---
title: "Should the Electoral Commission bend the rules when parties fail to comply?"
description: "Can the Electoral Commission of South Africa bend the rules for the registration of political parties when they do not publish notice of their applications? Should they also be allowed to register with fewer supporters’ signatures than the required number? Or pay a rand or two less than the prescribed deposit with their candidate nominations?"
type: "OpinionNewsArticle"
publisher: "Daily Maverick"
site: "https://www.dailymaverick.co.za"
section: "Opinionistas"
author: "Dhaya Pillay"
author_url: "https://www.dailymaverick.co.za/author/dhaya-pillay/"
canonical_url: "https://www.dailymaverick.co.za/opinionista/2026-09-09-should-the-electoral-commission-bend-the-rules-when-parties-fail-to-comply/"
published: "2026-09-09T11:53:08"
lang: "en-ZA"
word_count: 1132
---

# Should the Electoral Commission bend the rules when parties fail to comply?

> Can the Electoral Commission of South Africa bend the rules for the registration of political parties when they do not publish notice of their applications? Should they also be allowed to register with fewer supporters’ signatures than the required number? Or pay a rand or two less than the prescribed deposit with their candidate nominations?

By Dhaya Pillay · Published 9 September 2026, 13:53 SAST

## Content

Whether the Electoral Commission of South Africa has discretion to relax the rules arose in the application for registration as a political party by the United Democratic Front Party. The deputy chief electoral officer decided that the party’s abbreviated name “UDFP” impermissibly resembled that of another political party. He rejected the application. Hence, I refer to it as the “Party” and not “UDFP”.

### Appeal to commission

On appeal, the Party asked the commission to choose between two options: either to register it without the abbreviated name or to accept one of several other abbreviated names it proffered. The commission could not accede to that. As the referee, the commission could not also become a player in the process. There was also the matter of publishing notice of the application without the abbreviated name. The commission confirmed the deputy chief electoral officer’s decision and dismissed the Party’s appeal.

### What the Party should have done

As soon as the deputy chief electoral officer rejected its application, or even after the commission upheld his rejection, the Party should have published its application without its abbreviated name. Practically, that would have been most sensible.

The Party would have been registered timeously to participate in the local government elections in 2026. By appealing to the commission and then to the court, it alone delayed its registration.

### The Electoral Court

Instead, the Party applied successfully to the Electoral Court to review and set aside the decision of the commission. Commendably, in devising a remedy, the court referred the matter back to the commission.

Why commendably? This was potentially a case of litigation spiralling out of control. By remitting the matter to the commission, the court put the brakes on an appeal by the commission.

Particularly pacifying was this observation by the court of the commission: “That body has not been shown to exhibit bias or incompetence. Its concern, all along, has been compliance with the statutory obligations.”

For the first time, the Electoral Court engaged dialogically with the commission. It directed the commission to determine the registration without the abbreviated name, within seven days. And if the commission required the Party to publish notification of its registration, the commission had to inform the Party within three days of reconsidering the appeal.

Deferentially, the court left the decision to the commission to reconsider the application to register the Party without an abbreviated name, and with or without publishing notification of its application. Impliedly, the court wanted a different outcome from the commission than rejection of the registration. Infusing the court’s directive was its inclination to give effect to the Party’s constitutional right to participate in the local government elections.

The commission acceded to the court’s directive, registered the Party without the abbreviated name and waived the publication of notice of the application. Any repercussions from that waiver would be mitigated when the commission published the certification of the Party which, in this instance, was particularly necessary. The Party’s initial publication was during the holidays on 23 December 2025 and might have escaped the attention of interested persons.

Thus, the interests of expeditious dispute resolution were served. The voters’ constitutional rights were respected. The integrity of the commission and the court were preserved. So far so good.

### Court’s findings

In court, the Party had abandoned its abbreviated name. Tacitly, it conceded that its abbreviated name resembled that of another party. So the only issue in dispute was whether the commission could determine the application, amended to be without an abbreviated name and without publication of notice of the amendment.

That meant deciding whether the commission could set aside the deputy chief electoral officer’s decision in an application that was different from the one that he had rejected. If yes, then the commission had broad powers to determine the appeal. The commission’s stance was that its powers were narrow.

On the facts before the deputy chief electoral officer, he had to reject the application. He could not create a compliant application out of one that was noncompliant. Additionally, as an administrative body, the commission’s adjudicative powers are limited. The commission does not have the breadth of discretion that the court has, bearing the status of the Supreme Court.

By finding the commission’s powers to be broad and issuing its reconsideration directive, the court implied that the commission had a discretion to bend the rules for registering a Party without its abbreviated name and without publishing its amended application. If the court had found – as it should have – that the commission had no discretion, it would have said so categorically and finalised the matter itself, by dismissing the appeal.

### What went wrong

The court arrived at its finding by applying the rule reserved for determining whether a party resembled an existing party. That rule requires a party seeking registration to satisfy the commission that it does not resemble any existing registered political party, to the extent that it may deceive or confuse voters. That is an enquiry into the substance of the application for registration.

But the question for the court to answer was about procedural compliance. It boiled down to whether notice of the application without the abbreviated name should be published. To assume that publication was dispensable lent credence to the discredited “no difference” principle of administrative law.

Before enquiring into the substance, the commission must establish that an application for registration as a party meets the legal formalities, threshold requirements, or, as lawyers say, the jurisdictional prerequisites. Similarly to procurement law, that is simply a baseline fact check on compliance with the procedures for qualifying as a party.

By applying a rule aimed at regulating the commission’s discretion regarding the substance of the application, to determine compliance with procedural formalities, the court, respectfully, misdirected itself. A vastly different enquiry precedes a determination of procedural compliance.

### Procedural compliance

Typically, when considering whether to bend the rules for procedural noncompliance, the questions to ask include:

- Would the commission compromise its independence, impartiality and integrity?
- Would the commission distort fair competition among political parties and candidates?
- Would it impugn the integrity of law?
- Would it result in ad hoc decision-making and therefore uncertainty and unpredictability in election management practice?
- Would voters be inconvenienced or compromised in the exercise of their right to vote?
- Would the constitutionally protected political rights of anyone be violated?
- Would an unsustainable precedent be set?
- What standard of efficiency should be maintained, considering that, ultimately, the Party is seeking to govern?

The commission adopts a “narrow” or strict test when it examines whether procedural formalities are fulfilled.

Recognising that strict compliance with prescribed formalities is a design feature of our electoral laws would reset election management practice on a firm, certain, predictable and efficient trajectory that would strengthen the integrity of our entire electoral system. **DM**