uncertainty and led the appellants to believe that the decision was still pending. The evidence submitted by the appellants, including affidavits from prospective voters who were intimidated and prevented from voting, was undisputed and demonstrated that the declared result was materially affected. The time limits for appeal should not be strictly enforced in circumstances where the Commission's conduct frustrated the appellants' ability to comply. The Commission should have...

Citation
[2009] ZAEC 2
Parties
Appellant: Njabuliso Robert Mvelase; Appellant: African National Congress; Respondent: Electoral Commission; Respondent: Chief Electoral Officer; Respondent: Lindani Maxwell Mlaba; Respondent: Inkatha Freedom Party; Respondent: Imbabazane Local Municipality
Court
Electoral Court
Jurisdiction
South Africa
Judgment Date
1 January 2009
Case Number
5/2009
Procedural Posture
Civil Appeal / Appeal Against Rejection of Objection to by Election Result
Outcome
Appeal upheld; the Electoral Commission's decision to reject the objection is set aside and substituted with an order rescinding the declared result of the by-election.
Judges
Pillay, Abro, Moodaley
Legal Topics
Municipal Elections, Electoral Objection, Code of Conduct Infringement, Time Limits for Appeal, Rescission of Election Result
Administrative Law Civil Procedure Municipal Elections Electoral Objection Code of Conduct Infringement Time Limits for Appeal Rescission of Election Result

Case Brief

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Parties

Njabuliso Robert Mvelase

Appellant

African National Congress

Appellant

Electoral Commission

Respondent

Chief Electoral Officer

Respondent

Lindani Maxwell Mlaba

Respondent

Inkatha Freedom Party

Respondent

Imbabazane Local Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal Against Rejection of Objection to by Election Result

Legal Issues

  1. 1 Whether the Electoral Commission's failure to make a clear decision on the objection constituted a rejection under section 65(4) of the Municipal Electoral Act.
  2. 2 Whether the objection regarding intimidation and violence materially affected the declared result of the by-election.
  3. 3 Whether the appeal was out of time and if condonation for late filing should be granted.

Ratio Decidendi

The Electoral Commission failed to make a clear and timely decision on the objection lodged by the appellants regarding the by-election result. The ongoing communication and investigation by the Commission created uncertainty and led the appellants to believe that the decision was still pending. The evidence submitted by the appellants, including affidavits from prospective voters who were intimidated and prevented from voting, was undisputed and demonstrated that the declared result was materially affected. The time limits for appeal should not be strictly enforced in circumstances where the Commission's conduct frustrated the appellants' ability to comply. The Commission should have...

Court Disposition

Appeal upheld; the Electoral Commission's decision to reject the objection is set aside and substituted with an order rescinding the declared result of the by-election.

Orders

  • The appeal succeeds.
  • The first respondent's decision to reject the objection is set aside.