Phasha and Others v The Electoral Commission of South Africa and Others (008/21 EC) [2022] ZAEC 1 (3 January 2022)

Phasha and Others v The Electoral Commission of South Africa and Others (008/21 EC) [2022] ZAEC 1 (3 January 2022)

The application was dismissed due to multiple fatal procedural defects, including failure to cite and serve all relevant parties, particularly the majority of municipalities and interested political parties. The urgency was found to be self-created, with no explanation for the delay in launching the application. The applicants failed to establish any substantive basis for their claims, as the Electoral Commission acted pursuant to a valid High Court order and did not remove any applicants as councillors. The abuse of court process and breach of rules further warranted dismissal.

Citation
[2022] ZAEC 1
Parties
Applicant: Phumzile Selda Phasha; Applicant: Lesiba Lekgoathi; Applicant: Monuabisi Zulu; Applicant: Keneth Mlungisi Bafo; Applicant: Nkoto Richard Moaka; Applicant: A M Mohlala; Applicant: Mohlakore Morakane Mopedi; Applicant: Buyiswa Josephine Thwala; Applicant: Napoleon Webster; Applicant: Nomaqala Alina Tlelima; Applicant: Frans Phuti Ngoetjana; Applicant: Persons whose name appear on the list 12th to 257th Applicants; Respondent: Electoral Commission of South Africa; Respondent: Simon Mamabolo N O; Respondent: Narius Moloto N O; Respondent: Phillip Dlamini N O; Respondent: Ntsiri Shadrack Pooe; Respondent: City of Ekurhuleni; Respondent: City of Tshwane; Respondent: City of Cape Town; Respondent: Intsika Yethu District Municipality; Respondent: Great Tubatse Municipality
Court
Electoral Court
Jurisdiction
South Africa
Judgment Date
3 January 2022
Case Number
008/21 EC
Procedural Posture
Urgent Application / Ex Tempore Judgment After Hearing on 29 November 2021
Outcome
Application dismissed.
Judges
Mbha JA, Moshidi AJ, Ms Pather
Legal Topics
Electoral Disputes, Urgency and Abuse of Process, Joinder and Service, Court Rules, Municipal Elections
Administrative Law Civil Procedure Electoral Disputes Urgency and Abuse of Process Joinder and Service Court Rules Municipal Elections

Case Brief

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Parties

Phumzile Selda Phasha

Applicant

Lesiba Lekgoathi

Applicant

Monuabisi Zulu

Applicant

Keneth Mlungisi Bafo

Applicant

Nkoto Richard Moaka

Applicant

A M Mohlala

Applicant

Mohlakore Morakane Mopedi

Applicant

Buyiswa Josephine Thwala

Applicant

Napoleon Webster

Applicant

Nomaqala Alina Tlelima

Applicant

Frans Phuti Ngoetjana

Applicant

Persons whose name appear on the list 12th to 257th Applicants

Applicant

Electoral Commission of South Africa

Respondent

Simon Mamabolo N O

Respondent

Narius Moloto N O

Respondent

Phillip Dlamini N O

Respondent

Ntsiri Shadrack Pooe

Respondent

City of Ekurhuleni

Respondent

City of Tshwane

Respondent

City of Cape Town

Respondent

Intsika Yethu District Municipality

Respondent

Great Tubatse Municipality

Respondent

Procedural Posture

Urgent Application / Ex Tempore Judgment After Hearing on 29 November 2021

Legal Issues

  1. 1 Whether the application was procedurally and substantively defective.
  2. 2 Whether the applicants established that the local government elections were not free and fair in the cited municipalities.
  3. 3 Whether the Electoral Commission acted unlawfully in registering candidates.

Ratio Decidendi

The application was dismissed due to multiple fatal procedural defects, including failure to cite and serve all relevant parties, particularly the majority of municipalities and interested political parties. The urgency was found to be self-created, with no explanation for the delay in launching the application. The applicants failed to establish any substantive basis for their claims, as the Electoral Commission acted pursuant to a valid High Court order and did not remove any applicants as councillors. The abuse of court process and breach of rules further warranted dismissal.

Court Disposition

Application dismissed.

Orders

  • The entire application is dismissed.
  • There is no order as to costs.