The Gauteng High Court has dismissed the application by the newly formed Labour Party seeking an interdict in order to challenge the Electoral Commission (IEC) election timetable ahead of the May polls.
The party argued that it did not have sufficient time to conclude and make submissions to the electoral body as its registration was only finalised on Tuesday.
The Labour Party hauled the IEC to court for an interdict challenging the election timetable and today’s deadline for submissions.
The jurisdiction of the High Court to hear an electoral matter was the main point argued before the Gauteng High Court in Pretoria in the matter between the Labour Party and the IEC.
The newly formed party argued through its counsel, Advocate Kevin Hopkins that the Electoral Court does not have exclusive jurisdiction to hear the matter as the IEC had not made a decision based on a dispute.
Hopkins argued that the only decision made by the IEC was the original administrative decision of establishing an election timetable and it is for this reason that the applicant is seeking an interdict to allow parties to access the portal for a further week.
“The Electoral Court may review a decision of the commission. That’s what it’s there to review a decision. That’s in sub(1). sub(2), it can determine an appeal against a decision of the commission so there’s an important jurisdictional fact here which confers upon the Electoral Court its powers to do something and that is the existence of a decision by the commission. If the commission hasn’t made a decision, then you don’t trigger the exclusive jurisdiction of the court.”
However, this is a view that the respondent disagreed with. Counsel on behalf of the commission argued that the Electoral Court does have the powers to order the IEC to extend the access to the portal.
Advocate Michael Bishop further argued that the Labour Party has taken issue with the original administrative decision of establishing a timetable after the proclamation of the election date.
“The Labour Party could, on the 25th of February, challenge the election timetable. There was no need for there to be an additional decision not to amend. It was free to go immediately to the Electoral Court once the timetable was published but what did the Labour Party do? It did absolutely nothing, nothing. It didn’t write to the commission; it didn’t lodge a dispute with the commission, it didn’t ask the commission what it had done with the letter supposedly sent by other parties. It did nothing until Wednesday when it launched this application.”
This is a view that Judge Omphemetse Mooki agreed with. Mooki continuously questioned Hopkins on why the Electoral Court was not the better forum to ventilate the party’s concerns. The Judge ultimately did not agree that the powers of the Electoral Court are as limited as purported by the party.
“Section 20 of the commission act and section 96 of the electoral act deal with powers, duties, functions and jurisdiction of the Electoral Court. From these provisions as well as the legislative context within which they appear, it is clear that the Electoral Court is intended by the legislature to be a mechanism to deal expeditiously and urgently with reviews of and appeals against decisions of the commission.”
The 2024 general elections will be held on 29 May, while the Labour Party is registered, it is unclear whether it will meet the requirements to contest.
