WALLIS AJ
candidates to ascertain who their electorate is and to canvass for support. These
matters are fundamental to the electoral process and the conduct of free and fair
elections.
[43]
In addition to this broad power of review, the Electoral Court may hear an
appeal against any decision of the IEC insofar as that decision involves a question of
law or is provided for in any law.36
The latter includes appeals in terms of
section 55(5) of the Electoral Act and section 65(9) of the Municipal Electoral Act,
but those as much involve decisions by the IEC on an electoral matter, as do its
decisions on other questions. Nor is clarity to be found in seeking to distinguish
general decisions by the IEC on electoral matters, which are subject to review, from
decisions by it on questions of the interpretation of any law, where an appeal lies with
leave of the chairperson.37 Drawing a clear line of demarcation between these two
powers is not easy. There may be a measure of overlap between the two functions.
But that is not a reason to restrict the scope of the power of review under
section 20(1)(a). Rather it is indicative of a situation where certain specific matters
involving questions of the interpretation of laws and challenges to the outcome of
objections lodged with the IEC after elections, in terms of very specific statutory
requirements for objections of that type to be made, are dealt with by processes of
appeal, while all other matters involving challenges to the decisions of the IEC are
pursued under the Electoral Court’s power of review.
[44]
This approach is also consistent with section 78(1) of the Municipal
Electoral Act, which provides that the Electoral Court has jurisdiction “in respect of
all electoral disputes” as well as in respect of complaints about infringements of the
Electoral Code of Conduct issued under the Electoral Act.38 In the absence of any
statement that this jurisdiction is by way of appeal, it must be exercised under the
36
Section 20(2)(a) of the Commission Act.
37
Section 20(2)(b) of the Commission Act.
38
Schedule 2 to the Electoral Act.
25