South Africa’s Electoral Court in Bloemfontein dismissed the Giving Foundation’s application seeking fair and proper election proceedings in 2024.
This comes after Yoshihito Mavunga Yame, the foundation’s representative, failed to pitch for a virtual video conference on Tuesday last week.
According to the court’s acting judge, Seena Yacoob, the foundation challenged the election commission and President Cyril Ramaphosa after claiming that they violated Section 87 (4) of the Electoral Act.
The foundation sought an order warning that the election proclamation violates Constitutional Section 49(2), Yame said.
Applicant couldn’t be reached for the hearing
“The commission, responsible for enforcing the constitution, and the president, the head of state, are involved. But the president does not participate in these proceedings,” said judge Yacoob.
The judge further said the foundation elected not to file a reply affidavit, relying only on its founding affidavit.
“The foundation was notified of the set-down and requested to file a paginated bundle and index. A link for a virtual hearing was sent, but Mr Yame couldn’t be reached. So the commission worked on the compilation,” judge Yacoob added.
Sunday World understands that after the hearing, Yame sent an email to the court’s secretary. He stated that he did not know of the scheduled hearing. Yame claimed that he only learned about it when his phone’s calendar reminded him of it. This was on the morning of the hearing.
“He also stated in the email that he did not intend to say anything more than what was contained in his founding affidavit and heads of argument. It must be noted that the failure of a party to attend a hearing is less than ideal, even if they have nothing more to say. This is because it means they are not able to respond to the court’s queries or to arguments submitted by the other side.”
Proclamation did not comply with the Constitution
The foundation contended that the proclamation did not comply with the Constitution, therefore it was unlawful.
“The proclamation must include one day for the electorate to vote. One other day for the members of the National Assembly to elect the president and other office bearers of the national assembly. The fact that the proclamation only provides for the one day means it does not comply with Section 49(2). It is therefore unlawful and invalid.”
In court, the commission presented several procedural objections to the application. It stated that the court has no power to decide whether Ramaphosa fulfilled his constitutional duties to proclaim the election.
“This is because Section 49(2) of the Constitution imposes an obligation on the president. [Obligation] of the kind that brings it within the bounds of Section 167(4)(e) of the Constitution. [This] reserves the decision whether the president has failed to fulfil a constitutional obligation to the exclusive jurisdiction of the Constitutional Court.”
Application not brought in time
The commission added that if the court had jurisdiction, the application would have been brought at the earliest possible opportunity.
“The application was instituted over a month after the election was proclaimed. And two months before the election date. The proper time for a challenge of this sort is not when the election has been proclaimed and preparations are underway.”
Yacoob stated that the court lacks jurisdiction to decide the foundation’s case. Further consideration of the foundation’s arguments is inappropriate, he added.
“In South African law, executive conduct such as a proclamation remains valid unless and until it is set aside by a competent court. For these reasons, I grant that the application is dismissed.”
