Implications of the Failure to pay the Required Electoral Deposit in South Africa: Analysing National Freedom Party v Electoral Commission

Abstract

The right to participate in elections is one of the cornerstones of any democratic country. This is true of South Africa’s electoral process, which was put to the test in the case of National Freedom Party v Electoral Commission in 2016. To promote free and fair elections, certain safeguards must be put in place. These include notifying the Electoral Commission of an intention to participate in elections through the payment of a deposit on a specified date by the party intending to participate in elections, and the publication of an election timetable by the government. This research has found that once published, the Electoral Commission has no power to change the electoral timetable. The only remedy for a party that fails to comply with the electoral prescripts such as the payment of an electoral deposit lies under section 11(2)(a) of the South African Local Government: Municipal Electoral Act. Additionally, it found that the concept of free and fair elections takes into account the interests of all parties concerned, and not just that of the party that alleges unfairness stemming from the exclusion. Whilst the exclusion of a party can lead to the violation of certain fundamental rights, such as the right to regular free and fair elections, and the right to vote, it is important to note that this case clearly establishes the legal position that a party’s failure to comply with the legal prescripts, will bar that political party from obtaining a remedy for exclusion. KEY WORDS: ELECTORAL COMMISSION, ELECTORAL TIMETABLE, FREE AND FAIR ELECTIONS, CONDONATION, NON-COMPLIANCE.