Defeated Independent candidate still has recourse
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Oudtshoorn. 6 December 2012. 11h15. The ruling of Mr Justice Khayelihle Mthiyane, Deputy President of the SCA and Head of the Electoral Court Supreme Court of Appeal in Bloemfontein on Tuesday evening was at best… puzzling.
Especially after the Chief Electoral Officer on Monday advised the Independent candidate for Ward 2, Bitou, Francois Geldenhuys, to aproach the Electoral Court with his complaints of DA campaign misconduct.
That Francois Geldenhuys has reason abundent to be aggrieved by the DA’s mendacious campaigning, is certain.
Mr Justice Mthiyane’s ruling remains somewhat puzzling, especially in light of relevant case law, such as the decision of Scott JA in Mketsu v ANC (2002) JOL 10187(SCA).
Perhaps the following is what Mthiyane had in mind.
He wrote that “alleged breaches of the Code of Conduct are justiciable in the ordinary courts,” and that applicant could “approach the High Court for an interdict or whatever relief they consider appropriate.”
That reflects his assumption that Geldenhuys was relying solely upon s 78 of the MEA, insofar as his complaint had to do with a violation of the Code of Conduct, that was brought in advance of the election result being declared. (This being the s. 78 category.)
On this reasoning, Mthiyane was right that would could have gone to the High Court. There is no reason to think that the High Court lacks jurisdiction under s. 78.
Under the Mketsu decision, the High Court does not, by contrast, have jurisdiction under s 65, which relates to objections “material to the results of an election, ” after the election result is announced. Here, the complainant must first lodge an objection with the IEC, since the Electoral Ct has only appellate jurisdiction.
In principle, geldenhuys could take issue with Mthiyane’s reading of his complaint as only having to do with s. 78. But I think that would be a waste of time. If Geldenhuys wishes to have the election result set aside, he will need to expeditiously approach the IEC under s. 65, and thereafter appeal to the Electoral Court if needs be.