South Africa: Electoral Commission Act (continued)

Repeal of the 1993 Act

The 1996 Act expressly repeals the 1993 Act. Section 24(3) of the 1996 Act provides that notwithstanding the repeal of the 1993 Act, the Court has the power to dispose of any matter pending before it as if the 1996 Act had not been passed. Clearly, the Court did not have the power to deal with any new matter; that is, a matter not pending at the time the 1996 Act was passed.

Electoral Courts

The Special Electoral Court was not a court of first instance, but a court with appeal jurisdiction. It had the jurisdiction to hear and determine an appeal against the decisions of the IEC insofar as such decisions related to the interpretation of any law, as well as any matter for which an appeal was provided for in the Electoral Act 202 of 1993.

The Act makes provision for the establishment of an Electoral Court which will have the status of a High Court. (The final Constitution renames all Supreme Courts as High Courts.)

The Judicial Service Commission is responsible for the appointment of the members of the Electoral Court under the 1996 Act (section 19(1)). The members of the Electoral Court are all judges (one from the Appellate Division, now known as the Supreme Court of Appeal).

The Electoral Court has the power to review any decision of the Electoral Commission relating to an electoral matter. The review shall be conducted on an urgent basis and disposed of as expeditiously as possible (section 20(1)(b)). The Electoral Court may hear and determine an appeal against any decision of the Commission insofar as such decision relates to the interpretation of any law, and any other matter for which an appeal is provided by law (section 20(2)(a)).

The Electoral Court is granted the power by section 20(4)(b) to determine which courts of law will have jurisdiction to hear particular disputes and complaints about infringements, and appeals against decisions from such hearings. In terms of section 20(7), the Electoral Court may investigate any allegation of misconduct, incapacity or incompetence of a member of the Commission, and make any recommendation to a committee of the National Assembly referred to in section 7(3)(a)(ii) of the 1996 Act.

Section 23 empowers the Electoral Commission to make regulations regarding, inter alia, the compiling and maintaining of voters' rolls; the registration of parties in terms of the Act; generally, all matters which are necessary or expedient to be prescribed in order to achieve the objects of the Act.

References

CONSTITUTION OF THE REPUBLIC OF SA 1996, [www] http://www.info.gov.za/documents/constitution/1996/index.htm [opens new window, incorporates all amendments until 13th Ammendment (2007)] Act No. 108 of 1996; 14-16 Amendments available at http://www.info.gov.za/view/DynamicAction?pageid=612 [opens new window] (accessed 9 Mar 2010); approved by Constitutional Court December 4, 1996; took effect February 4, 1997; amended 1996, 1997, 1998, 1999, 2001, 2002, 2003 (accessed 26 Feb 2010).

ELECTORAL COMMISSION ACT 51 1996, amended 2003, 2004, [www] http://www.elections.org.za/content/WorkArea/DownloadAsset.aspx?id=987 [opens new window] (accessed 26 Feb 2010).