Can the Electoral Court withstand the pressures of the elections?

It took 22 days for the Electoral Court to deliver its full reasons in the uMkhonto weSizwe Party v Electoral Commission, which was initially decided on 4 April 2024. The case concerns former president Jacob Zuma’s candidacy for parliament in the upcoming national elections. Some commentators have already criticised the 37-page judgment.

But it’s important to also ask why a court that is meant to act with urgency took three weeks to deliver its full reasons.

But it’s important to also ask why a court that is meant to act with urgency took three weeks to deliver its full reasons. Are there underlying problems with the Electoral Court that should worry us for the upcoming elections?

The status and function of the Electoral Court

The Electoral Court is a specialist court established by the Electoral Commission Act of 1996 to adjudicate electoral disputes and oversee the decisions of the Electoral Commission of South Africs (IEC). In terms of section 18 of the Act, the Court is of equal status, but more limited jurisdiction to the High Court.

The Court hears appeals against decisions of the IEC concerning the application of electoral law, such as the registration of political parties and the eligibility of candidates. It also adjudicates electoral disputes on the counting of votes and breaches of the Electoral Code of Conduct, such as vote rigging.

The Court hears appeals against decisions of the IEC concerning the application of electoral law, such as the registration of political parties and the eligibility of candidates. It also adjudicates electoral disputes on the counting of votes and breaches of the Electoral Code of Conduct, such as vote rigging.

The Court operates on an ad hoc basis and is activated when an electoral dispute is filed. The Court’s operations are currently housed at the Supreme Court of Appeal (SCA) in Bloemfontein, but it may operate anywhere the court’s chairperson deems convenient. It may also refer certain disputes to a provincial division of the High Court.

Because the Court is of equal status to the High Court, its judgments are appealed to the SCA. But in exceptional cases, the Electoral Court’s judgments may be appealed directly to the Constitutional Court. Significantly, in certain disputes, such as a dispute over a vote count, the Electoral Court’s decision is final and no appeal is allowed, even to the highest court in the land.

Unlike other courts, all of the Electoral Court’s cases are inherently urgent.

Unlike other courts, all of the Electoral Court’s cases are inherently urgent. That means it must adjudicate them in the shortest time possible – ideally, days after a hearing, and certainly according to the electoral timetable. Comprehensive reasons must preferably accompany such decisions unless circumstances do not allow.

The Electoral Court’s composition

Because the Electoral Court is an ad hoc court, all five of its members – three judges and two non-judges – serve part-time. The chairperson is a senior judge of the SCA. The current members are Justice Dumisani Zondi as chairperson, Johannesburg High Court Judge Lebogang Modiba, and Fort Hare law professors Nomthandazo Ntlama-Makhanya and Moses Phooko as non-judge members.

There is currently one judge vacancy, which is filled on a rotational basis by acting judges. Currently, these are retired Justice Jeremiah Shongwe, and Johannesburg High Court Judges Leicester Adams and Seena Yacoob.

The court’s strained judicial capacity

The Electoral Court has now gone five years without its full complement of judges, and its judicial capacity is under strain. Its longest-serving members, Modiba, Phooko and Ntlama-Makhanya were appointed only in 2022, and chairperson Zondi last year. The lack of a full corps of permanent members has serious implications for the court’s efficiency and effectiveness.

The Electoral Court has now gone five years without its full complement of judges, and its judicial capacity is under strain.

Electoral law is a complex, niche field of law that also needs a solid grasp of South Africa’s unique political system. The Court plays a crucial role in developing legal principles to guide the law (or jurisprudence) in this field. This is for the benefit of the IEC, political actors, and the credibility of our elections.

Building a coherent, predictable body of jurisprudence is slow and incremental, over many years. It needs judges with longevity and a long-term vision. It also needs judges that can work well together as a team. The lack of a strong team dynamic leads to frequent disagreements (or dissents) over the interpretation of the law.

Among the current members of the Court, only Zondi and Shongwe have the experience of working in five-judge panels of the style frequently used by the Electoral Court. Furthermore, most members have only worked together in the last few months.

It is therefore unsurprising that in the MK v IEC case, there are three different judgments, providing three different interpretations of the meaning of section 47(1)(e) of the Constitution on Zuma’s candidacy in the upcoming elections. This has necessitated the IEC’s appeal to the Constitutional Court for clarification.

Also because of the Electoral Court’s ad hoc nature, it is difficult to get judges to volunteer to serve on the court as either acting judges or permanent judges. Often the Judicial Service Commission (JSC) has struggled to attract more than the bare minimum of candidates to appoint. Between 2019 and 2021, the JSC did not interview any electoral court candidates, leaving three vacancies open (A concern Judges Matter raised before the 2021 local government elections). At its April 2024 session the JSC could not appoint either of the two candidates interviewed.

Historically, most of the court’s members have been drawn from the Johannesburg High Court. This is mainly because the judicial leadership of that court has been willing to sacrifice its judges for the greater good, despite Johannesburg being one of the busiest courts in SA. However, this is unsustainable. Electoral Court judges need to be drawn from all parts of the country, particularly as acting judges.

The Electoral Court’s operational weaknesses

The Electoral Court is also weak in its operations. It has no permanent administrative or research staff. Zondi’s SCA registrar is essentially moonlighting as the registrar of the Electoral Court. Unlike the IEC, the National Treasury has not allocated any additional resources to the Electoral Court to deal with the likely increase in workload of the 2024 election. The Court shares its R72.6 million budget allocation with the Labour Court, the Land Court and the Competition Appeal Court, which all operate nationwide. This is worrying, considering how highly contested the 2024 election has so far been and will continue to be. Indications are that this election could be one of the court’s busiest. There have already been seven judgments this year, compared to five in all of 2023, and 12 in 2022.

The 2024 election is also fraught with both legal and political complexity. Amendments to the Electoral Act allowing independent candidates to run in national and provincial elections are yet to be interpreted. No one can confidently say how the legal mechanisms of votes tallying and allocating parliamentary seats will work, which might open room for disputes. We certainly cannot wait 22 days to know who will go to parliament to elect the president.

So, what must be done to strengthen the capacity of the Electoral Court?

Proposals to build the Electoral Court’s capacity

In the short term, the Office of the Chief Justice must immediately second additional registrars and researchers to assist the Electoral Court. National Treasury must permit the OCJ to temporarily divert its budget to achieve this.

Judges President across the country must immediately permit any willing senior judge, particularly those with appellate judicial experience, to volunteer to act on the Electoral Court until after the elections.

In the long term, the Minister of Justice, in consultation with the Chief Justice and the OCJ, must capacitate the Electoral Court in its operations as required by section 20(8) of the Electoral Commission Act. Going forward, it must be routine for National Treasury to grant a special allocation to the Court to prepare for elections.

While Justice Zondi will lead the Electoral Court into the May election, he leaves in July, when his likely promotion to be deputy president of the SCA kicks in. The JSC must now appoint a leader with a clear vision for how they will build the Electoral Court, including putting in place a cohort of expert judges who will build a coherent jurisprudence for the future.

South Africa must rightly celebrate 30 years of free, fair and expertly-run elections. However, we cannot take this for granted. We need an independent, efficient, and effective Electoral Court.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at the University of Cape Town’s Law Faculty.

A version of this article appeared in the Mail & Guardian (3 – 9 May 2024)