WALLIS AJ
is not to be stultified by a resort to undue literalism and too careful a parsing of
statutory language.34
[41]
This construction is strengthened by considering what is encompassed by a
power of review in this context. In ordinary language, it is a power to reconsider and,
if necessary, replace the decision of the IEC. It is not a narrow appeal power, bound
to a record, where the court decides merely whether on that record the decision was
right or wrong. Nor is it the even narrower review power, where the process through
which the decision was taken is scrutinised, but the merits of the decision are not
considered. Instead it is the widest possible type of review where the decision in
question is subjected to reconsideration, if necessary on new or additional facts, and
the body exercising review power is free to substitute its own decision for the decision
under review.35 It is notable that section 56 of the Electoral Act contemplates that any
serious irregularity concerning any aspect of an election may be brought before the
Electoral Court, whether arising under section 55 of the Electoral Act, which provides
for an appeal to the Electoral Court, or otherwise. On the face of it, the jurisdiction of
the Electoral Court to deal with such an irregularity must arise under section 20(1)(a)
of the Commission Act. It could not effectively exercise that jurisdiction unless the
review power under that section is as described above.
[42]
The jurisdiction to review any decision of the IEC relating to an electoral
matter affords the Electoral Court a power of judicial oversight over the activities of
the IEC. The Electoral Court can examine any decision by the IEC and substitute it
with its own. The range of electoral matters may be great. Certainly all the issues
arising in the present case relate to electoral matters. They concern who may vote and
whether all those who voted were entitled to do so. They also concern the ability of
34
See Chirwa v Transnet Ltd [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251 (CC) at paras 47-54
and 101-113 and Gcaba v Minister of Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1)
BCLR 35 (CC) (Gcaba) at para 57.
35
Tikly v Johannes NO 1963 (2) SA 588 (T) at 590G-591A and Road Accident Fund v Duma & Three Similar
Cases [2012] ZASCA 169; 2013 (6) SA 9 (SCA) at para 26. Although the statutes in those cases dealt with the
appellate powers of the tribunal, the delineation of the various manifestations of that power is equally applicable
to an analysis of the nature of a general power of review.
24