Kham and Others v Electoral Commission and Another (006/2013) [2015] ZAGPJHC 53 (19 March 2015)

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[2015] ZAGPJHC 53
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Kham and Others v Electoral Commission and Another (006/2013) [2015] ZAGPJHC 53 (19 March 2015)

REPUBLIC
OF
SOUTH AFRICA
IN
THE ELECTORIAL COURT
(HELD
AT JOHANNESBURG)
CASE
NO: 006/2013
DATE:
19 MARCH 2015
In
the matter between:
XOLILE
DAVID
KHAM
.................................................................................................
First
Applicant
JOHANNES
SESING
JOHNSON
..............................................................................
Second
Applicant
AARON
PASELA
MHLOPE
........................................................................................
Third
Applicant
JOHANNA
SHONU
XABA
.........................................................................................
Fourth
Applicant
NTOMBI
BEAUTY
DIKUPE
.........................................................................................
Fifth
Applicant
DIKELEDI
CATHRINE
MOLEFE
...............................................................................
Sixth
Applicant
VELILELE
JAMES
ZICINA
....................................................................................
Seventh
Applicant
KHOTSO
RATKOANE
...............................................................................................
Eighth
Applicant
And
THE
ELECTORAL
COMMISSION
..........................................................................
First
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF LOCAL GOVERNMENT AND
TRADITIONAL
AFFAIRS, NORTH WEST
PROVINCIAL
GOVERNMENT
............................................................................
Second
Respondent
SUMMARY
Elections
– By-elections –
Application to set aside by-elections based on alleged irregularities
– Interdictory relief to compel Commission to appoint

independent forensic investigation into process of voter registration
and voting in by-elections – checks and balances provided
in
legislative framework in respect of functions and duties of
Commission – Sections 18(1)(f), 19(2) and 190(1) and (2) of

Constitution – and Sections 3 of
Electoral Act 73 of 1998
; the
Local Government:
Municipal Electoral Act 27 of 2000
; the
Electoral Commission Act 51 of 1996
; and the Local Government:
Municipal Structures Act 1998 – Materiality of alleged
irregularities – whether affecting
result of election –
court not having power to grant mandatory relief sought by applicants
– applicants failing to
lodge objections to voters’ roll
in terms of Section 15 of
Electoral Act and
objections material to
result of election in terms of
Sec 65
of
Municipal Electoral Act –
and
failing to make out case for by-elections held in 2013 to be set
aside.
ORDER
1.
The
application is dismissed.
2.
There
is no order as to costs.
DRAFT
JUDGMENT
Moshidi
J (Shongwe JA, Ms S Pather and Mr M Mthembu, members concurring).
Wepener J: (dissenting as to alternative relief
only)
[1]
At the heart of this matter are the collective contentions of the
applicants that the voter registration and the subsequent
voters’
roll compiled by the Electoral Commission, the first respondent (“
the
Commission
”), in regard to the
municipal by-elections held at Tlokwe Local Municipality during
August 2013, September 2013 and December
2013, were inaccurate,
incorrect, and therefore unreliable.  In essence, the assertions
of the applicants came to this:
a large number of voters who
were registered and/or voted in the said by-elections were ineligible
voters and were bussed in from
other wards or areas.
THE
RELIEF SOUGHT BY THE APPLICANTS
[2]
In the amended notice of motion,
[1]
the relief sought by the applicants was framed in the following
terms:
“
1.
The First Respondent (at its own expense), is ordered to instruct a
suitably qualified, reputable and independent firm of forensic

investigators to conduct a comprehensive forensic investigation into
the registration process adopted and implemented by the First

Respondent for the by-elections held on 6 and 7 August 2013, 17 and
19 September 2013 and those held on 10 and 11 December 2013
in the
district of the Tlokwe Local Municipality, Northwest Province (the
‘by-elections’) within 30 days of date of
this order.
1.1
The
First Respondent is ordered to revert and make available to this
court the full written report of the forensic investigation,
within
90 days from date upon which the order is granted.
2.
The
terms of reference and mandate for purposes of the forensic
investigator’s report must require and contain, inter alia,
the
following:
2.1
The
names and addresses (under separate headings) of all voters in the
by-elections that were:
2.1.1
registered
with the First Respondent for the first time (‘first time
registrations’);
2.1.2
re-registered
with the First Respondent from an address and/or municipal ward that
falls within a district outside the district
of the Tlokwe Local
Municipality (‘outside re-registrations’);
2.1.3
re-registered
from another ward within the Tlokwe Local Municipality;
2.1.4
registered
to cast a special vote.
2.2
The
number and full particulars of all voters not susceptible to have
voted, for whatsoever reason, in vacant wards in respect of
the
by-elections on 6 and 7 August 2013, 17 and 18 September 2013 and 10
and 11 December 2013, respectively.
2.3
A
recommendation in respect of those voters (a list with full
particulars should be included) to be removed from the voters roll
by
the First Respondent.
2.4
A
full indication on any adverse effect that the lists in paragraph 2.2
and 2.3 supra may have had on the freeness and fairness
of the
by-elections held on 17 and 18 September 2013 and 10 and 11 December
2013, within the district of Tlokwe Local Municipality.
2.5
The
names and full particulars of officials of the First Respondent that
may reasonable have been party to or at least aware of
contraventions
of the
Electoral Act in
respect of the 2013 by-elections in the
Tlokwe Local Municipality.
2.6
The
name(s) of any political party(ies) that may reasonable be suspected
to have been involved with or that may have orchestrated
a process of
illegal registration in the by-elections in 2013 in the Tlokwe Local
Municipality.
2.7
All
registered candidates and political parties will have observer status
during the process in paragraph 2.
3.
The
Applicants are granted leave to supplement their papers once the full
forensic report is made available to the First Respondent,
within 20
days of date thereof.
4.
Should
the report contain any adverse findings in respect of the
by-elections in 2013 within the Tlokwe Local Municipality, which

findings indicate irregularities which may have had an adverse effect
on the freeness and fairness of the by-elections in the Tlokwe
Local
Municipality in the 2013 by-election, it is ordered that:
4.1
the
unlawful election of any candidate in any particular ward be set
aside and that the First Respondent be ordered to convene new

by-elections in such ward where such candidate(s) was/were elected;
4.2
any
political party and/or candidate of a political party involved with
or responsible for an orchestrated or collective effort
or the
provision of assistance to voters to illegally register in any ward
where by-elections in the Tlokwe Local Municipality
were held in
2013, be disqualified from participating in the by-elections;
4.3
the
First Respondent must take all reasonable steps to lay criminal
charges against all or any persons that have committed a criminal

offence during the registrations and by-election dates as provided
for 2.2 above.
5.
Further and/or alternative relief.
”
THE
PARTIES
[3]
The eight applicants are almost collectively cited as community
leaders and/or politicians resident in Ikageng, district of

Potchefstroom, within the Tlokwe Local Municipality. The Commission
is a body established in terms of the Constitution,
[2]
which sets out the Commission’s functions as:
“
(1)
The Electoral Commission must –
(a)
manage
elections of national, provincial and municipal legislative bodies in
accordance with national legislation;
(b)
ensure
that those elections are free and fair; and
(c)
declare
the results of those elections within a period that must be
prescribed by national legislation and that is as short as reasonably

possible.
(2)
The Electoral Commission has the additional powers and functions
prescribed by national legislation.
[3]
”
In
addition, secs 4 and 5 of the Electoral Commission Act 51 of 1996,
(“
the Commission Act
”),
deal with essential duties, functions, objects and powers of the
Commission. The objects include, to strengthen constitutional

democracy and promote democratic electoral processes. Some of these
objects and powers will become more pertinent later in the
judgment.
The second respondent, who did not participate in these proceedings,
is the Member of the Executive Council, Department
of Local
Government and Traditional Affairs, North West Provincial Government
(“
MEC
”).
The latter was joined in this application in her official capacity,
and by virtue of the powers vested in her in
terms of sec 8 of the
Local Government:  Municipal Electoral Act 27 of 2000 (“
the
Municipal Electoral Act
&rdquo
;).
THE
BACKGROUND
[4]
The matter was heard by a full complement of this Court during the
January 2015 court recess.  At that stage it had accumulated
a
long and substantial history.  The record of the proceedings had
also grown into huge volumes.  This was caused largely
by the
amended notice of motion, which in turn resulted in a rejoinder by
the Commission,
[4]
and the
applicants’ surrejoinder.
[5]
All these pleadings contained various and numerous annexures.
At a previous hearing i.e. on 22 October 2014, this Court
also
postponed the matter and ordered that other potential interested
parties and political parties be joined.  However, none
of such
parties opted to join the proceedings.  In spite thereof, some
nine additional bundles of papers were filed shortly
before the
current hearing.
SOME
COMMON CAUSE FACTS
[5]
From the entire documentation, certain facts or events were either
common cause or not seriously disputed.  These were
that, some
of the applicants previously took part in the Tlokwe Municipal
by-elections under the banner of the African National
Congress (“
the
ANC
”).  The ANC expelled
those members, such as the first, second and the third applicants.
For the present, the applicants
were described as community leaders,
selected politicians and leaders earmarked to contest in the Tlokwe
Municipal by-elections
that took place on 7 August 2013, and those
scheduled for 18 September 2013 and 11 December 2013.
[6]
Despite the relief currently sought by the applicants, the
by-elections of 7 August 2013 were held mostly uneventful. There
was
no known challenge to these by-elections by any political party and
candidates in terms of
sec 65
of the
Municipal Electoral Act or
sec
15 of the Electoral Act 73 of 1998 (“
the
Electoral Act
&rdquo
;).
The results were duly declared by the Commission. However, in regard
to the by-elections scheduled for 18 September 2013, there
were
certain developments and obstacles. The second, third, fourth, fifth,
sixth and seventh applicants launched urgent proceedings
in this
Court against the Commission on 17 September 2013.  The
proceedings ended in the present second, third, fourth, fifth
and
sixth applicants being allowed to register as candidates in their
respective wards. The by-elections were postponed pursuant
an order,
and judgment of this Court in
Johnson
and Others v Electoral Commission and Others
.
[6]
[7]
In essence, the complaints and grievances of the applicants against
the conduct of the Commission commenced in earnest on 8
August 2013.
These persisted right up to the by-elections of September 2013 and
December 2013, leading up to the present
proceedings.
[8]
In my view, and for purposes of determining the applicants’
main relief set out in the amended notice of motion, i.e.
mandatory
injunction ordering the Commission, at its own expense, to commission
an independent forensic investigation, it was unnecessary
to detail
here all the relevant allegations made by the applicants.  These
are dealt with later below.
THE
INVESTIGATION AGAINST MR MAKODI
[9]
The complaint of the applicants of 8 August 2013 concerned the
conduct of one of the Commission’s officials, i.e. Mr Dise
John
Makodi (“
Makodi
”)
in refusing to assist and register certain independent candidates for
the by-elections scheduled to take place on 18 September
2013.
The conduct of Makodi was fully ventilated in the judgment of this
Court in
Johnson v Electoral Commission,
supra
.  We were told that the
Commission subsequently took appropriate steps against Makodi by
suspending him pending an investigation
into his conduct. He was
later subjected to a disciplinary hearing but resigned his position
before such hearing could commence.
Nothing more needs to be
mentioned in regard to Makodi.
THE
POSTPONEMENT OF THE SEPTEMBER 2013 BY-ELECTIONS
[10]
Pursuant to the postponement of the September 2013 by-elections, the
MEC (second respondent) set a new date for the holding
of the
by-elections as 23 October 2013.  However, on the latter date
too, the by-elections were not held.  The reason
for this,
according to the Commission, was that the interested parties agreed
to a postponement in order to allow for proper preparation
for the
by-elections.  The Commission also advanced as a reason the fact
that there were general allegations made regarding
the integrity of
the voters’ roll. On the other hand, the applicants contended
that the by-elections had to be postponed
because of certain
irregularities in the registration process of voters, and the absence
of a credible voters’ roll. For
these reasons, the applicants
had threatened legal action in the event the by-elections proceeded.
For present purposes,
it was unnecessary to determine this factual
dispute.  The end-result was that the MEC was again approached
to fix a new date.
The date was 11 December 2013 for the
by-elections to be held in Wards 1, 4, 11, 12, 13 and 20.
THE
EVENTS AFTER NEW DATE
[11]
The new date was communicated to all relevant and affected parties
and was also published in the North-West Provincial Gazette
on 11
November 2013.  This was preceded by voter registration that
took place in all the affected Tlokwe Local Municipality
wards.
[12] Once more, and
very briefly, in regard to the applicants’ interdictory relief,
the papers showed certain developments
leading to the December 2013
by-elections. These were that the first applicant raised various
complaints with the Commission.
The complaints were mirrored in
various correspondence exchanged between the respective parties’
legal representatives commencing
on 17 October 2013.  In this
regard, in a letter addressed by the first applicant’s
attorneys of record to the Commission
on 17 October 2013, the
following was stated:
“
The
complaints are of a serious nature and we have in fact, amongst
others, been placed in possession of a ward for ward list wards
in
the past by-elections and coming by-elections detailing exact figures
of persons that are not residing in the said respective
wards, but
have been bussed in by a political party to increase their votes and
help secure a victory in these wards.  In
this respect we are
also in the process of obtaining affidavits from persons that have
already voluntary indicated that they were
asked to participate in
the aforementioned activities. We are advised that our clients were
anonymously informed about these facts
by an official of the IEC,
that has access to the relevant information and who is very unhappy
with the fact that this may lead
to a very distorted result in the
by-elections and deprive other political parties from a fair
opportunity to win. The said official,
in fear of been victimised,
surrendered the information on condition that his/her identity should
not be disclosed.
”  (sic).
The
same letter proceeded to state that:
“
There
are also other serious irregularities that we are investigating, some
of which have been brought to our attention as formal
complaints.
The request for access to information was specifically addressed to
you to obtain the necessary documentation
that would assist our
clients to investigate and verify some of the allegations and
information they received.
”
Finally,
paragraph 6 of the letter went on to mention that:
“
By
virtue of the impression that has been created, our clients did not,
as yet, filed a formal court application in the electoral
court for
the postponement of the by-elections and an order for an independent
investigation into the allegations.
”
The
Commission responded to the allegations in several correspondence and
answering papers.  The contents of such response
will be dealt
with later below.  However, I must mention now that the
applicants’ various objections were found to have
no merit at
all.
[13]
The end-result was that a few days before the by-elections scheduled
for 10 and 11 December 2013, the applicants launched
an application
in which they sought an order for the postponement of the pending
by-elections.  They also sought certain ancillary
relief.
The Commission filed an answering affidavit on 10 December 2013.
Regrettably, the application could not be
heard by this Court for
some unforeseen reasons.  The December 2013 by-elections in
Wards 1, 4, 12, 13 and 20 were held as
scheduled. The applicants
contended that as a result of these developments, it became necessary
to file the amended relief as presently
before the Court, and that
the relief sought had not become moot.
THE
MAIN RELIEF SOUGHT
[14]
Having in mind the above background, and the brief description of
the applicant’s allegations of irregularities pertaining
to the
voter registration of candidates, I turn to consider the main and
crucial relief sought by the applicants.  This is
the mandatory
interdict ordering the Commission to cause an independent forensic
investigation into the registration process of
the by-elections held
in August, September and December 2013, as set out more fully in
prayer 1 of the amended notice of motion
dated 28 March 2014.
[15]
The obvious starting-point in resolving the issue was the question
whether this Court possessed the necessary power to grant
the relief
claimed. The process will involve the correct and proper
interpretation of the provisions of the various applicable

legislation as well as the Constitution.
[7]
[16]
In the heads of argument and in closing argument, counsel for the
applicants initially relied on the provisions of
sec 56
of the
Electoral Act, read
with the provisions of subsecs (5) and (6) of
sec
55
of the same Act.  Section 56 of the Electoral Court, under
the heading, “
Powers of Commission
and Electoral Court
”, provides as
follows:
“
If
the Commission or the Electoral Court decides, whether as a result of
an
objection
or
appeal
brought
under section 55 or otherwise, that a serious irregularity has
occurred concerning any aspect of an election, the Commission
or the
Electoral Court may order –
(a)
that
the votes cast at a particular voting station do not count in whole
or in part; or
(b)
that the votes cast in favour of a registered party at a particular
voting station must be deducted in whole or in part from
the votes
cast in favour of that registered party in that election.
”
It
was equally relevant to refer to the provisions of sec 55 of the same
Act, which deals with, “
objections
material to final results of the election
”,
and provides that:
“
(1)
Any interested party may lodge with the Commission an objection that
is material to the determination of the final result of
the election,
in respect of proceedings provided for in –
(a)
Part
1 of Chapter 4 concerning voting;  and
(b)
Parts
2 and 3 of Chapter 4 concerning the counting of votes.
(2)
The
objection must be made to the Commission in the prescribed manner not
later than 21:00 on the second day after the voting day.
(3)
The Commission, on good cause shown, may condone a late objection.
(4)
The Commission, in the prescribed manner, must decide the objection,
and must notify the objector and any other parties involved
in the
objection, of the decision.
(5)
An objector or other party involved in the objection and who feels
aggrieved by the decision of the Commission, may appeal
to the
Electoral Court in the prescribed manner.
(6)
The Electoral Court, in the prescribed manner,
must
consider and decide the appeal
and
notify the parties to the appeal of its decision.
(7)
The result of an election is not suspended pending the decision of
the Electoral Court.
”
(emphasis
added)
Section
2
of the
Electoral Act provides
that in interpreting the Act this
Court must do so in a manner that gives effect to the constitutional
declarations, guarantees
and responsibilities contained in the
Constitution.
[17]
In support of the submission, and indeed later ones, counsel for the
applicants implored this Court to invoke its inherent
powers to
protect and regulate its own process as stipulated in sec 173 of the
Constitution.
CONSTRUCTION
OF SECTIONS 55 AND 56
[18]
It was convenient to first have regard to the proper construction of
the statutory provisions i.e.
secs 56
and
55
of the
Electoral Act on
which counsel for the applicants relied.  In the process, it was
necessary to have regard to the other statutory provisions
governing
elections, as well as the relevant provisions of the Constitution.
[19]
The
onus
was undoubtedly on the applicants to allege and prove that the
statutory provisions on which they relied advanced their cause.

See in this regard
McKay
v Stein
[8]
and
Fundstrust
(Pty) Ltd (in liquidation) v Van Deventer
.
[9]
In regard to the proper interpretation to be placed on the secs under
discussion, the primary rule, including ascertaining
the intention of
the legislature, as enunciated in
Union
Government v Mack,
[10]
was
confirmed in
Du
Plessis v Joubert.
[11]
There
it was stated that:
“
Dit
is ‘n primêre reël van wetsuitleg dat die woorde van
‘n wetsbepaling in hul gewone, alledaagse betekenis
verstaan
moet word, tensy dit vasstaan dat daardie betekenis in stryd is met
die duidelike bedoeling van die Wetgewer soos blyk
uit die statuut as
geheel en ander tersaaklike omstandighede.  In so ‘n geval
kan van die gewone betekenis van woorde
afgewyk word ten einde aan
die duidelike bedoeling van die wetgewer gevolg te gee.
”
This
rule that the language of the Legislature should be read in its
ordinary sense, is still recognised as a basic rule of construction.

See in this regard LAWSA.
[12]
[20]
Much later, and in
Rashavha
v Van Rensburg,
[13]
the Court had occasion to deal with the interpretation of
secs 8(4)
and
10
(3) of the
Extension of Security of Tenure Act 62 of 1997
.
In ultimately refusing condonation for the late filing of the appeal,
the Court at para [14] of the judgment, said:
“
The
argument is absurd, and was rejected in clear terms by the court of
first instance and by the Land Claims Court. The words of
section
8(4)(b)
are clear.  There is no need to resort to an
interpretation of a section, generous, purposive or otherwise, where
there is
no uncertainty as to its meaning.  The appellant, in
order to rely upon the section, would have to show that at the time
when
the eviction was sought, she had resided on the farm for 10
years and was at least 60 years old.  That she could not do.
”
[21]
In applying the above principles to the facts of the present
application, it was more than plain that upon a proper reading
of the
language of the Legislature, it could never have been the intention
to clothe this Court with jurisdictional powers to grant
the main
relief as claimed by the applicants, as contended for by their
counsel.  If that was the intention, the Legislature
would have
said so in express terms.  Such power could not be implied.
Indeed, the same construction applies to the other
relevant
legislation dealing with elections.
[22]
The preamble to the
Electoral Act provides
that it was intended ‘
to
regulate elections of the National Assembly, the Provincial
legislatures and municipal councils; and to provide for related
matters’.
Section
56
of this Act, clearly provides for different powers of the
Electoral Court in respect of the result of elections. It
specifically
provides for the powers of the Electoral Court to
decide, “
as a result of an
objection or appeal brought under section 55 or otherwise
,
that a serious irregularity has occurred concerning any aspect of an
election
”
.
The sec then proceeds to deal with how votes in an election may be
adjusted by either the Commission or this Court (emphasis added).

Section 55 of the same Act on the other hand, deals with “
objections
material to final results of elections
”.
It is implicit in this sec, again on the plain reading of the
language of the Legislature, envisages that an objection
was lodged
by the applicants.  In particular, subsections (2), (5) and (6)
provide, respectively, that the objection must
be made to the
Commission in the prescribed manner, and that “
an
objector or other party involved in the objection and who feels
aggrieved by the decision of the Commission, may appeal to the

Electoral Court in the prescribed manner
”,
and finally, that, “
The
Electoral Court in the prescribed manner must consider and decide the
appeal …
”.
It was common cause that although objections were lodged by the
applicants with the Commission in respect of the
September 2013 and
December 2013 by-elections, such objections were found to have no
merit at all.  We do not have before
us an appeal by the
applicants against the dismissal or rejection of their objections by
the Commission.  Instead, the applicants
approached this Court
by way of motion proceedings.  More on this kind of procedure
will be discussed later.  That being
so, it could hardly be
argued that this Court has the requisite jurisdiction to entertain
the interdictory relief sought by the
applicants i.e. ordering the
Commission to cause an independent forensic investigation into the
by-elections concerned. To do so,
would be to usurp the powers,
functions and duties of the Commission as provided for in the
relevant statutory provisions, as well
as the Constitution. The
relief sought by the applicants in the main prayer, was in any event,
so drastic and invasive that it
could never had been the intention of
the Legislature to clothe this Court with such powers. It would have
absurd repercussions,
to say the least.  See
Rashavha
v Van Rensburg, supra
.
[23]
It is so that when the above hurdles were pointed out to counsel for
the applicants during argument, the contentions were abandoned,

correctly so in my view. Instead, counsel for the applicants resorted
to reliance on subsec (3)(a) of
sec 7
of the
Electoral Commission
Act.
The
latter section, under the heading “
Terms
of office, conditions of service, removal from office and suspension
of commissioners
” provides in
sec
7(3)(a)
that a commissioner (of the Commission) may only be removed
from office by the President:
“
(i)
on the grounds of misconduct, incapacity or incompetence,
(ii)
after a finding to that effect by a committee of the National
Assembly upon the recommendation of the Electoral Court; and
(iii)
the adoption by a majority of the members of that Assembly of a
resolution, calling for that commissioner’s removal
from
office.
”
[24] Once more,
upon a proper reading of the language of the Legislature, the wording
of
sec 7(3)(a)
is readily clear.  In the first place,
sec 7
deals with the conditions of service and the removal and suspension
of commissioners from office.  Furthermore, the wording
in
subsec (3)(a)(ii) that:
“…
upon
the recommendation of the Electoral Court
”
could
never be properly interpreted to mean that this Court is empowered to
grant the relief sought by the applicants.  In
the end, counsel
for the applicants proceeded to rely on the provisions of sec 20(7)
of the Commission Act for the submission that
this Court has the
power to grant the main relief.  Section 20(7) provides that:
“
The
Electoral Court may investigate any allegation of misconduct,
incapacity or incompetence of a member of the Commission and make
any
recommendation to a member of the National Assembly referred to in
section 7(3)(a)(ii).
”
The
contention has already been shown to be untenable and of no
assistance to the applicants. Section 20(7) concerns the power of
the
Electoral Court to investigate allegations of misconduct, incapacity
or incompetence of a member of the Commission.
[14]
It too, cannot be of any benefit to the applicants’ cause. This
much was conceded by counsel for the applicants.  In
summation,
it was conceded on behalf of the applicants that this Court in fact
does not have the power to grant the interdictory
relief sought.
This Court was established under sec 18 of the Commission Act.
[15]
It is therefore a creature of statute. In the full court decision of
this Court, namely
Inkatha
Freedom Party v Electoral Commission
,
[16]
the Court had to determine the issue whether it had the power to
grant costs in litigation.  At para [6] of the judgment,
the
Court (per Mthiyane JA) said:
“
The
Electoral Court is a creation of the statute. Dealing with a similar
statutory tribunal Ackerman J said (at 492G-H) that:
‘
An
electoral tribunal, like a magistrate’s court, is a creature of
statute.  It derives its jurisdiction from the legislative

measures which accord it its existence. It possesses no jurisdiction
beyond that granted by the statute creating it. It has no
inherent
jurisdiction such as is possessed by the Supreme Court and may claim
no authority which cannot be deduced from the four
corners of the
statute under which it is constructed.
This
was said in respect of an electoral tribunal but it is of equal
application to this Court …
Section 20
of the
Electoral
Commission Act deals
with the Court’s powers, duties and
functions, but confers no express powers upon it to make an order for
costs.’
”
[25]
In my view, all of the above should put to rest the applicants’
contentions based on sec 20 of the Commission Act to
the effect that
this Court has the requisite power to grant the interdictory relief
sought in the main prayer.  This applied
equally to the
submissions premised on
secs 55
and
56
of the
Electoral Act. It
is
readily apparent that, to accede to the interpretation contended for
by the applicants, would be tantamount to circumventing
the context
of the clear wording and construction of the various statutory and
constitutional mandates conferred on the Commission,
as argued by the
Commission, and quite correctly so.
THE
APPLICANTS’ ALTERNATIVE RELIEF
[26]
I turn to the applicants’ claim for ‘
alternative
relief
’
as advanced by their counsel in closing argument.  The further
and/or alternative relief was set out in the amended
notice of
motion. For the sake of clarity, and possibly, of repetition, the
alternative relief claimed under prayer 4 of the amended
notice of
motion,
[17]
was depended on
the success of the main prayer. The latter relief has been found to
be unachievable and counsel for the applicants
had difficulty in
advancing argument to the contrary. Significantly, the relief now
claimed under prayer 4 of the amended notice
of motion,
[18]
was still depended on the findings of the report of the independent
forensic investigation envisaged in the main relief. On this
basis
alone, it could well be argued that the entire relief claimed under
prayer 4 of the amended papers was non-suited, and that
should have
signalled the end of the applicants’ complaints and grievances
regarding voter registration and the voters’
roll during the
by-elections. However, counsel for the applicants implored us to
invoke our inherent jurisdiction to find that
the irregularities
which occurred in the by-elections, on their version, were of such
gross materiality that this Court was obliged
to intervene and to set
aside the declared result thereof, and order the Commission to
convene fresh by-elections in the wards
implicated.  In this
regard, reliance was placed on the provisions of s 173 of the
Constitution. The
Inkatha
Freedom Party
matter
,
supra,
made it clear that this Court possessed no inherent jurisdiction.
[27]
The submissions were in the end confined to, especially prayers 4.1
and prayer 4.2 of the amended notice of motion. Prayer
4.1, it will
be recalled, sought an order that ‘
the
unlawful election of any candidate in any particular ward be set
aside and that the first respondent be ordered to convene new

by-elections in such ward, where such candidate(s) was/were
elected
’.  It was plain that
the relief claimed in prayer 4.2, on its turn, was depended on the
finding whether prayer 4.1 was
competent.  The submissions were
made on the basis that since there were certain common cause facts
showing significant irregularities
leading to the by-elections, this
Court was obliged to grant the alternative relief on statutory and
constitutional grounds of
invalidity.  There was obviously much
to be said about the alternative relief claimed, since the outcome of
this matter was
of national importance and public interest in the
sphere of electoral jurisprudence.  However, I do so later but
first deal
with the applicants’ allegations of irregularities
of a material nature.  Counsel for the Commission, although
arguing
strongly against the competence of the alternative relief as
being ambiguous, left it to the Court to determine whether there was

any constitutional basis justifying the setting aside of the
by-elections.
THE
APPLICANTS’ CONTENTIONS ON IRREGULARITIES
[28]
The applicants’ allegations based on the alleged
irregularities, stripped to the bone, came to this:  the
Commission
registered voters not normally resident within the
demarcated area of the specific area of the specific ward in which
they were
registered to vote;  voters appearing on the voters’
roll registered in particular wards, without any addresses recorded

on the applications for registration as a voter (REC 1) form, i.e.
voters who were impossible to verify if they did exist, and
appear
correctly on the voters’ roll, and within the demarcated ward;
the publicized election timetable compiled in terms
of the
Electoral
Act,
[19
]
was not adhered to,
save for one aspect relating to special votes; that the certified
voters’ roll,
[20]
was
only made available on 4 December 2013 as opposed to 14 November
2013; that as a consequence, no verification could be made
on REC 1
forms;  that there was an unusual increase of some 1 900 special
votes,
[21]
which the
applicants were unable to verify; at a meeting of the Provincial
Party Liaison Committee (“
the
PPLC
”)
the second applicant was approached by a member of the Commission,
who provided certain information on condition of anonymity
(“
the
whistle blower
”).
The whistle blower informed that the Commission, for purposes of
registration for voters for the 10 and 11 December
2013 by-elections
allowed approximately 2 100 voters from wards not taking part in the
by-elections to be registered in Wards 1,
4, 6, 11, 12, 13, 18, 20 or
26 (the applicants could not identify the split); and that the
Commission registered more than 70 voters
not eligible to vote at all
in the different wards. Based on the above, which the applicants
described as “
the
top of the iceberg of the irregularities at the Commission
”,
the applicants concluded that, ‘
it
certainly appears that the by-elections held on 17 and 18 September
2013 were tainted’.
[22]
[29]
The first applicant proceeded to submit a complaint to the
Commission in terms of
sec 65
of the
Municipal Electoral Act in
respect of the September 2013 by-elections. I deal with the outcome
of the objection later below.  Each of the applicants
proceeded
to set out what was termed certain irregularities in their respective
wards. These are dealt with immediately below.
[30]
The second applicant was the registered independent candidate for
Ward 13, which is known as ‘
Die
Bo-Promosa Ward
’. According to
him, when he took part in previous by-elections in 2011, there were
approximately 3 500 registered voters
in the ward. However, the
figure of 4 078 registered voters for the December 2013 by-elections
provided by the Commission showed
an incredible increase.  The
REC 1 forms in respect of the voters in the informal settlement
called “
Maricana
”,
in Ward 13 contained no addresses, and that Maricana fell in Ward 17
and not 13.  The addresses of the voters situated
in Ward 21
appeared on the voters’ roll for Ward 13.  The third
applicant was registered as a candidate for Ward 20.
In the
2011 by-elections the ward had 700 registered voters. However, he was
surprised to see that for the December 2013 by-elections
there were 1
379 registered voters reflected by the voters’ roll.  The
bundle of particulars of voters for Ward 20 which
were supplied by
the Commission, showed that no street names or numbers were provided,
and merely a suburb.  The same applied
to an informal settlement
called “
Baipei
”.
More than 350 voters on the voters’ roll were resident outside
Ward 20.  It was alleged that the name
Baipei was used for more
than one informal settlement over various wards.
[31]
The first applicant’s complaints were as follows:  He was
registered as a candidate for Ward 18 at the time.
He received
from the Commission the REC 1 registration forms.  He
scrutinized the forms, assisted by other applicants. He
deduced from
the forms that:  voters residing in Ward 19 were allowed to cast
votes in Ward 18;  one voter, Ms Anna Nozindaba
Sebueng
(“
Sebueng
”),
informed the first applicant that she never completed an REC 1 form
to vote in Ward 18, but was picked on the voting day
to vote in Ward
18.  She denied residing at the address provided in the form
with her name thereon; on the first applicant’s
version, an
alarming number of 612 REC 1 forms for Ward 18 given to him by the
Commission contained non-existent addresses;
on a further 174
REC 1 forms street addresses were not supplied, but a generic name of
Baipei Extension 11 or Extension 6 was used
to describe the proximity
of the physical addresses; the applicants also deduced that the names
of 28 voters were found not to
be on the voters’ roll and
registered to participate in the by-elections that took place on 18
September 2013.  On further
investigations, according to the
applicants, the last-mentioned voters had not only already cast their
votes in the 2013 by-elections,
but were also declared legible to
cast votes in other wards, notably, Wards 1 and 4 where further
by-elections were due to be held
on 10 and 11 December 2013;  in
addition, so the allegations continued, some 31 voters were said to
have registered from previous
residential addresses in other
neighbouring towns and, even provinces;  voters were bussed into
Ward 18 where the first applicant
resided, which bussing-in was
contradictory to the influx of new residents in the ward;  and
the residential addresses of
voters were not verified by the
Commission. A rather significant allegation made in the founding
papers was that the applicants
found it impossible to assess
accurately, the alleged irregularities in respect of each ward due to
time, resources and manpower
constraints.
[23]
The same significance applied to the first applicant’s
admission that he lodged an objection to the Commission in terms
of
sec 65
of the
Municipal Electoral Act in
respect of the elections
that occurred on 17 and 18 September 2013 late.  The objection
was admittedly dated 20 September
2013, and to which the Commission
responded, as indicated immediately below.
THE
RESPONSE OF THE COMMISSION
[32]
The Commission duly responded to the above allegations both by way of
correspondence and in the answering papers. The response
was rather
extensive as it dealt with both factual and legal matters, including
preliminary issues.
[24]
[33]
The preliminary issues were based on certain statutory provisions.
These included that the application was premature
since the
applicants had not exhausted their internal and statutorily
guaranteed remedies as provided for in
sec 15
of the
Electoral Act as
well as
sec 65
of the
Municipal Electoral Act.  These
provisions, as cited later below deal with objections to the voters’
roll and objections material to the result of an election.
The
Commission argued that these legislative provisions constituted
checks and balances that are inherent in the scheme of the
regulatory
framework which governs elections.
[34]
On the merits, and by way of background, the Commission explained
that once the by-elections were postponed for various reasons
in
September 2013, and October 2013, a new date, i.e. 11 December 2013,
was set.  This was in respect of by-elections in Ward
1, 4, 11,
12, 13 and 20 of the Tlokwe Municipality.  Although the new date
was close to the festive season, no formal objections
were lodged by
any of the candidates or parties who were contesting the elections.
On 9 and 10 November 2013 voter registration
occurred in all the
affected Tlokwe Local Municipality wards.  Measures were in
place to deal extensively with fraud.
One of these measures was
the presence of the South African Police Service who participated
alongside the officials of the Commission.
The Police assisted in
informing voters that irregular activities constituting criminal
conduct would be dealt with strictly in
terms of the law.
[35]
In addition, the proclamation of the new election date, and the
registration period on 11 November 2013, occurred. The voters’

roll, as it appeared on the latter date, was the final version of the
roll.  The Commission informed all political parties
and
independent candidates that if there were no objections to the
voters’ roll by 17h00 on 11 November 2013, the roll would
stand
as a final voters’ roll. There were no such objections.
[36]
On 15 November 2013, the Commission had the Election Timetable
proclaimed in the relevant Government Gazette.  The proclamation

set out in clear terms the essential elements of the timetable and
the procedure as prescribed in
sec 6(2)
of the
Municipal Electoral
Act. The
sec under Chapter 2, deals with the segments of the voters’
roll to be used in elections, provides that ‘
by
no later than a date stated in the timetable for an election, the
chief electoral officer must; (a) certify the segments of the
voters’
roll for the voting districts to be used in the election, and (b)
make such segments available for inspection at
the commission’s
head office; the office of the commission’s provincial
representative in the province in which the
election will take place;
and the office of the commission’s local representative in the
Municipality in which the  election
will take place
’.
The Commission, in the answering papers, contended that a free copy
of the certified voters’ roll is only made
available to
candidates when they are issued with their certificates and as such
confirmed as registered candidates.  The
certification in this
matter in fact took place on 25 November 2013.  However, before
this date, the voters’ roll was
available for inspection at the
local offices of the Commission or the Tlokwe Local Municipality
offices.
THE
PROVISIONS OF
SECTION 15
OF THE
ELECTORAL ACT
[37]
Prior to dealing with the Commission’s other responses to the
first applicant’s additional grievances, it was necessary
to
deal briefly first with the provisions of
sec 15
of the
Electoral
Act. The
sec provides as follows:
“
(1)
In relation to any segment of the voters’ roll or a
provisionally compiled voters’ roll, any person may object
to
the Commission in the prescribed manner to –
(a)
the
exclusion of any person’s name from that segment;
(b)
the
inclusion of any person’s name in that segment; or
(c)
the
correctness of any person’s registration details in that
segment.
(2)
A person who objects to the exclusion or inclusion of the name of
another person, or to the correctness of that person’s

registration details, must serve notice of the objection on that
person.
(3)
The Commission must decide an objection and, except for an objection
in relation to a provisionally compiled voters’
roll, by not
later than 14 days after the objection was made, notify the following
persons of the decision:
(a)
The
person who made the objection;
(b)
the
chief electoral officer; and
(c)
in
the case of an objection against the exclusion or inclusion of the
name, or the correctness of the registration details, of a
person
other than the objector, that other person.
(4)
The chief electoral officer must give effect to a decision of the
Commission in terms of subsection (3) within three days.
(5)
No appeal may be brought against the Commission’s decision,
subject to
section 20(2)(a)
of the
Electoral Commission Act.
”
[38
]
I have already dealt with the provisions of
sec 20
of the
Electoral
Act,
supra
.
On a proper reading of the provisions of
sec 15
of the
Electoral Act,
it
is readily plain that it creates the right to any person to object
in relation to any segment of the voters’ roll to the
Commission in regard to the inclusion or exclusion of the name of any
voter, or the correctness of any person’s registration
details
in that segment.  The Commission in turn, is also obliged to
consider and decide the objection lodged expeditiously,
i.e. within
14 days after it was made. This was of particular importance in the
context of the present matter since the applicants’
grievances
were based on the allegation that voters who took part in the
by-elections were either irregularly registered or excluded
from
voting.  The provisions of
sec 15
also give content to the
constitutional mandate of the Commission to ‘
manage
elections of national, provincial and municipal legislative bodies in
accordance with national legislation, and ensure that
those elections
are free and fair
’, as provided
for in sec 190(1) of the Constitution.  The provisions of sec 15
also put in place appropriate checks
and balances to ensure that the
rights of citizens to free and fair and regular elections for any
legislative body, as enshrined
in the Bill of Rights, were realised.
It was common cause that, save for the first applicant’s
objection in terms of
sec 65
of the
Municipal Electoral Act, and
an
application for access to information under the Promotion of Access
to Information Act 12 of 2000 (“
PAIA
”),
the applicants did not utilise the statutory mechanism of objecting
to the voters’ roll.  When this was raised
with
applicants’ counsel in argument, he submitted simply that the
invocation of the remedy provided in sec 15 was not considered
a
practical or viable option at the time.  The submission was not
convincing at all.
[39]
In the answering papers, the Commission confirmed that the first
applicant, in particular, raised various complaints with it.

However, this was in the context of a request for the postponement of
the by-elections scheduled for 23 October 2013 as well as
an
application for access to information in terms of PAIA.  In
addition, there was an objection lodged in terms of
sec 65
of the
Municipal Electoral Act.   On
24 October 2013 the
Commission provided the applicant with the information he sought.
This included a spreadsheet containing
the names of all voters that
registered as first time voters, and those who re-registered during
the registration campaign between
10 and 12 August 2013 for the
by-elections.  The Commission also provided a training manual
used to train members of its staff
involved in the administration of
applications for voter registration.  In short, the complaints
were three-fold.  The
first were allegations of irregular voter
registration in regard to which the Commission responded, as stated
earlier above, that
there was no formal objection lodged in terms of
sec 15
of the Electoral Act.However, the Commission subsequently
conducted its own administrative investigation into this aspect, and
reported back to the applicants as mentioned below. The second
complaint concerned the request for access to information dealt with

above. The third complaint was contained in the objection lodged in
terms of
sec 65
of the
Municipal Electoral Act which
I deal with
presently.
THE
PROVISIONS OF
SECTION 65
OF THE
MUNICIPAL ELECTORAL ACT
[40
]
Section 65
provides that:
“
(1)
Any interested party may lodge with the Commission an objection
material to the result of an election, concerning –
(a)
any
aspect of the voting or counting proceedings provided for in Chapter
5 or Chapter 6, respectively; or
(b)
alleged
unlawful –
(i)
interference
with or obstruction of election activities or processes in the
vicinity of, at or in a voting station; or
(ii)
interference
with or influencing, intimidation or obstruction of voters or
prospective voters in the vicinity of, at or in a voting
station.
(2)
An
objection must be lodged by serving by no later than 17:00 on the
second day after voting day, at the Commission’s national

office at the prescribed address, a written notice containing –
(a)
a
reference to the election concerned and the relevant section of the
Act in terms of which the objection is brought;
(b)
the
full name and physical address of the objecting party;
(c)
the
postal address and telephone number where the objecting party can be
contacted and, if available, the party’s facsimile
number and
e-mail address;
(d)
the
interest of the objecting party in the matter;
(e)
details
of the objection and the aspect of the election concerned;
(f)
detailed
reasons for the objection;
(g)
the
relief sought;
(h)
a
list of supporting documents accompanying the notice of objection;
and
(i)
proof
of service of copies of the notice and annexures on all other
interested parties.
(3)
The
Commission may, on good cause shown, condone a late objection.
(4)
In
considering and deciding the objection referred to in this section,
the Commission may take any one or more, or all, of the following

actions:
(a)
Investigate
the factual basis of the objection or cause it to be investigated;
(b)
afford
other interested parties an opportunity to make written or verbal
submissions;
(c)
call
for written or verbal submissions from other persons or parties;
(d)
call
upon the objecting party to submit further information or arguments
in writing or verbally; or
(e)
conduct
a hearing on the objection.
(5)
The
Commission must consider the objection and either reject or uphold
it.
(6)
If
the  Commission  decides  to  uphold  the
objection before the result of the election had
been determined, the
Commission may –
(a)
decide
that the votes cast at a particular voting station do not count in
whole or in part;
(b)
decide
that the votes cast at a particular voting station in favour of a
party or candidate must be deducted in whole or in part
from the
votes cast in favour of that party or candidate in the election; or
(c)
reduce
the number of votes cast in favour of a party or a candidate.
(7)
If
the Commission decides to uphold the objection after the result of
the election had been declared, the Commission may –
(a)
amend
the result; or
(b)
if
it is of the opinion that the seriousness and extent of unlawful
conduct or irregularities that occurred may justify the setting
aside
of the election, refer the objection to the Electoral Court for its
decision.
(8)
The
Commission must immediately notify the objecting party and any other
interested parties involved in the objection of its decision
in terms
of subsection (5).
(9)
An
objecting party or other party involved in the objection who feels
aggrieved by the decision of the Commission may, within seven
days of
the Commission’s decision, lodge an appeal to the Electoral
Court in terms of
section 20
of the
Electoral Commission Act and
the
Rules of the Electoral Court.
(10)
The
Electoral Court must –
(a)
consider
an appeal contemplated in subsection (9) and either –
(i)
reject
the appeal;
(ii)
amend
the decision of the Commission;
(iii)
set
aside the election; or
(iv)
make
an appropriate order; and
(b)
notify
the parties to the appeal of its decision.
(11)
The
Electoral Court –
(a)
may,
after having considered an objection referred to it by the Commission
in terms of subsection (7)(b), either –
(i)
reject
the objection;
(ii)
amend
the result of the election;
(iii)
set
aside the election; or
(iv)
make
an appropriate order; and
(b)
must
notify the objecting party of its decision.
(12)
The declared result of an election is not suspended by an appeal in
terms of subsection (9) or a referral to the Electoral
Court in terms
of subsection (7)(b).
”
[41]
On a proper reading of the provisions of
sec 65
, it is also readily
clear that it was intended to provide adequate relief to any
interested party to lodge an objection
material
to the result of an election
about
any aspect of the voting proceedings, and/or alleged unlawful
interference or obstruction at a voting station. The sec contains

important provisions, such as that an objection must be lodged
by
serving by no later than 17h00 on the second day after voting, at the
Commission’s national office
,
and that the Commission
may
investigate the factual basis of the objection or cause it to be
investigated
.
Equally important are the provisions that
the
Commission must consider the objection and either reject or uphold
it
, and
that
if the Commission decides to
uphold the objection after the result of the election had been
declared
,
the Commission may amend the result or
if
it is of the opinion that the seriousness and extent of unlawful
conduct or irregularities that occurred may justify the setting
aside
of the election, refer the objection to the Electoral Court for its
decision
.
(underlining added).
[42]
Indeed, the provisions of
sec 65
have on numerous occasions in the
past been considered by this Court.  For example, in
Independent
Party v Electoral Commission,
[25]
the Court in allowing an appeal, expressed the view that:
“
Implicit
in s 65(1) of the Local Government:
Municipal Electoral Act
2000
, seen against the constitutional and legislative framework
relating to the Independent Electoral Commission’s role in
elections,
is that the Commission is the functionary which is
required to determine whether an objection lodged in terms of the
section is
one within the contemplation of
s 65(1).
It could
never have been intended by the Legislature that an administrative
official, without any delegated power, should
be entitled to decide,
without reference to the Commission, what is in fact the vital
ingredient of the objection.  The Commission
may well be
entitled to act in appropriate circumstances on the advice or
recommendation of its officials, but ultimately it must
apply its
mind to the matter and decide it in accordance with the provisions of
s 65(4)(a).
”
In
that matter, the Court also found that sec 65(2) of the Act makes
specific provisions for condonation of a late objection by
the
Commission, on good cause shown.  See also
National
Democratic Convention and Another v Electoral Commission and
Others
,
[26]
and
Inkatha
Freedom Party, Nongoma and Another v Electoral Commission and
Others.
[27]
[43]
In the instant matter, the Commission received the first applicant’s
objection in terms of sec 65 on 25 September 2013.
It was dated 20
September 2013.  The Commission considered the objection but
rejected it on several grounds.  These included
that the
objection was lodged out of time and not as prescribed by sec 65(2)
of the Act.  There was no good cause shown to
condone the late
lodging of the objection, in the view of the Commission.  The
Commission also found that the objection failed
to comply with the
provisions of sec 65(1)(a)(i) or (ii).
[44]
The decision of the Commission in rejecting the objection, in the
circumstances of the case, could not be faulted.  The
objection
was lodged in regard to the by-elections scheduled for 18 September
2013 only.  The remedy available to the applicants
was clearly
to invoke the provisions of sec 65(9) which makes provision for an
aggrieved party whose objection was rejected by
the Commission, to
lodge an appeal to this Court in terms of sec 20 of the Commission
Act and the Rules of this Court.  The
appeal had to be lodged
within seven days of the Commission’s decision. This
admittedly, did not happen.  Instead, we
have before us motion
proceedings.
THE
COMMISSION’S ADMINISTRATIVE INVESTIGATION
[45]
In the process of determining the materiality or otherwise of the
irregularities as alleged by the applicants, it was instructive
to
have regard to some of the Commission’s responses thereto.
The Commission contended that it duly investigated administratively

the broad allegations of fraudulent registration of voters in order
to ascertain whether there was any impact on the results of
the
by-elections.  The investigation was concluded in March 2014.
The result of the investigation was contained in various
annexures to
the answering papers, as well as in a later rejoinder.
[28]
[46]
The report of the investigation was rather comprehensive.  In
summary, it showed that, in the 9 wards in the Tlokwe Local

Municipality, there were some 3 832 persons who applied for
registration as voters between January 2000 and February 2014.

This was at the close of the voters’ roll for the May 2014
national and provincial elections;  an additional spatial

address database was sourced from the Tlokwe Local Municipality in
order to enhance the Commission’s National Address Database,

since municipalities are custodians of such spatial address databases
which are essential for municipal planning purposes;

thereafter, a desktop electronic exercise was undertaken in order to
link the REC 1 forms addresses presented by voter registration

applicants. The results of the electronic analysis showed that of the
above figure of 3 832 total number of voters:
(1)
2 108 applicants for voter registration correctly registered in the
voting districts of ordinary residents; the balance of some
1 724
applicants were captured as follows:
(2)
359 applicants were registered in other voting districts but within
the wards in which they resided;
(3)
332
applicants did not have sufficient conventional addressed to match
with the spatial addresses provided by the municipality;
(4)
1 040 applicants applied for registration outside their ward of
residence.
[47]
As the figure of 1 040 applicants showed incorrect registrations,
this prompted the Commission to carry out an inspection
in
loco
on 1 March 2014.  The field
team of the Commission made several significant observations.
This was that in respect of
Wards 4, 11, 14 and 19, the configuration
of wards in the municipality lent itself to cross-boundary
registrations.  The problem
was compounded by the phenomenon of
the emergence of unplanned informal settlements such as Maricana
which is situated in Ward
17 even though the residents of Maricana
formed part of the community of Ward 13.  The settlement
continued to expand with
new residents establishing homes there on a
daily basis.  Closely connected with the phenomenon of
increasing informal settlements,
was the challenge that ward
boundaries were not clearly defined and observed.
[48]
The Commission explained the procedure on voting day:  it uses a
Voter Participation Application on its Portable Barcode
Scanning
Unit, commonly called a ‘
zip-zip
’
machine.  On scanning a voter’s identity document on
voting day, a receipt is generated by the zip-zip machine,
indicating
the sequential number of that voter on the voters’ roll. The
identity number of the voter was recorded as well.
After the
close of voting day, the voter participation information on the
zip-zip was then uploaded through the Wide Area Network
(“
WAN
”)
system into a database.  Through this database, the Commission
could determine who voted at which voting station,
including the time
of voting.
[49]
Based on the above information, the Commission contended that it was
enabled to determine who, amongst any incorrectly registered
voters,
voted and also in which voting district they voted.  The
analysis of the impact of these incorrectly registered voters
on the
outcome of the by-elections of September 2013 and December 2013, was
mirrored in annexure “MSM11”.
[29]
[50]
What was undoubtedly crucial on this aspect of the materiality or
otherwise of the alleged irregularities, was the methodology
used by
the Commission to assess the impact of incorrectly registered voters
on the by-elections. In the first place, the Commission
determined
the margin of victory in the ward.  This was the difference
between the number of votes between the winning candidate
and the
second highest candidate.  Secondly, the Commission proceeded to
determine the number of incorrectly registered voters
who voted.
This information was derived from the uploaded voter registration
data as captured with the zip-zip machine on
voting day, and uploaded
onto a database. The Commission then subtracted the number of votes
cast by incorrectly registered voters
from the winning candidate.
If the result bore a positive number, then this was an indication
that the impact of the participation
of incorrectly registered voters
in fact did not influence materially the outcome of the
by-elections.  In the event of the
result showing a negative
number, then that indicated that the impact of the involvement of the
incorrectly registered voters could
have influenced materially the
outcome of the by-election. The network was based on the assumption
that all incorrectly registered
voters voted for the successful
candidate, a fact that the Commission said it could not determine
with precision given the constitutional
imperative for a secret vote.
[51]
Based on the assumption of the analysis of the impact of incorrectly
registered voters on the outcome of the September 2013
and December
2013 by-elections, as contained in annexure “MSM11”, the
Commission scrutinised each of the 9 wards in
question. According to
it, the following picture emerged:
Ward
1
:
There were 187 incorrectly registered voters of whom 96 voted.
The margin of victory was 891.  Subtracting 96
votes from the
margin of victory, the outcome remained the same.
Ward
4
:
There were 108 incorrectly registered voters of whom 39 voted. The
margin of victory was 42.  Subtracting 39 from the
margin of
victory, the outcome remained the same.
Ward
6
:
There were 34 incorrectly registered voters of whom 19 voted.
The margin of victory was 389.  Subtracting 19
votes from the
margin of victory, the outcome remained the same.
Ward
11
:
There were 26 incorrectly registered voters of whom 6 voted.
The margin of victory was 559.  Subtracting 6 votes
from the
margin of victory, the outcome remained the same.
Ward
12
:
There were 38 incorrectly registered voters of whom 7 voted.
The margin of victory was 1 100.  Subtracting 7
votes from the
margin of victory, the outcome remained the same.
Ward
13
:
There were 433 incorrectly registered voters of whom 249 voted.
The margin of victory was 283.  Subtracting 249
votes from the
margin of victory, the outcome remained the same.
Ward
18
:
There were 14 incorrectly registered voters of whom 8 voted.
The margin of victory was 364.  Subtracting 8 votes
from the
margin of victory, the outcome remained the same.
Ward
20
:
There were 148 incorrectly registered voters of whom 90 voted.
The margin of victory was 197.  Subtracting 90
from the margin
of victory, the outcome remained the same.
Ward
26
:
There were 52 incorrectly registered voters of whom 46 voted.
The margin of victory was 525. Subtracting 46 votes
from the margin
of victory, the outcome remained the same.
Based
on the above, the Commission came to the conclusion that the
participation of incorrectly voters did not materially affect
the
outcome of the by-election.
PARTY
LIAISON COMMITTEE MEETINGS
[52]
The Commission also placed before the court minutes of meetings it
held with the Provincial Party Liaison Committee (“
PPLC
”)
on 2 September 2013, 2 October 2013 as well as 3 December 2013.
The contents of the minutes showed that various issues
related to the
by-elections were raised by the various parties involved. Not much
argument was based on these minutes.
THE
INVESTIGATION OF MS A N SEBUENG
[53]
The Commission further investigated the issue concerning the
registration and voting record of Ms Sebueng raised by the
applicants.
The applicants complained that Ms Sebueng neither resided
in nor ever registered to vote in Ward 18, yet she was allegedly
ferried
to a voting station in Ward 18 where she voted.  The
printout from the Commission’s voter registration system
reflected
this voter’s voting history. She registered on 11
August 2013 to vote in Ward 18, and her voter status was verified.

Ms Sebueng, according to registrations, completed REC 1 forms on 10
October 2005, apparently under her maiden surname of “
Jantjie
”,
and also on 8 August 2013 this time under her married surname of
Sebueng.  However, her national identity number entered
on the
REC 1 form, and the one captured by means of the zip-zip machine,
were identical.  The Commission’s Deputy Chief
Electoral
Officer and other officials visited her address located in Ward 18 on
1 March 2014, where they spoke to her husband,
Mr Modise Andries
Sebueng. He confirmed that he was married to the voter in question
and that they had been resident at the mentioned
address for
approximately eight years.  At the hearing of the matter, an
affidavit attested to by Ms Sebueng on 22 December
2014, had already
been filed.  In it, she denied categorically the contentions of
the applicants concerning her registration
and voting.
CRITICISM
OF DATABASE
[54]
The Commission, based on its investigations outlined above, was
satisfied that the alleged irregularities were not material
so as to
set aside the by-elections.  This contention was mirrored in the
heads of argument.  The applicants in the surrejoinder

challenged most of the contentions of the Commission, and remained
adamant that the by-elections of August, September and December
2013
were vitiated by material irregularities. In essence, the applicants
challenged the Commission’s desktop study investigation
on the
Tlokwe Local Municipality’s database.  The latter
database, so the contention continued, only recorded residents
who
contracted with the Municipality for services, and who were liable
for municipal rates or leasing land from the Municipality
or perhaps
particulars of persons on a waiting list for accommodation in state
funded housing projects. It was also contended that
the database used
by the Commission excluded occupants of informal settlements where no
services were provided.  Consequently,
so the contentions
proceeded, the database could in no way contribute to a proper
voters’ roll or serve as conclusive proof
of the
non-materiality of unlawful registrations, as contended for by the
Commission, nor did it clarify issues raised, regarding
special
votes.
[30]
SPECIAL
VOTES
[55]
I must deal briefly with the issue of special votes as well as the
contentions advanced on both sides in regard thereto. Special
votes
are provided for in
sec 55
of the
Municipal Electoral Act, which
provides that:
“
Any
voter who is unable, on voting day, to cast his or her vote at the
voting station in the voting district where he or she is
registered,
may in the prescribed manner apply to be allowed, prior to voting
day, to cast a special vote within that district.
”
This
sec, on a proper reading, makes it clear that, in furthering the
entrenched right of every citizen to vote in free and fair
elections
in terms of sec 19(2) of the Constitution, the Legislature has made
it possible for voters unable to vote on voting day,
to still do so.
This category could include a variety of inabilities, such as
physical inability, advanced age, pregnancy,
absence from the
Republic of South Africa, a voter being on duty as a member of the
security services in connection with the election
concerned, and/or
voters affected by illness.  The list can never be exhaustive.
The inabilities are described in
sec 33
of the
Electoral Act.
Special
votes are therefore, important in an election, and should be
taken into account properly. This was recognised by this Court in
Inkatha Freedom Party, Nongoma and
Another v Electoral Commission, supra
.
[56]
In the instant matter, the applicants alleged that there was an
irregularity in regard to the special votes cast during the

by-elections. The essence of the complaint was that there was a
marked increase in special votes which votes were not allocated
to a
specific ward. It was further contended that the irregularity was
made possible since the Commission’s officials visited
special
voters unaccompanied by candidates competing in the by-election: this
made it impossible for the applicants to verify the
special votes
cast.
[57]
The Commission, which was also accused of not dealing convincingly
with the allegations relating to the special votes, did
however,
respond in one of the answering affidavits.
[31]
The Commission, in essence, denied the allegations as largely
unfounded.  The increase in voter registration was not

necessarily an indication of an irregularity being perpetrated, it
said. This was after the Commission’s own administrative

investigation. The Commission also countered that the only way the
applicants could monitor the process was to accompany its officials

who conducted the exercises, since there was no known prohibition on
candidates to do so.
[58]
I have deliberately set out
in extenso
the allegations of both parties in regard to the nature of the
irregularities during the by-elections concerned. The main reason
for
doing so was purely to determine whether based on ‘
the
seriousness and extent of unlawful conduct or irregularities that
occurred may justify the setting aside of the election
’,
as provided for in
sec 65(7)(b)
of the
Municipal Electoral Act,
and/or
other statutory applicable legislation, and of course, the
Constitution.
[59]
The Commission, in its heads of argument, and I might add, to its
credit, admitted readily, its statutory obligations and
responsibilities, including sec 19 of the Constitution, in managing
elections. It also identified at the outset that the main complaints

of the applicants related to grave matters concerning the
enfranchisement and possible disenfranchisement of voters, coupled
with
the enormous task it faced during elections.
THE
STATUTORY FRAMEWORK APPLICABLE
[60]
The statutory framework is rather extensive and incapable of complete
recital presently.  To begin with,
sec 7
of the
Electoral Act
provides
that:
“
(1)
A person applying for registration as a voter must do so in the
prescribed manner.
(2)
[Deleted
by
sec 3
of Act 34 of 2003 with effect from 26 November 2013.]
(3)(a)
A person is regarded to be ordinarily resident at the home or place
where that person normally lives and to which that person
regularly
returns after any period of temporary absence.
(b)
For the purpose of registration on the voters’ roll a person is
not regarded to be ordinarily resident at a place where
that person
is lawfully imprisoned or detained, but at the last home or place
where that person normally lived when not imprisoned
or detained.
”
[61]
Section 8(1) of the same Act provides that if the electoral officer
is satisfied that a person’s application for registration

complies with the Act, and that person is a South African citizen,
and at least 18 years of age, the electoral officer
must
register that person
as
a voter by making the requisite entries in the voters’ roll.
Subsection 8(3) in addition, provides that a person’s
name
must
be entered into the voters’ roll
only
for the voting district in which that person is ordinarily
resident
and for
no other voting district (emphasis added). In addition,
sec 9
of the
Electoral Act provides
that:
“
A
registered voter or person who has applied for registration as a
voter and whose name or
ordinary
place of residence
has
changed,
must
apply
in the prescribed manner to have that change recorded in the voters’
roll in that person’s application.
”
(emphasis
added)
[62]
Section 1
of the
Electoral Act does
not define ‘
ordinary
place of residence
’,
but does state that ‘
prescribe
’
means prescribed by regulation in terms of
sec 100
and ‘
prescribed
’
has a corresponding meaning, and that ‘
prescribed
manner
’
includes any prescribed requirement as to time, process or form.
It was also significant that in regard to applications
for special
votes in terms of
sec 33
of the
Electoral Act, Regulation
7(3) of the
Election Regulations, 2004,
[32]
provides that:
“
The
Presiding officer, or a voting officer designated by him or her,
must
consider
every application received and if he or she is satisfied that –
(a)
the
applicant is registered as a voter in that voting district; and
(b)
cannot vote at that voting station due to physical infirmity or
disability, or pregnancy, approve the application and if not,
reject
the application.
’
(emphasis
added)
[63]
The above legislative framework, and other legislation, which show
the statutory power exercised by the Commission and its
officials,
inevitably must also give effect to the provisions of secs 181(1)(f)
and 190(1) of the Constitution, i.e. to strengthen
constitutional
democracy, and to manage the elections, and ensure the elections are
free and fair, respectively.  In this
regard, counsel for the
Commission argued, and quite correctly so in my view, that the
correct approach to the Commission’s
power is aligned to the
principle of legality which prescribes that a public functionary
exercising a public function may exercise
no power and perform no
function beyond that confirmed by law as enunciated in
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council.
[33]
[64]
Indeed, the Commission recognised quite readily, not only the
statutory and constitutional imperatives placed upon it, but
also
that in performing its functions, it is obliged to protect its
competences, functional and institutional integrity.
This is an
arduous task.  As seen earlier, the Commission was accused of
performing its functions in an incorrect and irregular
manner by
especially allowing ineligible voters to register and vote, and not
verifying voters’ addresses, and significantly
exaggerated the
quantity of the special votes cast.  The Commission countered
that it did its best in the circumstances.
It had no statutory
obligation to verify addresses. The irregularities subsequently
discovered after investigations were not material.
[65]
The provisions of
secs 8
and
9
of the
Electoral Act, oblige
the
Commission to register as a voter a person who applies and meets
certain criteria, including South African citizenship.
The
obligation is equally applicable to a voter who changes registration
details.  In the same manner, the presiding officer
or a voting
officer is obliged to consider every application received for a
special vote as contained in
Regulation 7(3).
[66]
In
August
and Another v Electoral Commission and Others,
[34]
the
Constitutional Court had occasion to deal with,
inter
alia
,
the interpretation of
secs 6(1)
,
7
(1),
8
(1) and (2) and
33
(1) of the
Electoral Act, in
the context of the rights of prisoners to vote.
At para [33] of the judgment, the Court said that:
“
Parliament
cannot by its silence deprive any prisoner of the right to vote. Nor
can its silence be interpreted to empower or require
either the
Commission or this Court to decide which categories of prisoners, if
any, should be deprived of the vote, and which
should not. The
Commission’s duty is to manage the elections, not to determine
the electorate; it must decide the how of
voting, not the who.
Similarly the task of this Court is to ensure that fundamental rights
and democratic processes are protected.
”
At
para [25] of the judgment, the Court went on to say that:
“
Section
7(1) of the 1998
Electoral Act provides
:
‘
A
person applying for registration as a voter must do so –
(a)
in
the prescribed manner; and
(b)
only
for the voting district in which that person is ordinarily
resident.’
”
“
The
purpose of the phrase ‘ordinarily resident’ is to
facilitate the electoral process. It will, for example, enable
the
allocation of voters to voting districts, each with their own polling
stations, so that an identified and relatively small
number of voters
resident in that district during the period of registration and
voting will vote in it.  The voters’
roll for each
district will be prepared on the basis of those that have registered
for each district. This will facilitate easy
and accurate
identification on voting day and prevent long queues
.”
At
para [27] of the judgment, the Court went on to say that:
“…
It
is clear from s 7(1) of the Act that the relevant date for
determining where a person is ‘ordinarily resident’ is

the date upon which the person registers.  Whether a person is
‘ordinarily resident’ at that date at a particular
place
will depend on the circumstances of each case.
”
[67]
From the above, it was clear that the Commission has the duty, with
all its inherent difficulties and arduousness, to manage
the
elections in terms of the Constitution and the enabling statutory
framework. It must decide the ‘
the
how of voting, not the who
’.
The Constitutional Court did not disenfranchise prisoners.  The
Court’s interpretation of the words ‘
ordinarily
resident
’, in
sec 7(1)
of the
Electoral Act allowed
for the enfranchisement, rather than
disenfranchisement of voters.  The words ‘
ordinarily
resident
’ do not have a precise
definition, especially in the context of elections.  Whether a
voter was ‘
ordinarily resident
’
during the by-elections under discussion, ‘
will
depend on the circumstances of each case
’.
Indeed, these were some of the challenges faced by the Commission. In
particular, applications for registration of
voters;  the
regulation of the process; managing the compilation of a credible
voters’ roll particularly in the face
of the mushrooming
informal settlements; the awkward demarcation boundaries; the absence
of a statutory obligation and duty on
the part of the Commission to
verify physically, or otherwise, the addresses of the registrants to
ensure that they fall within
the requirements of ‘
ordinarily
resident
’ as envisaged in
sec
7(1)
of the
Electoral Act; and
in particular, the fluid nature of
some of the voters’ residential addresses.  There was
significant comfort in the
assurances given by the Commission that,
once the complaints raised by the applicants were brought to its
attention, it promptly
investigated such, discovered some
irregularities, which were however, not material to the result of the
by-elections in question.
It was difficult not to accept these
assurances in the absence of concrete proof to the contrary, as well
as the failure by the
applicants to invoke the numerous checks and
balances procedures created by the applicable legislative provisions.
THE
CONCLUSION ON ALLEGED IRREGULARITIES
[68]
Based on the above, the conclusion that, the irregularities
complained of by the applicants were not of such a materiality
to
vitiate the by-elections and to grant the relief sought by the
applicants, became irresistible.  See in this regard,
S
A Medical and Dental Council v McLoughlin,
[35]
and
Absa
Bank v De Villiers and Another.
[36]
The
onus
of proving the materiality of the irregularities was on the
applicants.  They failed to discharge such
onus
.
The Commission contended that once the allegations were brought to
its attention, it promptly investigated them, and found
that the
nature of the allegations were not that serious and to the extent to
affect the result of the elections.  It acknowledged
its
obligations and responsibilities in regard to the allegations.
The Commission asserted that, aided and enabled by the
various checks
and balances in the legislative framework applicable, it had done all
it could in the circumstances.  This
was reasonable.  On
the issue of irregularities which were in fact material, see
Pitso
v Electoral Commission.
[37]
As regards the question of the
onus
related to irregularities, certain foreign jurisdictions provide
instructive guidelines. For example, in Canada,
Wrzesnewskyj
v Canada (Attorney-General),
[38]
the
applicant was the unsuccessful candidate in the 2011 federal
elections.  The election was decided by a plurality of 26
votes.
The applicant contested the election under sec 524(1)(b) of the
Canada Elections Act on the basis that there were irregularities
that
affected the result of the election. In granting the application,
Lederer J said:
“…
The
onus was on the applicant to prove not only that there were
irregularities but also that the irregularities affected the result,

the onus did not shift to the respondent to disprove the second part
of the test. The standard of proof was that of a balance of

probabilities, regardless of the nature of the irregularity being
alleged.
”
[69]
In this matter, even on the basis of the common cause irregularities,
there were other cogent reasons militating against the
granting of
the relief sought by the applicants.  The starting-point in this
regard is the principle of legality which prescribes
that a public
functionary exercising a public function, may exercise no power and
perform no function beyond that conferred by
law.  The electoral
legislative framework gives effect to sec 181(1)(f) and sec 190(1) of
the Constitution.  In
Independent
Electoral Commission v Langeberg Municipality,
[39]
at
para [22] the Court said:
“
The
Commission exercises public powers and performs public functions in
terms of the Constitution … It was created by chap
9 of the
Constitution which is headed ‘State institutions supporting
constitutional democracy’.  Section 181(1)
provides that
it is to strengthen constitutional democracy in the Republic.
”
At
para [24]:
“
There
is no doubt that the holding of free and fair elections for national,
provincial and local legislatures is not a private function.
It
is a public function and therefore a State function performed by a
State institution.  In this broad sense, the Commission
does
perform a governmental function.  More specifically, it
implements national legislation concerning the conduct of elections.

What would otherwise be an executive function to implement national
legislation is vested by the Constitution in the Commission.

That does not mean, however, that the Commission falls within the
national sphere of government as contemplated by chap 3 of the

Constitution.
”
See
also
Fedsure Life Assurance Ltd, supra
,
paras [56] to [59].
[70]
Based on the principle of legality, it is expected of the Commission
that the measures provided for in the applicable legislation
must
show a rational relationship between the legislative scheme used and
the achievement of a legitimate governmental purpose.
See
New
National Party of South Africa v Government of the RSA.
[40]
The
pertinent question was thus whether this Court could interfere in the
manner in which the Commission exercised its powers and
public
functions in this case.
[71]
There are several important guidelines.  In
Glenister
v President of the Republic of South Africa
,
[41]
the only issue before the Court was whether the principle of
separation of powers allowed it to consider the validity of Cabinet’s

decision at the time when certain bills in question were still before
Parliament.  There, the applicants contended that the
ongoing
mass resignations from the Scorpions would cripple the unit well
before the pending legislation was promulgated, and that
the Courts’
intervention at that stage was vital.  In finally declining the
application for leave to appeal, and the
application for direct
access, the Court, at para [33] said:
“
In
our constitutional democracy, the courts are the ultimate guardians
of the Constitution.  They not only have the right to
intervene
in order to prevent the violation of the Constitution, they have also
the duty to do so. It is in the performance of
this role that courts
are more likely to confront the question of whether to venture into
the domain of the other branches of government
and the extent of such
intervention. It is a necessary component of the doctrine of
separation of powers that courts have a constitutional
obligation to
ensure that the exercise of power by other branches of government
occurs within constitutional bounds.  But
even in those
circumstances, courts must observe the limits of their powers.
”
See
also
Doctors
for Life International v Speaker of the National Assembly and
Others
,
[42]
paras [68] to [70], and
DA
v President of the Republic of South Africa
.
[43]
In
MEC,
Environmental Affairs and Dev Planning v Clairison’s CC,
[44]
at
para [22], the Court said:
“
What
was said in Durban Rent Board is consistent with the present
constitutional principle and we find no need to re-formulate what
was
said pertinently on the issue that arises in this case.  The law
remains, as we see it, that when a functionary is entrusted
with a
discretion, the weight to be attached to particular factors, or how
far a particular factor affects the eventual determination
of the
issue, is a matter for the functionary to decide, and as he acts in
good faith (and reasonably and rationally) a court of
law cannot
interfere …
”
See
also
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs,
[45]
where at para [45] the Court discussed the relevant factors to
determine whether a decision is reasonable or not, and emphasised

that:
“
The
Court should take care not to usurp the functions of administrative
agencies.  Its task is to ensure that the decisions
taken by the
administrative agencies fall within the bounds of reasonableness as
required by the Constitution.
”
The
principles enunciated above, are consistent with the provisions of
secs 181(4) and (5) of the Constitution which provide that:
‘
No
person or organ of state may interfere with the functioning of these
institutions; and that these institutions are accountable
to the
National Assembly, and must report on their activities and the
performance of their functions to the Assembly at least once
a year.
’
The
Commission is one of the institutions established under Chapter 9 of
the Constitution, as ‘
state
institutions supporting constitutional democracy
’.
[72]
On the facts of the present matter, sketched by both parties in
lengthy and voluminous papers, and having regard to the various

legislative framework within which the Commission carries out its
duties and functions, it cannot be said that the Commission acted

unreasonably in the by-elections under discussion. The same applied
to the provisions of secs 19 and 190 of the Constitution.
One
of the several misconstrued obligations of the Commission displayed
in this matter, was the contention that it was obliged
to verify the
addresses of the persons registering to vote. This was plainly not a
proper reading and interpretation of
sec 8
of the
Electoral Act.
On
the contrary, the sec requires that the Commission should be
satisfied that a person’s application for registration complies

with the Act.  This is achieved when the applicant is obliged to
complete the information sought in the REC 1 form, as argued
by the
Commission. To place a verification obligation on the Commission was
not the correct interpretation. The Concise Oxford
Dictionary defines
‘
verify
’
as ‘
make sure or demonstrate that
(something) is true, accurate, or justified
’.
If this is what is expected of the Commission, the result would be
contrary to the principle of enfranchisement rather
than
disenfranchisement of voters as enunciated in
August
and Another v Electoral Commission and Others, supra
.
On appeal in the Canadian matter of
Wrzesnewskyj
v Canada (Attorney-General) supra
, i.e.
Opitz. v. Wrzesnewskyj,
2012 SCC 55
, Opitz, who was successful in the election appealed to
the Supreme Court.  The Court at para [148] said:
“
The
objective of efficiency and certainty in the electoral process
suggests that there ought to be strict compliance with the
requirements
of the Act.  The objective of ensuring that those
not qualified to vote not do so pulls in the same direction.  On
the
other hand, the objective of enfranchisement suggests that
‘irregularities’ should not be interpreted in a technical

or trivial way that improperly disenfranchises voters.  The
voters of Canadian citizens 18 years of age or over should not
be set
aside over trifles.
”
At
para [151] of the judgment, the Court went on to say that:
“
Every
electoral system must strike a balance between enabling those who
have the constitutional right to vote to do so, and ensuring
that
those who do not have the right are not allowed to vote. The formal
system of entitlement is our mechanism for striking the
right balance
between these two valid concerns, whilst ensuring the efficiency and
certainty of the electoral process.  It
aims to safeguard both
the right to vote and the integrity of elections.
”
At
the risk of repetition, the Commission investigated the complaints of
irregularities, addressed them and found that such irregularities
did
not affect the result of the by-elections. The applicants, on the
other hand, simply chose not to make use of the procedures
created by
the various legislative framework and checks and balances to regulate
the lodgement and investigations and objections
in regard to their
complaints. On the basis of the above principles, it will not be
equitable and proper to grant the relief sought
by the applicants.
[73]
There was yet another reason why the relief ought not be granted. The
by-elections of 6 and 7 August 2013 came and went.
The
applicants raised no objections, as they were entitled to, in regard
to these by-elections.  The election results were
subsequently
finalised and published. The same could comfortably and substantially
be said about the subsequent by-elections of
September 2013 and
December 2013, save for the delay and inability of this Court to hear
the matter during December 2013.
[74]
The finding that the alleged irregularities were not of a material
nature necessitating the setting aside of the by-elections,
has
already been made. Even if the alleged irregularities were material
and affecting the result of the by-elections, which had
not been
proved, this Court in the exercise of its discretion would still
grapple with the issue of a just and equitable remedy.
This kind of
situation arose in
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency and
Others
(
Allpay
”)
.
[46]
In that case, Allpay was an unsuccessful bidder in a tender invited
by the South African Social Security Agency (“
SASSA
”)
for the administration of social grant payments to beneficiaries.
Allpay challenged the awarding of the tender to
Cash Paymaster
Services (Pty) Ltd (“
CPS
”)
in the High Court. The High Court declared the process followed in
awarding the tender illegal and invalid but declined
to set it aside,
because it would have disrupted the payment of social grants. Allpay
appealed to the Supreme Court of Appeal (SCA)
against the refusal to
set the award aside, and there was a cross-appeal by CPS against the
declaratory order.  The SCA upheld
the cross-appeal and
dismissed the appeal, finding that the alleged irregularities were
not unlawful, and commenting that public
interest dictated that a
procurement process should not be invalidated for minor
inconsequential flaws.  Allpay appealed further
to the
Constitutional Court.  The latter court came to the conclusion
that the decision to award the tender to Cash Paymaster
was
constitutionally invalid, and set aside the order of the SCA.
In regard to the appropriate remedy, the Court, pursuant
to hearing
various and conflicting submissions, said:
“
These
considerations raise difficult factual and legal issues …
It would be inappropriate to make a decision on a just
and equitable
remedy in the absence of further information and argument on these
issues …
”
[47]
The
Court suspended the declaration of invalidity pending determination
of a just and equitable remedy. In
South
African Property Owners’ Association v Johannesburg
Metropolitan Municipality and Others,
[48]
the
Court heard an appeal in regard to the imposition of rates levied by
the Johannesburg Municipality on residential and non-residential

properties in terms of
sec 19(1)
of the
Local Government:
Municipal Property Rates Act 6 of 2004
.  The Court found that
the Mayor and the Johannesburg Municipality had not complied with the
statutory requirements of participation
in the budget process by the
local community.  The Court in finally upholding the appeal, and
setting aside the order of the
High Court, also found that there was
no rationale connection between the rates and the decision to impose
the additional rate
on business properties, and that there was no
legal basis to impose justification of the additional increase.
As to the appropriate
remedy, the Court noted that the applicants did
not seek the setting-aside of the previous 2009-2010 budget of the
City of Johannesburg
Municipality, but insisted on seeking relief
pertinent to the additional increase in the rates imposed on business
properties.
At para [60] of the judgment, the Court articulated
the problem inherent in the relief sought as follows:
“
If
this relief were granted, this Court would declare, in effect, that
the Council acted unlawfully in imposing the additional 18%
on the
rates on business properties (because it failed to comply with the
prescribed legal requirements and procedures) and, pursuant
to that
declaration, would set aside the rate imposed in excess of R0.0132 in
the rand.  Counsel acknowledged that there may
be claims for
repayment of the rates paid in excess of what should have been paid
and suggested that the Court order that the City
has three years to
repay any such amount.  He also acknowledged that the
respondents’ conduct has created a problem
which is too big to
be solved by a court order. As he put it, the Court cannot unscramble
the egg.  This concession is clearly
correct in so far as it
relates to the whole budget for 2009/10.
”
These
concerns were accommodated in the order ultimately made.
[75]
In the context of the present matter, unlike in the
Allpay
matter, this Court had all the relevant information to determine a
just and equitable remedy.  Based upon a consideration
of all
the circumstances, there was plainly no justification advanced to
undo the by-elections.  The successful candidates
have been
elected and placed in respective positions. For this reason, too the
application must fail.
[76]
There was a final reason why the application must fail. This related
to the prayer and alternative relief referred to earlier
in the
judgment.  In closing argument, counsel for the applicants left
it to the Court to amend the prayers in 4.1 and 4.2
of the notice of
motion and to grant the relief sought thereunder. It would be unfair
to the Commission for the court to do so.
The applicants
approached this Court by way of motion proceedings. In the process,
they made various allegations against the Commission,
some of which
potentially attracted factual disputes. It is by now trite that in
motion proceedings, all essential averments must
appear in the
founding affidavits or the courts will not allow an applicant to make
or supplement his/her/its case in the replying
affidavits. See in
this regard for example,
Body
Corporate of the Shaftesbury Sectional Title Scheme v Estate of the
Late Wilhelm Rippert and Others,
[49]
and
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others.
[50]
However,
the rule is not an absolute one, the court still has the necessary
discretion to allow new matter in a replying affidavit
in exceptional
circumstances, as pronounced in
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
Others.
[51]
The applicants failed to advance all the necessary allegations in the
founding papers, especially in the amended papers,
in order to
sustain the relief claimed.
[77]
In any event, on a consideration of all the relevant circumstances,
the applicants should not be entitled to claim relief
on the basis of
‘
further
and/or alternative relief
’,
especially such drastic relief based on unamended papers.  See
in this regard,
Johannesburg
City
Council v Bruma Thirty-Two (Pty) Ltd.
[52]
More recently, in
National
Stadium South Africa (Pty) Ltd and Others v Firstrand Bank Ltd
[53]
it was held that:
“
The
court below justified its approach on the ground that in joining the
managers in the proceedings and supporting them the City
became a
co-wrongdoer and had to be restrained.  This, however, does not
dispense with the required prayer for relief against
the City. The
court also relied on the prayer for alternative relief.  It
erred because this superfluous prayer does not entitle
a court to
grant relief that is inconsistent with the factual statements and the
terms of the express claim …
”
In
this matter the application to an extent was based on the amended
notice of motion, and which was eventually left to the court
to
further amend appropriately, must fail.
CONCLUSION
[78]
For all these reasons, I came to the conclusion that the application
must fail in its entirety.  However, there was one
matter that
in my view needed mention.  This was that, from the voluminous
papers placed before us, a close study of the history
of the
by-elections under discussion, the Commission undoubtedly, bears a
huge obligation and responsibility in election processes
as enshrined
in
secs 19
of the Bill of Rights and 190 of the Constitution. Added
to this, are the various legislative framework described above. It is
a daunting task in a developing democracy like ours.  The point
is simply that, in spite of its recognition of the task, and
the
assurances it gave that it did its best to comply with its statutory
obligations in relation to the applicants’ concerns,
the
Commission can and should do better.  It should, for example,
adopt a more proactive and sensible approach, rather than

investigating matters only when raised by interested parties. What
immediately comes to mind in this regard is the issue of integrated,

effective and localised voter education. The problems of emerging
informal settlements, problematic demarcations and nomadic citizenry

should be properly planned for.  The aim should really be to
avoid unnecessary litigation without limiting the rights of access
to
the courts as enshrined in the Constitution.  All the issues
raised in this application, and they are crucial, ought to
be
addressed with all interested parties outside of the litigation
process. This much was put to counsel on both sides at the conclusion

of the argument.
[79]
In the result the following order is made:
1.
The application is dismissed.
2.
There is no order as to costs.
Wepener
J: (dissenting as to alternative relief only)
[80]
I have had the privilege of reading the judgment prepared by Moshidi
J. I am in agreement with his conclusion regarding the
fact that this
court lacks the power to order or authorise an investigation of the
type sought by the applicants, for the reasons
given by Moshidi J.
[81]
I, however, find myself unable to agree with conclusion reached
regarding the relief sought by the applicants to have the flawed

elections set aside. It is so that the notice of motion is couched in
terms that are dependent on the main relief, ie the investigation,

which relief that applicants failed to obtain. Nevertheless, counsel
for the applicants submitted that the applicants are entitled
to the
relief despite the manner in which the relief was couched. Prayer 4
of the notice of motion reads as follows:
‘
4.
That depending on the results of the investigation ordered herein and
the recommendations in the report in 3.2 above it be ordered
that:
4.1
The unlawful election of any candidate be set aside and that new
by-elections be convened in the ward where such candidate was

elected.
4.2
. . .’
[82]
Counsel for the applicants submitted that, even in the absence of the
proposed investigation, sufficient facts have been disclosed
to show
that the by-elections were not free and fair and should be set aside.
To disallow this relief because it was couched as
being dependent
upon the outcome of an investigation would, in my view, place form
before substance. The effective relief sought
by the applicants is to
have flawed elections set aside. If the facts before us justify such
a setting aside it would, in my view,
be wrong to argue that relief
is only obtainable if a report would justify such a course of
conduct. The applicants clearly sought
a setting aside and also
couched the notice of motion in a form which included a request for
further and or alternative relief.
The relief sought has a basis in
the supporting papers and is not inconsistent with the substantive
relief claimed.
[54]
If the
papers show a flawed election process, I am of the view, that the
applicants should be afforded relief in order to avoid
giving form
preference over substance, something that should not be countenanced.
[55]
[83]
The question then is whether the by-elections were tainted with
illegality and, if so, whether the applicants are to be afforded

relief.
[84]
Moshidi J expressed the view that the applicants failed to utilise
the statutory mechanisms to object to a voters’ roll
and that
the applicants submission that the invocation of the remedy provided
in
s 15
of the
Municipal Electoral Act was
not practical, was not
convincing.
[56]
But
counsel for the applicants relied on a previous judgment of this
court which held that there are circumstances where
the duty to act
rests on the Commission, despite the failure of individuals to act.
This court has held that where there is a large
scale unlawful
registration of voters it is for the Commission itself to act when
the unlawful conduct is brought to its attention.
In this regard this
court held in
Lὂtter
v Electoral Commission and Others
[57]
as follows:
’
[36]
The provisions of
s 15
of the
Electoral Act may
not be entirely
suitable for the situation described by the applicant where there was
a large scale registration of persons who
are unknown to the
applicant. When there is such large scale unlawful registration of
voters it is for the Commission itself to
act when the unlawful
conduct is brought to its attention, the latter which the applicant
did do when he visited the Commission’s’
head office in
Centurion
[37]
Although I will not attempt to suggest all the suitable measures
which the Commission could and should take in order to avoid
large
scale unlawful voter registration, some steps do come to mind.
[38]
The Commission is able to determine the pattern of registration of
any individual voter by having regard to that particular
voter’s
past registration as a voter. If there were large numbers of voters
who suddenly registered in Ward 22 but who were
previously registered
in surrounding wards, it would be an indication that something was
amiss. Unfortunately the information as
to such voter migration was
not made available to us. The Commission should take the information
regarding each voter who registered
in Ward 22 since March 2013 and
utilise its officials to see if such persons were indeed residing at
their former addresses and
not within Ward 22. If such persons are
still so resident at their former addresses and found to reside
outside Ward 22, the Commission
must take steps to have such persons
removed from the voters’ roll of Ward 22. The Commission is
entitled to acquire the
necessary staff to do such an exercise, even
on an urgent and wide scale basis, as is envisaged in
s 5(2)
of the
Electoral Commission Act which
provides:
“
The
Commission shall, for the purposes of the achievement of its objects
and the performance of its functions –
(a)
acquire the necessary staff whether by employment, secondment,
appointment on contract or otherwise;
(b)
...
(c)
...
(d)
..
that
is necessary for or conducive to that.”
The
Act is a broad guideline and the Commission is entitled to take steps
in order to promote free and fair elections.
[39]
The Commission could then mero motu apply provisions of
s 15
(3) of
the
Electoral Act to
correct the unlawful position. If
s 15(3)
is
found to confer insufficient machinery the Commission is hampered in
that it does not have the necessary legal machinery to
correct the
voters’ roll, it should act in order to avoid such a situation
in the future. It has the duty to strengthen the
constitutional
democracy and promote the electoral processes without any
prescription or curtailment of its powers (see
s 4
of the
Electoral
Commission Act). It
can further make recommendations in connection
with the electoral legislation as is provided for in
s 5
(1)(j) of
the
Electoral Commission Act.
[40
]
If it is found that there are a large number of unlawful registered
voters in Ward 22 these voters must be removed from that
voters’
roll pursuant to
s 5
(1)(e) of the
Electoral Commission Act. The
Commission is to “compile and maintain voters’ rolls by
means of a system of registering of eligible voters by utilising
data
available from government services and information furnished by
voters”. Each unlawfully registered voter can be removed
from
the voters’ roll pursuant to an application to court if
necessary.
[41]
It is because of this view that the order in 2 above was issued.
Unlawfully registered voters must be removed from the voters’

roll as such a situation, un-remedied, is not conducive to a free and
fair election in a democratic society
.’
[85]
Were the freeness and fairness of the elections tainted by
illegality? It is common cause
[58]
that a fraudulent registration of voters in the wards concerned
indeed occurred. The Commission set it out thus:
’
38.2
359 applicants were registered in other voting districts but within
the wards in which they were residing;
38.3
332 applicants did not have sufficient conventional addresses to
match with the spatial addresses provided
by the Municipality;
38.4
1040 applicants applied for registration outside the ward of
residence.’
[86]
Moshidi J describes the irregularities in detail and I do not repeat
them.
[87]
After conceding the several incorrect registrations the Commission,
by simple mathematical calculation, concludes that the
impact of the
participation of the incorrectly registered voters did not materially
influence the outcome of the by-elections.
In order to underline this
argument the Commission set out the details of the elections in each
ward the number of fraudulent voters
determined in each ward and then
concludes that the result of each election would not have altered
even if those fraudulently registered
voters were disregarded.
Although the by-elections in ward 9 and 18 took place during
September 2014, the facts that underlie the
allegations of
irregularity with the voters’ roll came to the attention of the
applicants sometime after those elections.
[88]
Municipal elections are held on the basis that voters in specific
demarcated wards can vote for their candidates who make themselves

available for election in that specific ward. It follows that persons
who are not resident in a specific ward should not be eligible
to
cast a vote in an election in that ward. The Commission is obliged to
manage elections:
[59]
‘
5
Powers, duties and functions of Commission
(1)
The functions of the Commission include to-
(a)
manage any election;
(b)
ensure that any election is free and fair;
(c)
promote conditions conducive to free and fair elections;
(d)
promote knowledge of sound and democratic electoral processes;
(e)
compile and maintain voters' rolls by means of a system of
registering of eligible voters by utilising data available
from
government sources and information furnished by voters;
(f)
compile and maintain a register of parties;
(g)
establish and maintain liaison and co-operation with parties;
(h)
undertake and promote research into electoral matters;
(i)
develop and promote the development of electoral expertise and
technology in all spheres of government;
(j)
continuously review electoral legislation and proposed electoral
legislation, and to make recommendations in connection
therewith;
(k)
promote voter education;
(l)
promote co-operation with and between persons, institutions,
governments and administrations for the achievement of its
objects;
(m)
......
(n)
declare the results of elections for national, provincial and
municipal legislative bodies within seven days after
such elections;
(o) adjudicate
disputes which may arise from the organisation, administration or
conducting of elections and which are of an administrative
nature;
and
(p)
appoint appropriate public administrations in any sphere of
government to conduct elections when necessary.
(2)
The Commission shall, for the purposes of the achievement of its
objects and the performance of its functions-
(a)
acquire the necessary staff, whether by employment, secondment,
appointment on contract or otherwise;
(b)
establish and maintain the necessary facilities for collecting and
disseminating information regarding electoral matters;
(c)
co-operate with educational or other bodies or institutions with a
view to the provision of instruction to or the training of
persons in
electoral and related matters; and
(d)
generally, perform any act that is necessary for or conducive to
that.’
[89]
The Commission is to oversee that the elections occur within the
relevant legislative framework. This would include ensuring
that only
voters who reside in a particular ward can vote for the candidates
who make themselves available in that particular ward.
[90]
This case, like many other by-elections, concerns the unlawful
registration of voters who are not normally resident in a ward,
but
who do register in that ward despite not being resident therein. This
form of unlawful registration has been referred to as
‘bussed
in voters’ in order to bolster a particular political party’s
chances to win the elections.
[60]
The applicants also complained that voters appearing on the voters’
roll of particular wards had no addresses recorded on
the REC1 forms
– the form which formed the basis of the compilation of the
voters’ roll.
[91]
The voters’ roll which was made available on 4 December 2013
instead of 14 November 2013, did not afford the applicants
sufficient
time to verify the voters registered on the roll and to canvas for
votes. During argument before this court, counsel
for the applicants
relied on the common cause irregular registration of voters. The
Commission, who investigated the complaints
and found that irregular
registration of voters indeed occurred, resisted the setting aside of
the elections. The investigation
itself however, was based on a
special database of the Tlokwe Municipality, which database is of
limited value due to its omissions.
There can be no doubt that the
database of residents who contracted with the municipality only will
exclude particulars of other
residents of a particular household, who
did not so contract. It also excludes persons who live in informal
settlements where no
services are being provided. It is common cause
that the wards under consideration cover several informal
settlements. Such an
incomplete database cannot contribute to a
proper investigation or check the correctness of a voters’
roll.
[92]
I cannot agree with the reasoning of Moshidi J. Firstly, the
materiality of the incorrectly registered voters should not be

approached simply by making arithmetical calculations.  The
materiality is to be determined by reference to the purpose of
the
relevant statutory provisions.
[61]
Over and above this aspect, the calculations relied upon by the
Commission during its desktop investigation are based on wholly

unreliable information.
[93]
In addition, the applicants were entitled to receive a voters’
roll containing addresses of the relevant voters in order
to canvas
voters prior to the elections. Counsel for the Commission conceded
that the independent candidates are as entitled to
a voters’
roll with addresses as any political party would be.
[62]
[94]
Thirdly, the applicants complained that they did not receive a
voters’ roll containing the addresses in order to enable
them
to canvas for votes prior to the elections. Counsel for the
Commission responded with two submissions. Firstly, that the
regulations only require a number on the roll, a name and an identity
number. The voters’ roll which the applicants received
complied
with the regulations, but this submission cannot overcome the
provisions of the Act.
[63]
[95]
Counsel then suggested that one of the applicants was indeed provided
with forms REC1 on which there appear addresses of voters
and that
those forms together with the voters’ roll would supply the
necessary information. That argument misses the very
complaint of the
applicants. The REC1 forms were received late and the information on
these forms were wholly insufficient as it
does not properly describe
the addresses of the voters.
[96]
The failure of the Commission to supply the applicants with the
voters’ roll containing the addresses and then supplying
forms
with inadequate addresses late, resulted in independent candidates
being unable to properly canvas for votes as they were
entitled to
do. The election process was consequently flawed by virtue of the
non-compliance of the Commission with the supply
of the voters’
roll and the inadequacy of the voters’ roll itself. I am of the
view that purpose of the voters’
roll, which contains addresses
of voters, is to allow for candidates to visit voters and to canvas
for votes prior to any election.
The failure to afford the
independent candidates that opportunity is a serious one that merits
intervention.
[97]
The materiality of the failure lies therein that the purpose of the
making available of a voters’ roll to a candidate
ie to able to
canvas was wholly defeated. The fact that the number of voters found
to have been incorrectly registered would not
have affected the
outcome of the election is irrelevant to this aspect of the case.
Once an irregularity is found to have existed
the action of the
Commission to continue with the by-elections was wrong as the
elections could never have been free and fair.
In this regard, I am
of the view, that the principles applied by the Constitutional Court
to a procurement process would be equally
applicable to the process
regarding elections. In
Allpay
[64]
it
was said
[65]
:
‘
This
judgment holds that:
a.
The suggestion that “inconsequential
irregularities” are of no moment conflates the test for
irregularities and their
import; hence an assessment of the fairness
and lawfulness of the procurement process must be independent of the
outcome of the
tender process.
b.
The materiality of compliance with
legal requirements depends on the extent to which the purpose of the
requirement is attained.’
[98]
Section 56
[66]
of
the
Electoral Act allows
for this court to hear an objection
regarding a serious irregularity which had occurred concerning any
aspect of an election. Should
an order as provided for in
s 56(a)
be
issued the effect would be that there was no candidate that won the
election and as a logical consequence the Commission will
have to
call for new by-elections.
[99]
In addition, the applicants lodged an objection with the Commission
regarding their complaint under s 65 of the Local Government:
Municipal Electoral Act.
[67
]
In
this matter the applicants sought relief prior to the by-elections
but the matter was not heard and circumstances forced them
to adopt
the formulation of the current relief. They were not at fault when
the matter was not heard initially and I am of the
view that they
should not be prejudiced because of any delay. If regard is had to
the flawed registration of voters and the flawed
basis of the desktop
investigation utilised by the Commission to determine the correctness
of the voters’ roll, the words
of Froneman J in
Allpay
[68]
are
apposite:
‘
[23]
To the extent that the judgment of the Supreme of Court of Appeal
may be interpreted as suggesting that the public interest
in
procurement matters requires greater caution in finding that grounds
for judicial review exist in a given matter, that misapprehension

must be dispelled. So too the notion that, even if proven
irregularities exist, the inevitability of a certain outcome is a
factor
that should be considered in determining the validity of
administrative action.
[24]
This approach to irregularities seems detrimental to important
aspects of the procurement process. First, it undermines the
role
procedural requirements play in ensuring even treatment of all
bidders. Second, it overlooks that the purpose of a fair process
is
to ensure the best outcome; the two cannot be severed. On the
approach of the Supreme Court of Appeal, procedural requirements
are
not considered on their own merits, but instead through the lens of
the final outcome. This conflates the different and separate

questions of unlawfulness and remedy. If the process leading to the
bid's success was compromised, it cannot be known with certainty
what
course the process might have taken had procedural requirements been
properly observed.’
[100]
In this matter if the process leading to the election was compromised
and it cannot be known with certainty what course the
process might
have taken had procedural requirements been properly observed. This
approach of the Constitutional Court is at variance
with the Canadian
law
[69]
and
I would not place such high onus on the applicants as was suggested
in
Wrzesnewskyj
in circumstances such as those presenting in this case.
[101]
I am of the view that the principles enunciated in
Allpay
regarding unlawfulness of deviations from fair process are equally
applicable to free and fair elections. In
Allpay
it was said:
[70]
‘
There
is a further consideration. As Corruption Watch explained, with
reference to international authority and experience, deviations
from
fair process may themselves all too often be symptoms of corruption
or malfeasance in the process. In other words, an unfair
process may
betoken a deliberately skewed process. Hence insistence on compliance
with process formalities has a threefold purpose:
(a) it ensures
fairness to participants in the bid process; (b) it enhances the
likelihood of efficiency and optimality in the
outcome; and (c) it
serves as a guardian against a process skewed by corrupt influences.’
[102]
In all the circumstances, I am of the view, that the by-elections
were not free and fair and were tainted by illegality and
that the
votes cast at the voting stations of the relevant wards in the
by-elections should be ordered to not to count in whole.
The effect
of such an order would be that those candidates purportedly elected
would cease to hold office with immediate effect
and that the
Commission should take steps to hold new by-elections.
[103]
This being a dissenting judgment I need not further define the
appropriate relief which I would have afforded the applicants
save to
state that I am of the view that they are entitled to have the
irregular elections set aside.
[104]
I also agree with the contents of para 78 of the judgment of Moshidi
J. It is clear that the Commission must take urgent steps
to avoid
‘bussing’. One such step may be to close the registration
process when vacancies occur which would lead to
by-elections. The
whole unlawful process which reared its head on more than one
occasion before this court can then effectively
be avoided.
Wepener J
D
S S MOSHIDI
JUDGE
OF THE ELECTORAL COURT
COUNSEL
FOR THE APPLICANTS J ROUX AND M BASSON-RILEY
AND
C L MARKRAM
INSTRUCTED
BY MOOLMAN AND PIENAAR INC
COUNSEL
FOR THE
FIRST
RESPONDENT M T K MOERANE SC AND
L
GCABASHE
INSTRUCTED
BY GILDENHUYS MALATJI INC
DATE
OF HEARING 16 JANUARY 2015
DATE
OF JUDGMENT 19 MARCH 2015
[1]
See
Bundle 1 p 360 to 363.
[2]
See
sec 181 of the Constitution.
[3]
See
sec 190 of the Constitution.
[4]
See
record pp 373 to 509.
[5]
See
record pp 511 to 556.
[6]
Reported
at
2014 (1) SA 71
(EC).
[7]
Constitution
of the Republic of South Africa, 1996.
[8]
1950
(4) SA 692
(W).
[9]
1997
(1) SA 710
(A) at 725H-I.
[10]
1917
AD 731
at 743.
[11]
1968
(1) SA 585
(A) 594H-595A.
[12]
2
nd
ed, Vol 25 Part 1 (First Reissue) para 349.
[13]
[2004]
1 All SA 168 (SCA).
[14]
See
United
Democratic Movement and Others v Tlakula and Another
(EC
05/14) [2014] ZAEC 5 (18 June 2014).
[15]
There
is an Electoral Court for the Republic, with the status of the
Supreme Court.
[16]
2006
(3) SA 396
(EC).
[17]
See
Bundle p 7.
[18]
See
Bundle p 362.
[19]
Sec
20(1)(a) and (b).
[20]
Sec
5
of the
Electoral Act provides
that the Chief Electoral Officer
must compile and maintain a national common voters’ roll.
[21]
Sec
33
of the
Electoral Act deals
with special votes.
[22]
See
FA record 23, para 28.
[23]
See
bundle 35, para 38 FA.
[24]
See
bundle pp 208 to 293.
[25]
2010
IEC 406 (EC).
[26]
2010
IEC 451 (EC).
[27]
[2014]
4 All SA 465
(EC).
[28]
See
Bundle pp 373 to 406.
[29]
See
Bundle 2 p 417.
[30]
See
para 3.4 p 6 of the applicants’ heads of argument.
[31]
See
Record p 76 to 77.13, Record p 76 to 77.
[32]
Published
under Government Notice R12 in Government Gazette 25894 of 7 January
2004, as amended.
[33]
1998
(12) BCLR 1458
(CC) at para [58], also at
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at
paras [56]-[59].
[34]
1999
(3) SA 1
(CC).
[35]
1948
(2) SA 355
(A).
[36]
[2010]
2 All SA 99
(SCA) at paras [27] and [30].
[37]
2010
IEC 471 (EC).
[38]
110
O.R. (3d) 350 –
2012 ONSC 2873.
[39]
[2001] ZACC 23
;
2001
(3) SA 925
(CC).
[40]
[1999] ZACC 5
;
1999
(3) SA 191
(CC) paras [18] to [19].
[41]
[2008] ZACC 19
;
2009
(1) SA 287
(CC).
[42]
[2006] ZACC 11
;
2006
(6) SA 416
(CC).
[43]
2013
(1) SA 248
(CC).
[44]
[2013]
3 All SA 491
(SCA).
[45]
[2004] ZACC 15
;
2004
(4) SA 490
(CC)
(2004 (7) BCLR 687
(CC).
[46]
2014
(1) SA 604
(CC).
[47]
At
para [96].
[48]
2013
(1) SA 420
(SCA).
[49]
[2003]
2 All SA 233
(C) at 237.
[50]
1974
(4) SA 362
(T) at 369.
[51]
2013
(2) SA 204
(SCA) para [26].
[52]
1984
(4) SA 87
(T).
[53]
2011
(2) SA 157
(SCA) para [45].
[54]
Member
of the Executive Council, Department of Education, Eastern Cape v
Gqebe
(2009)
30 ILJ 2388 (LAC) para 29:
‘
[29]
What is crystal clear from the cited authorities is that alternative
relief will not be granted where:
29.1
No basis has been laid for such a relief in the supporting papers.
29.2
The order granted is inconsistent with the substantive relief
claimed;
Johannesburg
City
Council
v Bruma Thirty-Two (Pty) Ltd
1984
(4) SA 87
(T) at 93E-F:
‘
In
Hirschowitz v Hircshowitz
1965 (3) SA 407
(W) at 409 Vieyra J applied these principles to
motion proceedings. The prayer for alternative relief is to my mind,
in modern
practice, redundant and mere verbiage. Whatever the Court
can validly be asked to order on papers as framed, can still be
asked
without its presence.’
[55]
See
Nabolisa
v S
(CTCT 105/12
[2013] ZACC; 2013
(2) SACR 221 (CC);
2013 (8) BCLR 964
(CC) (12 June 2013).
[56]
Main
judgment para 38.
[57]
Lὂtter
v Electoral Commission and Others
(001/13
IEC) [2013] ZAEC 1(7 May 2013);
[2013] 4 All SA 152
(Elect Ct).
[58]
Main
judgment para 45-51.
[59]
Section
5
Electoral Commission Act 51 of 1996
.
[60]
Lὂtter
para 29.
[61]
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others  v Chief
Executive Officer, South African Social Security Agency,
and Others
2014 (1) SA 604
(CC) at paras at 28-30.
[62]
See
s 16(3)
of the
Electoral Act 73 of 1998
.
[63]
Which
provides for a voters’ roll with addresses which a political
party (and as conceded by the Commission, an independent
candidate)
is entitled to receive.
[64]
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others  v Chief
Executive Officer, South African Social Security Agency,
and Others
2014 (1) SA 604
(CC).
[65]
At
para 22.
[66]
‘
56
Powers of Commission and Electoral Court
If
the Commission or the Electoral Court decides, whether as a result
of an objection or appeal brought under
section 55
or otherwise,
that a serious irregularity has occurred concerning any aspect of an
election, the Commission or the Electoral
Court may order-
(a)
that the votes cast at a particular voting station do not count in
whole or in part; or
(b)
. . . .’
[67]
Act
27 of 2000.
[68]
At
paras 23-24.
[69]
Wrzesnewskyj
,
supra
.
[70]
At
para 27.