Democratic Union Party v President of Republic of South Africa and Others and Others (2024-066601) [2025] ZAGPPHC 1393 (16 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1393 | Noteup | LawCite sino index ## Democratic Union Party v President of Republic of South Africa and Others and Others (2024-066601) [2025] ZAGPPHC 1393 (16 December 2025) Democratic Union Party v President of Republic of South Africa and Others and Others (2024-066601) [2025] ZAGPPHC 1393 (16 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1393.html sino date 16 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 2024-066601 (1)      REPORTABLE: NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED: YES Date:      8 December 2025 In the matter between: DEMOCRATIC UNION PARTY Applicant And PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent THE   SPEAKER    OF     THE   NATIONAL ASSEMBLY Second Respondent CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Third Respondent MINISTER OF HOME AFFAIRS Fourth Respondent INDEPENDENT ELECTORAL COMMISSION Fifth Respondent SOUTH        AFRICAN     LOCAL GOVERNMENT ASSOCIATION Sixth Respondent JUDGMENT DE VOS AJ [1] The Democratic Union Party is a political party registered in terms of Act 51 of 1996. It approaches this court challenging, at its heart, the constitutionality of the electoral legislation. [1] The relief claimed is extensive, with the notice of motion containing fourteen substantive prayers. [2] [2] The applicant is motivated by what it submits is a lack of accountability, responsiveness and openness in the current electoral system. The essence of the applicant’s approach is that section 1(d) of the Constitution provides for universal suffrage that gives effect to the values of accountability, responsiveness and openness. [3] The applicant submits that the current electoral system falls short of these values and consequently, the electoral acts and other legislative provisions are unconstitutional. [3] The applicant submits that the right to vote, provided in section 19 of the Constitution, as given effect to by the Electoral Act 73 of 1998 , the Electoral Laws Amendment Act 1 of 2023 and the Local Government Electoral Act 27 of 2000, fails to afford the citizens a right to cancel or to recall their elected representative as a common law remedy in instances where they are dissatisfied with the performance or conduct of the elected public representative. [4] The applicant refers this Court to the remarks made by erstwhile Justice Yacoob that the “ existence of the right to vote without proper arrangements for its effective exercise does nothing for a democracy; it is both empty and useless.” [4] [5] It seeks a host of changes, which seek to alter the foundations of our electoral system.  It also seeks relief against the IEC for its alleged failure to conduct, stated broadly, voter education. [5] [6] The Court considered the relief sought by the applicant and had three concerns. [7] First, the application rests on the premise that the system proposed by the applicant will give better effect to section 1(d) of the Constitution. The argument, as lifted from the applicant’s submissions is that to ensure accountability, responsiveness and openness in the electoral act, it “must provide for constituency based electoral system, wherein the voters would elect individual members of parliament directly, who will in turn account timeously to the electorate”. The applicant submits that such an arrangement would make the idea of accountability, responsiveness and openness a reality. This is at the core of the applicant’s case. [8] Assuming for the time being that the electoral acts can be tested against section 1(d) of the Constitution rather than section 19 of the Constitution, the premise is presented as a conclusion.  There are no facts which underpin it. [9] The Court inquired from the applicant’s representatives on which facts the argument rest.  Mr Poyo referred the Court to newspaper articles which contain alarming complaints from communities about a lack of service delivery. The Court does not ignore such complaints. The applicant however does not provide a factual foundation to prove that the proposed electoral system it supports would better give effect to the Constitution – and presumably, prevent a lack of service delivery.  The applicant has not proven, factually, that the system proposed would better serve people. [10] The applicant is asking the Court to interfere with Parliament’s determination without being given a grounded explanation for why the proposed system better gives effect to section 1(d) of the Constitution. The Court declines to do so. [11] The same reasoning applies to the relief sought against the fifth respondent.  The Court has been presented with no facts to support a conclusion that the fifth respondent has fallen short of its duties.  On the contrary the fifth respondent has pointed to a host of undisputed facts indicating compliance with its duties in relation to voter education. [12] Second, aside from the absence of a factual foundation being laid, the Court is being asked to strike down an entire electoral system on the basis that another system would be better. Even assuming a factual basis for this had been laid, the Court is not empowered to grant such relief. [13] Where Parliament has spoken and there is room to interpret its word, without straining its language – the Court must comply with the constitutional mandate to give effect to Parliament’s expression in the way which best gives effect to the Constitution. This reading-down relief is mandated by section 39(2) of the Constitution. [14] Where Parliament has spoken, and there is no room to interpret its word in a manner that compiles with the Constitution, then the Court must strike down the offending part of the legislation to the extent of its conflict. This striking down relief is mandated by section 172 of the Constitution. [15] The relief proposed by the applicant is neither of these. The applicant is asking this Court not to interpret existing legislation in line with the Constitution to better promote the Constitution. It is also not asking the Court to strike down a specific provision in legislation for being in conflict with the Constitution. Rather, it is asking the Court to strike down legislation on the basis that there are other methods that better promotes section 1(d) of the Constitution. [16] Courts are not empowered to strike down legislation as there is, in its view or the view of a litigant, a “better” way of giving effect to the Constitution.  A Court can only strike down a provision in legislation, when it is unconstitutional. [17] Counsel for the first to fourth respondents expressed the concern as follows: the fact t hat the applicant believes that the Constitutional objectives can best be achieved in a particular way that it envisages does not mean that the legislation preferred by Parliament as a means of giving effect to the right to vote in section 19 is unconstitutional and invaIid. [18] The relief sought by the applicant is not legally competent and the Court not permitted to grant it.  The Court cannot, for this principled reason, grant the relief sought by the applicant. [19] The Court’s third concern is that the applicant’s challenge is not directed at a particular provision of the Electoral Act and the Local Government Electoral Act 27 of 2000, but rather the entire legislation. [20] The Court cannot strike down an entire electoral system.  The nature of the relief sought is not within the domain of what a Court can grant.  The Court cannot override Parliament’s choice of an electoral system in its entirety. Our current electoral system is a reflection of a democratic choice, the Court cannot override that choice.  It is beyond the jurisdiction of the Court, destructive of the separation of powers and beyond the remit of the Court’s functions. [21] For these reasons, the Court could not grant the relief sought by the applicant. [22] The relief which the applicant seeks can only be obtained through constitutional and statutory amendments. For this, the applicant must lobby fellow political parties to move for such amendments, or bring a constitutional challenge to a specific provision in the legislation. [23] If the applicant’s concern is an abuse of power, it must file a direct challenge against those who have abused power and seek appropriate relief against them.  The applicant’s fear that the current electoral system permits abuse, is not a basis to set it aside.  The Court cannot grant constitutional relief based on speculation. In any event, any power vested in a functionary by the law (or indeed by the Constitution itself) is capable of being abused. That possibility has no bearing on the constitutionality of the law concerned. The exercise of the power is subject to constitutional control and should the power be abused the remedy lies there and not in invalidating the empowering statute. [6] [24] The Court considered the issue of costs. [25] The applicant’s motivation for litigating was to give effect to section 19 of the Constitution.  The Court is slow to grant costs as it ought not create a hurdle for people wishing to litigate in the public interest and can only do so if the litigation was frivolous or vexatious. [26] The arguments presented by the IEC to grant a costs order were: 26.1 This application is frivolous and the applicant is aware of this from the answering affidavits filed in its application for direct access to the Constitutional Court and in the urgent application heard in July 2024. 26.2 The applicant seeks to change the electoral system . This Court cannot grant orders the effect of which is to change the electoral system. The applicant, however, does not directly challenge the constitutionality of the current electoral system. 26.3 The applicant appreciates that the relief which it seeks requires a change to the electoral system but still persists therewith. In its heads of argument, the applicant says the following which justifies a costs order against it: “ 152. The applicant is fully aware that a decision about the orders sought is not an easy one to arrive at. Not necessarily because of the complexity of issues before it, but because of the interests at stake. 153. It cannot be an easy decision to order a change of the electoral system because certain interests thrive … conveniently under the current definition of power which is under challenge. The state capture period proves this truism.” (Own emphasis). 26.4 It is clear from paragraph 153 of the applicant’s heads of argument that the applicant is aware that it wants the Court “ to order a change of the electoral system ” yet it does not directly challenge the constitutionality of that system. Instead, it engages the respondents on issues which require a change to that system before the relief which it seeks could be granted. This type of conduct is not protected by the Biowatch principle. [27] The first to fourth respondents allege that the applicant has not in its papers referred this court to any specific provision of the challenged legislations. For the reason alone this application deserves to be dismissed with costs. [28]     The Court engaged the applicant on the issue of costs.  The applicant contended that had the President or the other respondents met with the applicant, the litigation could have been prevented.  It seems neither a reasonable request nor is it clear how that would have resolved the issue.  The applicant has no clear answer as to the claim that the application was frivolous – rather that the litigation could have prevented had the President and the Minister of Home Affairs sat down in a meeting with the applicant.  It is not clear how that would have changed the nature of the meeting. [29]     The applicant was aware of the reasons why the relief it sought were problematic when it received the answering affidavit in the Constitutional Court application.  It did not consider this and alter its course.  It then persisted in the urgent court.  Again when it received the answering affidavit in the urgent court proceedings, it did not consider its position and altered its course. The costs award granted by the urgent court ought to have been a signal flare for the applicant.  It was not. Instead, the applicant, for the second time doubled down.  Then after it received the answering affidavit in these proceedings, again, with the clear explanation of why the relief was inappropriate, again persisted. [30]     In these circumstances, the court concludes the application was frivolous.  The relief was incompetent from the outset and the applicant was repeatedly advised of this. Yet, it persisted.  In these circumstances, it should be liable for the costs incurred in these proceedings. [31]     The papers were voluminous.  The applicant filed supplementary affidavits and written submissions.  The applicant requested the matter to be heard in the special motion court.  In these circumstances, the costs ought to be on a scale commensurate with the work required to oppose the relief and the extent of the record of pleadings in this matter. [32]     The Court, for purposes of a speedy resolution of the proceedings, granted an order on the day of the matter.  The Court however indicated that the parties were entitled to a judgment and that such a judgment would be prepared.  It was in these circumstances the Court granted an order that – 1.     The application is dismissed with costs of two counsel. 2.     Counsels costs are on scale C for the senior counsel and on scale B for the junior counsel. I de Vos Acting Judge of the High Court Delivered:  This judgment is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be e-mailed to the parties/their legal representatives. Counsel for applicant: Makhosi Poyo Instructed by: Makhosi Poyo Inc Attorneys Counsel for first to fourth respondent: Zinzile Matebese SC Noxolo Khumalo Instructed by: State Attorney Counsel for the fifth respondent: K Tsatsawane SC Instructed by: Bowman Gilfillan Inc Date of hearing: 16 October 2025 Date of order: 16 October 2025 Date of judgment: 16 December 2025 [1] Specifically, the constitutionality of the Electoral Act 73 of 1998 as amended by the Electoral Laws Amendment Act 1 of 2023; the constitutionality of the Local Government Electoral Act 27 of 2000; [2] These include challenges to the the constitutionality of the Electoral Act 73 of 1998 as amended by the Electoral Laws Amendment Act 1 of 2023; the constitutionality of the Local Government Electoral Act 27 of 2000; the manner of election of the President in terms of section 86(1) of the Constitution, the Premiers in terms of section 128(1) of the Constitution and the Municipal Mayors, the manner in which the President, the Premier and the Municipal Mayor pronounced their executive members in terms of the Constitution; the manner of conducting a motion of no confidence against the President and the Premier as provided for in section 102(2) and 141(2) of the Constitution respectively; the manner in which section 139(1)(c) and section 139(3) of the Constitution are applied as being unconstitutional and the alleged failure or abdication of constitutional and statutory mandate by the fifth respondent as unlawful and unconstitutional.  There are also challenges aimed at the IEC specifically and whether it is complying with its duties. Further, the applicant submits that the IEC has a duty to conduct voter education, and, so goes the argument, it has failed in this regard. The applicant also criticises the Electoral Act and the Electoral Laws Amendment Act, for being are unconstitutional in that they do not provide for consultation with the members of the public when the National Parliament needs to elect a President in terms of section 86(1), the provincial legislature intends to elect a Premier in terms of section 128(1) and when removing the President and/or the Premier in terms of the Constitution. [3] In relevant part the section reads: “ (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.” [4] New National Party v Government of the Republic of South Africa and Others (CCT9/99) [1999] ZACC 5 ; 1999 (3) SA 191 ; 1999 (5) BCLR 489 (13 April 1999), who stated as follows at para 11 [5] The relief sought includes that: 1. The Electoral Commission “ is ordered to provide separate ballot papers on an occasion of general elections to afford voters an opportunity to pronounce on who should be a President, Premier of the Province or a Mayor respectively .” 2. The Electoral Commission’s conduct of abdicating its duties to promote voter education is unlawful and unconstitutional. 3. The Electoral Commission “ is ordered to craft a voter education scheme designed to reach out to each and every household in the Republic before the rerun of the election ” taking into account the issues listed in subparagraphs 20.1 to 20.4 of the notice of motion. [6] Van Rooyen And Others v The State And Others (General Council of the Bar of South Africa intervening 2002 (5) SA 246 (CC) paragraph 37 sino noindex make_database footer start