WALLIS AJ
The Electoral Court’s jurisdiction
[37]
This was not addressed by the parties, but was raised in the course of the
hearing. Neither party suggested that the Electoral Court lacked jurisdiction, but the
grounds therefor need to be considered, because they will determine whether it was
able to deal with the issues raised by the applicants and the scope of its powers in
doing so. In response to this Court’s query, counsel for the applicants submitted that
the case was brought in terms of section 56 of the Electoral Act. But that cannot be
accepted, because, in the case of municipal elections, the provisions of the Municipal
Electoral Act govern the proceedings. The provisions of the Electoral Act apply only
where they are made applicable by a provision of the Municipal Electoral Act. 28 That
is not the case with section 56. The source of the Electoral Court’s jurisdiction in this
matter must therefore be sought elsewhere.
[38]
The consideration of the jurisdiction and powers of the Electoral Court should
commence with the Commission Act under which the Electoral Court was established.
It is established for the whole of the Republic of South Africa with the status of the
High Court.29 Its chairperson must be a judge of the Supreme Court of Appeal.30 It
has two other members who are judges and two who are South African citizens.31 Its
powers, duties and functions are spelled out in section 20. As regards the ambit of its
jurisdiction this is defined in section 20(1), which reads that “[t]he Electoral Court
may review any decision of the Commission relating to an electoral matter”. If the
Electoral Court had jurisdiction in this case, it is in this provision that one would
expect to find it.
28
Section 3(2) of the Municipal Electoral Act. See also African Christian Democratic Party v Electoral
Commission and Others [2006] ZACC 1; 2006 (3) SA 305 (CC); 2006 (5) BCLR 579 (CC) at para 15.
29
Section 18 of the Commission Act.
30
At the time Justice KK Mthiyane and now Justice JBZ Shongwe.
31
Section 19(1) of the Commission Act.
22