In the electoral court matter brought by Jabulani Khumalo vs Independent Electoral Commission of South Africa (0025/24EC) [2024] ZAEC 20 (12 June 2024) where Zungu Incorporated attorneys represented the former president, Jacob Zuma, and the MK party, the court emphasized that the award of punitive costs is warranted where the applicant perjured himself, brought an application was frivolous, without merits and to the extent that it constituted an abuse of the court’s process.
Summary: Administrative law : legality review
The points in limine that were argued by those representing former President Jaco Zuma and the MK Party were as follows:
– whether the Electoral Court’s jurisdiction in terms of s 20 (1) of the Electoral Commission Act 51 of 1996 is properly engaged
– whether the applicant has locus standi to bring the application
– whether the applicant delayed bringing the application and if so, whether the delay may be condoned or overlooked in the interests of justice. Merits
– whether Ms Duduzile Zuma-Sambudla forged the applicant’s signature in a letter marked JK6, advising the Electoral Commission (the Commission) to change the particulars of Umkhonto Wesizwe Party (MKP) to replace Mr Khumalo with Mr Zuma as its leader
– whether, when it acted on the request, the Commission breached regulation 9 of the Regulations for the Registration of Political Parties, 2004 as amended , and
– whether the award of punitive costs is warranted.
In the evaluation of submissions presented by both counsels(for the applicant and the respondent) the court ;
Held: Jurisdiction – this court’s review jurisdiction in terms of s 20 (1) is engaged. The Commission’s determination that the written notification to update MKP records to reflect Mr Zuma as its leader as set out in JK6 complies with regulation 6 constitutes a reviewable decision as contemplated in s 20(1)(a). The decision relates to an electoral matter because political parties are a primary mechanism through which South African citizens participates in an election.
Held: Locus standi – as an expelled member of MKP, Mr Khumalo lacks locus standi to seek relief concerning the leadership of MKP.
Held: Urgency – the applicant failed to bring the application within the 3 days required in terms of s 20(1)(b) of the Commission Act, read with Rule 6 of the Electoral Court Rules. The delay is unreasonable. because it is not fully explained. A proper case for the delay to be condoned or overlooked in the interests of justice is not made.
Held: Merits – based on the Plascon-Evans rule, Mr Khumalo wrote JK6 advising the Commission to change its records to reflect Mr Zuma as the leader of MKP. The Commission complied with regulation 9 when it acted on this request.
Held: Costs –the award of punitive costs is warranted because the applicant perjured himself, the application is frivolous, lack merits and constitutes an abuse of the court’s process.
This case is reprted and the full case law can be accessed by downloading it from SAFLII website.
