Direct reliance on Constitution

20 January 2022 14:00 by Merilyn Kader

In Electoral Commission of South Africa v Democratic Alliance and Others [2021] 4 All SA 52 (SCA), the ElectoralCommission’s power to adjudicate disputes is limited to the administrative mechanics of an election, and as such must act within the powers lawfully conferred on it.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Constitutional and administrative law - Direct reliance on provisions of Constitution for exercise of right: In March 2019, the second respondent (the Good Party) in Electoral Commission of South Africa v Democratic Alliance and Others [2021] 4 All SA 52 (SCA) lodged a complaint with the Electoral Commission of South Africa, alleging that the first respondent, the Democratic Alliance (the DA), had contravened s 89(2) of the Electoral Act 73 of 1998 and item 9(1)(b) of the Code in the run up to the national and provincial elections held on 8 May 2019 by publishing false information with the intention of influencing the outcome of an election, and false and defamatory allegations concerning the Good Party leader, Ms Patricia De Lille.

Ms De Lille was a former member of the DA. In guidelines prepared for campaigners of the DA, it was stated that Ms De Lille had been fired because she was involved in all sorts of wrongdoing in the City of Cape Town. It was that and related statements, which grounded the Good Party’s complaint. The Commission found that the DA had contravened item 9(1)(b) of the Electoral Code of Conduct and ordered it to issue a public apology. DA launched an application in the Electoral Court to review and set aside the Commission’s decision. The court held that the Commission’s power to adjudicate disputes was limited to the mechanics of an election, and it had no power to adjudicate an issue, which was not administrative in nature. It was thus concluded that decisions of the Commission were invalid and had to be set aside, which led to the present appeal.

The court as per Schippers JA (Maya P, Zondi JA, Goosen and Sutherland AJJA concurring) held that the Commission erred in submitting that s 190(1) and (2) of the Constitution, in terms of which it was enjoined to manage elections and was granted additional powers prescribed by national legislation, gave it the power to determine a complaint concerning a breach of the Code and to take remedial action. It had made its finding against the DA in terms of s 5(1)(o) of the Electoral Commission Act 51 of 1996. A decision deliberately and consciously taken under the wrong statutory provision cannot be validated by the existence of another statutory provision authorising that action. In any event, none of the provisions relied on grounded the power to make a finding that the Code had been contravened or to take remedial action under it. Secondly, the Commission was precluded from relying directly on the Constitution by the principle of subsidiarity. Where legislation has been enacted to give effect to a constitutional right, a litigant must either rely on that legislation or challenge its constitutionality. It cannot bypass legislation and rely directly on the right.

The principle of legality, an aspect of the rule of law, requires that a body exercising a public power must act within the powers lawfully conferred on it. The Commission violated that principle when it decided that the DA had breached the Code.

Merilyn Rowena Kader
Legal Editor at LexisNexis