Kham and Others v Electoral Commission and Another (CCT64/15) [2015] ZACC 37; 2016 (2) BCLR 157 (CC); 2016 (2) SA 338 (CC) (30 November 2015)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2015
>>
[2015] ZACC 37
|

|

Kham and Others v Electoral Commission and Another (CCT64/15) [2015] ZACC 37; 2016 (2) BCLR 157 (CC); 2016 (2) SA 338 (CC) (30 November 2015)

Links to summary

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 64/15
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
RATIKOANE
Eighth Applicant
and
ELECTORAL COMMISSION
OF SOUTH
AFRICA
First Respondent
MEMBER OF THE EXECUTIVE
COUNCIL,
DEPARTMENT OF LOCAL
GOVERNMENT
AND HUMAN SETTLEMENTS,
NORTH WEST
PROVINCIAL
GOVERNMENT
Second Respondent
Neutral citation:
Kham and Others v Electoral Commission and
Another
[2015] ZACC 37
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen
J, Wallis AJ and
Zondo J
Judgment:
Wallis AJ (unanimous)
Heard on:
10 September 2015
Decided on:
30 November 2015
Summary:
Municipal elections — whether
free and fair — obligations of the Electoral Commission —
duty to register voters
in correct voting district — duty to
show addresses on voters roll — adherence to election timetable
— non-compliance
resulting in by-elections not being free and
fair — just and equitable relief — outcome of
by-elections set aside —
fresh by-elections ordered —
procedure to be followed in accordance with
Local Government:
Municipal Structures Act 117 of 1998
ORDER
On appeal from the
Electoral Court:
1.
Condonation for the late filing of the complete record is granted.
2.
The Electoral Commission is to pay the costs of the application for
condonation.
3.
Leave to appeal is granted to the first to seventh applicants and
refused in
respect of the eighth applicant.
4.
The appeal is upheld with costs, including those consequent upon the
employment
of two counsel.
5.
The order of the Electoral Court delivered on 19 March 2015 is set
aside and
replaced by the following order:
(a)
It is declared that the by-elections conducted in the
Tlokwe
Local Municipality
on 12 September 2013 in
ward 18 and on 10 December 2013 in wards 1, 4, 11, 12, 13 and 20,
were not free and fair.
(b)
The outcome of those by-elections is set aside and fresh by-elections
are to be held in
terms of section 25 of the Local Government:
Municipal Structures Act 117 of 1998.
(c)
It is declared that when registering a voter to vote in a particular
voting district after
the date of this order the Electoral Commission
is obliged to obtain sufficient particularity of the voter’s
address to enable
it to ensure that the voter is at the time of
registration ordinarily resident in that voting district.
(d)
It is declared that in all future municipal elections or by elections
the Electoral
Commission is obliged in terms of
section 16(3)
of the
Electoral Act 73 of 1998
to provide all candidates in municipal
elections, on the date on which they are certified, with a copy of
the segment of the national
voters’ roll to be used in that
ward in that election including the addresses of all voters, where
these addresses are available.
(e)
The Electoral Commission is directed to pay the applicants’
costs, save for any additional
costs occasioned by the joinder of the
eighth applicant.
6.
The orders in 5(c) and (d) are prospective in their operation from
the date of
this order and do not affect the validity of any election
or by election held prior to the date of this order.
JUDGMENT
WALLIS
AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J,
Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J,
and Zondo
J concurring)
:
Introduction
[1]
This case is a by-product of eight
by-elections held in various wards in the Tlokwe Local Municipality
between August and December
2013.  The applicants were
unsuccessful candidates in the wards in which each of them had stood
for election.  They challenged
the outcome of the by-elections
in the Electoral Court, but their challenge failed and they now apply
for leave to appeal to this
Court.  The order they seek is that
the results in the by-elections be set aside and that the respondent,
the Electoral Commission
(IEC),
[1]
be ordered to hold fresh by-elections in the affected wards.
Their application is opposed by the IEC.
[2]
This local electoral dispute might be
thought to be of little moment, save to the citizenry of Tlokwe, but
the applicants’
challenge to the outcome of the by-elections
poses questions that go to the heart of our constitutional commitment
to a democratic
and open society in which government is based on the
will of the people.
[2]
The founding values of the Constitution include universal adult
suffrage, a national common voters’ roll and a multi-party

system of democratic government to ensure accountability,
responsiveness and openness.
[3]
The political rights of all citizens are enshrined in the Bill of
Rights.
[4]
The Constitution requires that one of the State institutions
supporting constitutional democracy must be an Electoral Commission

with responsibility for the management of elections at all three
levels of government.
[5]
The Electoral Commission’s core responsibility is to ensure
that those elections are free and fair.
[6]
[3]
The IEC was established in terms of the
Electoral Commission Act
[7]
(Commission Act).  This case requires us to examine the manner
in which the IEC discharged its functions in relation to the
Tlokwe
by-elections.  Commendably, the IEC has asked that this Court
should provide it with guidance on its responsibilities,
particularly
in relation to the registration of voters – the primary source
of the disputes in this case.
The facts
[4]
The first three applicants were formerly
members of the African National Congress (ANC) and elected
councillors, in wards 18, 13
and 20 respectively, in the Tlokwe Local
Municipality.  They fell out with their party and, in the
by-elections in question,
stood as “independent candidates
united against corruption”.  The other five applicants
joined them and stood
under the same banner in other wards.
They are not a political party, but are informally aligned with one
another as a group
of which Mr Kham, the first applicant, is the
leader.  They all lost to candidates representing the ANC.
[5]
The first by-election was held in ward 9 on
7 August 2013 and the eighth applicant was unsuccessful in his bid
for election.  According
to the official poll results issued by
the IEC, he received 504 votes as against the 738 votes recorded for
the successful candidate.
[6]
The second by-election was held in ward 18
on 18 September 2013, where Mr Kham was a candidate.  He
received 520 votes
and his successful opponent 884 votes.  In
the immediate aftermath of this by-election Mr Kham lodged a
complaint against
the outcome with the IEC in terms of section 65 of
the Local Government: Municipal Electoral Act
[8]
(Municipal
Electoral Act), but
the IEC dismissed the complaint.
The basis for the complaint was that he believed that voters had been
registered and permitted
to vote in ward 18 even though they were not
entitled to do so, because they were not resident in the ward when
they registered.
He suspected that his political opponents had
orchestrated these improper registrations so as to ensure his defeat
at the polls.
Whether and, if so, to what extent his suspicions
of electoral impropriety were justified is a matter to which I will
revert.
[7]
On 20 September 2013, when preparations
were underway for further by elections to be held on 23 October
2013, Mr Kham sought
information from the IEC concerning the
registration
of
voters in all wards in which by-elections were held in Tlokwe, both
on his own behalf and on behalf of members of his group.
The
request was made formally in terms of PAIA.
[9]
Some documents were furnished to him pursuant to this request on 1
November 2013.  These too will be dealt with later.
[8]
The further by-elections scheduled for 23
October 2013 were to take place in wards 1, 4, 11, 12, 13 and 20.
Objections were
lodged to this date with the IEC, on behalf of those
of the applicants who wished to contest them.  As a result, the
by elections
were postponed.
[10]
A fresh date was fixed for 11 December 2013.  This date also
attracted an objection, this time that it was inconvenient
to voters
because of its proximity to the Christmas holiday season.  The
IEC rejected the objection and it plays no further
role in the events
leading up to the present litigation.
[9]
Once again the spectre of improper
registration of voters in the wards where by-elections were to be
held reared its head.
In addition the segments of the national
voters’ roll to be used for the purposes of the by-elections
were only given to
candidates on 4 December 2013, instead of 26
November 2013, the date applicable in accordance with the electoral
timetable published
by the IEC.
[11]
The segments of the voters’ roll for each ward given to the
candidates were unhelpful in that they did not include
residential
addresses for any of the voters, rendering it difficult, if not
impossible, for candidates to find, visit and canvass
voters.
[10]
In the light of these problems and
concerns, the applicants approached the Electoral Court for an order
that the by-elections be
again postponed and for further relief.
Unfortunately, due to the lamented death of the late President
Mandela, the Electoral
Court was unable to convene to hear the
application.
[12]
Accordingly, the by elections proceeded as scheduled and
the six applicants who were candidates lost.
[13]
[11]
In the founding and supplementary
affidavits, the applicants sought to paint a picture of wide ranging
irregularities in regard
to the registration of voters.  They
said that more new voters had been registered in certain wards than
was feasible given
the stability of the population in those wards and
the absence of any significant influx of new residents.  They
relied upon
a statement by an unidentified whistle-blower that some
2100 voters from other wards had been registered to vote in all of
the
affected wards as well as in two others.  The documents
received by Mr Kham from the IEC, consisting of copies of voter
registration
forms,
[14]
were said, on analysis, to support the proposition that voters who
did not reside in these wards had been permitted to register
there.
[12]
Mr Kham complained that the analysis of
these forms was logistically difficult, as the applicants lacked
sophisticated facilities,
manpower and resources to analyse the forms
and that without addresses it was impossible to verify the existence
of particular
voters or their right to be registered in a particular
ward.  Furthermore, some of the addresses on the forms were
confusing
because they merely showed the voter to be resident in a
named informal settlement, the boundaries of which spanned more than
one
ward.  The result, so he said, was that voters from wards 17
and 21 were registered in ward 13.  He complained that, in
the
ward he had contested in September, there were 612 registration forms
bearing addresses that did not fall within the boundaries
of the
ward.
[13]
The founding affidavit culminated with the
following statement
:
“
It
is impossible for the applicants to accurately reflect the
irregularities in respect of each ward, given the limited time,
resources
and manpower.  As such the relevant bundles dealing
with ward 13, ward 19 and ward 20 constitute clear evidence of the
irregularities.
A sampled result in all the other wards
suggests the same pattern.  I state without hesitation that the
investigation
envisaged in the Notice of Motion will reveal the
fatally flawed process in the wards not covered by the clear evidence
referred
to herein.”
[14]
After the December by-elections, and in
response to the present litigation, the IEC conducted its own
investigation into the allegations
that voters not entitled to
registration in these wards had been registered and that their
participation had affected the result
of the by-elections.  It
concluded that there were a number of such registrations and that
some of those voters had voted,
but that in no case had they done so
in sufficient numbers to affect the result of the elections.
[15]
Its stance was, and in this Court is, that this meant that the result
of the by-elections could not be disturbed.  It
accepted that
the relevant segments of the voters’ roll were only distributed
on 4 December 2013 and that all the parties
involved in the
election had complained of this.  It also accepted that the
segments of the voters’ roll that it made
available to the
parties did not contain the addresses of the voters.
[15]
From a factual perspective the applicants
were content to advance their case in this Court largely on the basis
of the IEC’s
investigation.  They did not abandon the
wider allegations made in the founding and supplementary affidavits,
but proceeded
on the footing that without further investigation these
were not at this stage proven.  However, they said that it was
proper
for the Court to find that the eight by-elections had not been
free and fair on the basis of the concessions by the IEC in relation

to these three matters alone.
Electoral Court
[16]
The application for an interdict to prevent
the by-elections being held on 11 December 2013 was, as already
indicated, overtaken
by events.  But, instead of starting afresh
with their case, the applicants amended the relief they were seeking
from the
Electoral Court and continued with the litigation.
Originally they had sought an order postponing the by elections
to
be held on 11 December 2013 together with the following relief:
“
2.
That the First Respondent, at its own expense, be ordered to instruct
a suitably qualified,
reputable and independent firm of forensic
investigators to conduct a full forensic investigation into the
registration process
adopted and implemented by the First Respondent
for all by-elections held on 17 and 18 September 2013 [and to] be
held on 10 and
11 December 2013 in the district of the Tlokwe Local
Municipality, North West Province in 2013 and revert to the
abovementioned
Honourable Court with [a] full report in writing of
the said firm’s findings within 60 days (sixty days) from [the]
date
upon which the order is granted.”
Prayer three dealt in
some detail with the contents of the forensic report.  Prayer
four read:
“
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
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 registered voters, to illegally register
in any ward
where by elections in the Tlokwe [Local]
Municipality were held or are due to be held in 2013, be disqualified
from participating
in the by-elections.”
[17]
On 28 March 2014, the applicants amended
the relief they were seeking.  They continued to pray for an
order compelling the
IEC to commission an independent forensic
investigation into the registration of voters in the eight wards in
which they had been
unsuccessful candidates.  The by-election of
7 August 2013 was added to the list of those to be investigated.
But the
relief prayed consequent upon receipt of the report of the
proposed investigation was not substantially altered.  It now
read
as follows:
“
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-elections, 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 registered 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.”
[18]
Eventually the Electoral Court heard the
case in January 2015.  By then the evidence before the Court
ranged over a wider area
than in the original application.  The
IEC had filed an opposing affidavit before the date of the December
by-elections.
Thereafter the applicants delivered an extensive
reply together with the amended notice of motion.  That in turn
resulted
in the delivery by the IEC of a rejoining affidavit setting
out in some detail, with copious annexures, the results of its own
investigations after the by-elections.  These revealed the
matters around which the later debate concerning irregularities
has
revolved.  The affidavit prompted a surrejoinder from the
applicants and shortly before the hearing nine additional bundles
of
documents were delivered to the Electoral Court.  It is apparent
from this that the material before the Electoral Court
had so altered
in character by the time that the case was heard, that it was in many
respects a different case from that which
had initially been brought.
[19]
The Electoral Court held that it lacked
jurisdiction to order the IEC to commission an independent forensic
investigation into the
registration of voters as requested by the
applicants.  That this might be its conclusion must have emerged
in the course
of argument, because the judgment records that in reply
counsel confined the claim to one for alternative relief along the
lines
set out in paragraphs 4.1 and 4.2 of the amended relief, but
shorn of the preamble linking it to the investigation.  For
various
reasons the majority in the Electoral Court refused this
relief in a judgment by Moshidi J.
[20]
First, it held that, in view of the manner
in which the prayer for relief was couched, the grant of this relief
depended on the
order that the IEC commission an independent forensic
investigation.  It followed that the refusal of the prior relief
inevitably
dictated the refusal of the prayer to set aside the result
of the by-elections.  Second, it held that the outcome of the
by-elections
was not materially affected by the registration in these
wards of some voters who were not entitled to be so registered
because,
if the total number of votes cast by such voters were
deducted from the total of the winning candidate, the latter would
still
have won.  Third, it held that the applicants’
remedy for their complaint about the registration of voters in these
wards, who were not at the time of registration ordinarily resident
in them, was to pursue an objection in terms of
section 15
of the
Electoral Act, and
that had not been done.  Lastly, it held that
the complaint about such voters’ participation in the elections
should
have been pursued in terms of section 65 of the Municipal
Electoral Act and
the applicants, save for Mr Kham in September, had
not done this.
[21]
Wepener J dissented from these
conclusions.  He held that it was an exercise in placing form
over substance to non-suit the
applicants because of the manner in
which they had originally framed their prayer.  On the facts he
held, as had the majority,
that on the IEC’s own affidavits
there were serious irregularities in the electoral process.
These consisted of the
registration of voters in wards where they
were not entitled to be registered;
[16]
the failure to adhere to the election timetable in providing the
candidates with a free copy of the voters’ roll; and, the
fact
that the voters’ roll that was made available did not include
voters’ addresses.  In his view these irregularities
meant
that the election had not been free and fair.  As his was a
minority judgment he did not formulate the relief that he
would have
granted flowing from this conclusion.
In this Court
[22]
The applicants accept that the Electoral
Court was correct to hold that the relief by way of an order that the
IEC commission a
forensic investigation was beyond its jurisdiction.
They confined themselves to seeking an order setting aside the
by election
results in the eight wards relying on the
irregularities that emerged from the IEC’s own papers.  Their
complaint was
that on the evidence of irregularities in the IEC’s
own affidavit, especially the rejoining affidavit, the by-elections
could
not be said to have been free and fair and accordingly they
should be set aside.
Issues
[23]
The following issues must be addressed:
(a)
Should leave to appeal be granted?
(b)
Did the Electoral Court have jurisdiction to hear and determine the
applicants’ complaints?
(c)
Were the applicants confined to the remedies provided by
section 15
of the
Electoral Act and
section 65 of the Municipal
Electoral Act?
(d)
Were there electoral irregularities?
(e)
Were the by-elections free and fair?
(f)
If not, what relief should be granted?
Condonation
[24]
On 28 August 2015 the Registrar received a
letter from the IEC’s attorneys informing him that due to a
miscommunication between
the attorneys and counsel the record
delivered on behalf of the applicants did not include the annexures
to the answering affidavit
on behalf of the IEC, as well as some
other documents.  The record had originally been delivered on 28
July 2015 and the IEC’s
written submissions were delivered on
13 August 2015, so this was very late to submit additional documents
to this Court.
[25]
The attorneys informed the Registrar that
they would deliver three further volumes of record on 31 August 2015
and this was done.
There was no formal application seeking the
leave of the Court to supplement the record.  On
2 September 2015, the
IEC was directed to make a
substantive application for the admission of these documents and
condonation for the failure to deliver
them at an earlier stage.
[26]
An application was duly lodged on 4
September 2015 and the applicants indicated that they did not oppose
condonation.  However,
the application made no attempt to
explain how the alleged miscommunication between the attorneys and
counsel occurred.  So
there was no explanation for the failure
to resolve the problems with the record when it was originally filed,
nor any explanation
why this was not addressed when written
submissions were filed.  What made this particularly
unsatisfactory was that attached
to the IEC’s statement of
facts were the “combined extracts of the record of the court
a
quo
that the applicants and first
respondent will rely on and refer to”.  How that document
came to be prepared and filed
under the misleading description was
not explained.  This is quite unsatisfactory and a blatant
disregard of the Rules of
this Court.
[17]
The parties were obliged to endeavour to reach agreement on the
contents of the record.  Had they done so, the alleged

miscommunication would not have occurred.
[27]
Save in cases of direct access and
applications for the confirmation of orders of constitutional
invalidity, this Court sits as
a court of appeal and decides cases on
the basis of the record of the proceedings before the court from
which the appeal lies.
[18]
It is essential therefore that the record be properly compiled in
terms of the Rules and that omissions from the record occur
by way of
agreement between the parties’ representatives.  There is
nothing unusual in this.  It is the norm in
all courts in this
country where records have to be prepared and has been so for many
years.  The Rules of this Court in this
regard bear a marked
similarity to those of the Supreme Court of Appeal.
[19]
There is no reason why this Court should accept records prepared with
less care and attention to the Rules of this Court
than is expected
of legal practitioners in other courts.  Furthermore, when
records are not properly prepared, there is a
risk of both
duplication and of factual matter being wrongly omitted.  In the
former case, the burden of reading on members
of this Court, already
heavy, is aggravated.  In the latter it may arise that this
Court is asked to adjudicate cases on a
different factual basis to
that on which the court below decided them.  It hardly seems
necessary to highlight that this is
unsatisfactory and inconsistent
with the judicial comity with which this Court treats the other
courts in our legal system.
[28]
This Court has on previous occasions
deprecated the practice of many parties, including those represented
by experienced legal practitioners,
of submitting documents late, or
not in proper form, or producing fresh documents at a very late stage
of the proceedings, sometimes
only a day or two prior to a
hearing.
[20]
This cannot be permitted to continue.  The workload of this
Court is rapidly expanding and the demands being made on
judicial
time are ever increasing.  In order to cope with this
challenging environment it is essential that practitioners
observe
the Rules and comply with time limits.  Applications for
condonation of a failure to do so are not to be had for the
asking.
[29]
Having said that, it is plain that a number
of the documents contained in the supplementary record are helpful in
fleshing out the
factual picture and explaining what occurred in the
conduct of these by-elections.  It is in the interests of
justice that
this Court should have regard to them in determining the
outcome of the case.  For that reason condonation should be
granted.
But this judgment must stand as a warning to
practitioners that playing fast and loose with the Rules of this
Court is not to be
tolerated.
Leave to appeal
[30]
The issues revolve around foundational
principles of our Constitution and the assertion by the applicants of
the rights protected
by section 19 of the Bill of Rights.  In
addition, they concern the manner in which the IEC discharges its
constitutional
function of ensuring free and fair elections.
The case is manifestly within this Court’s jurisdiction.
The issues
are important, concerning, as they do, irregularities in
the conduct of elections.  But the outcome of the by-election in
August 2013 was not initially challenged and the eighth applicant’s
participation in the case was merely with a view to supporting
the
claim for relief in relation to an enquiry.  Unlike Mr Kham,
he did not challenge the outcome of the by-election
in ward 9 until
an advanced stage of this litigation.  No affidavit was filed
detailing specific complaints in respect of
that by-election.
The delays are unexplained.  When combined with the paucity of
information in respect of that by-election,
it means that he should
not be granted leave to appeal.  The remaining applicants, to
whom I will henceforth be referring
when I speak of “the
applicants”, have prospects of success and leave to appeal
should be granted to them.
Constitutional and
statutory framework
[31]
The constitutional right lying at the heart
of this case is the guarantee of political rights in section 19 of
the Bill of Rights.
It provides that:
“
(1)
Every citizen is free to make political choices, which includes the
right—
(a)
to form a political party;
(b)
to participate in the activities of, or recruit members for, a
political party; and
(c)
to campaign for a political party or cause.
(2)
Every citizen has the right to free, fair and regular elections for
any legislative
body established in terms of the Constitution.
(3)
Every adult citizen has the right—
(a)
to vote in elections for any legislative body established in terms of
the Constitution,
and to do so in secret; and
(b)
to stand for public office and, if elected, to hold office.”
[32]
The relationship between the right to vote
and the need for elections to be free and fair was eloquently
explained in the prisoners’
vote case of August.
[21]
Speaking for the Court, Sachs J said
:
“
Universal
adult suffrage on a common voters’ roll is one of the
foundational values of our entire constitutional order.  The

achievement of the franchise has historically been important both for
the acquisition of the rights of full and effective citizenship
by
all South Africans regardless of race, and for the accomplishment of
an all embracing nationhood.  The universality
of the
franchise is important not only for nationhood and democracy.  The
vote of each and every citizen is a badge of dignity
and of
personhood.  Quite literally, it says that everybody
counts.”
[22]
[33]
The IEC has the constitutional mandate to
manage elections at all three levels of government.  The manner
in which it discharges
this function is determined by national
legislation.
[23]
The need for this and its main purpose was dealt with in
New
National Party
,
[24]
where it was said
:
“
The
right to vote is, of course, indispensable to and empty without, the
right to free and fair elections; the latter gives content
and
meaning to the former.  The right to free and fair elections
underlines the importance of the exercise of the right to
vote and
the requirement that every election should be fair has implications
for the way in which the right to vote can be given
more substantive
content and legitimately exercised.  Two of these implications
are material for this case: each citizen entitled
to do so must not
vote more than once in any election; any person not entitled to vote
must not be permitted to do so.  The
extent to which these
deviations occur will have an impact on the fairness of the election.
This means that the regulation
of the exercise of the right to
vote is necessary so that these deviations can be eliminated or
restricted in order to ensure the
proper implementation of the right
to vote.”
[34]
There is no internationally accepted
definition of the term “free and fair elections”.
[25]
Whether any election can be so characterised must always be
assessed in context.
[26]
Ultimately it involves a value judgement.  The
following elements can be distilled as being of fundamental
importance
to the conduct of free and fair elections.  First,
every person who is entitled to vote should, if possible, be
registered
to do so.  Second, no one who is not entitled to vote
should be permitted to do so.  Third, insofar as elections have

a territorial component, as is the case with municipal elections
where candidates are in the first instance elected to represent

particular wards, the registration of voters must be undertaken in
such a way as to ensure that only voters in that particular
area
(ward) are registered and permitted to vote.  Fourth, the
Constitution protects not only the act of voting and the outcome
of
elections, but also the right to participate in elections as a
candidate and to seek public office.
[35]
In the case of municipal elections, this
right is not dependent upon membership of, and support by, a
political party.  It
is equally available to all citizens who
wish to make themselves available for election for whatever reason.
The applicants
may not have had the support of the big electoral
battalions,
[27]
but they were entitled to stand for election and to be treated in the
same manner and have exhibited towards them the same concern
for the
election being free and fair, as the large political parties that
dominate the political landscape in this, as in other,
countries.
[36]
The statutes that are relevant to the
present case are: the Commission Act, the
Electoral Act and
the
Municipal
Electoral Act.  The
Commission Act established both
the Electoral Commission and the Electoral Court and is central to
the jurisdiction, powers and
functions of the latter.  The
Electoral Act deals
with the registration of voters and the
preparation of the national voters’ roll.  As its name
implies the Municipal
Electoral Act deals
with the conduct of
elections in the municipal sphere.  Their provisions bear upon
different issues and it is most appropriate
to deal with them as they
become relevant to the issues identified above.  At the outset,
however, it is appropriate to recognise
that the purpose of all these
statutes is to provide the statutory framework required by section
190(2) of the Constitution for
the operations of the IEC.  It
follows that they provide an indication of what needs to be done to
ensure that elections are
free and fair and that material
non-compliance with their requirements will support a contention that
an election was not conducted
in a free and fair manner.
The Electoral Court’s
jurisdiction
[37]
This was not addressed by the parties, but
was raised in the course of the hearing.  Neither party
suggested that the Electoral
Court lacked jurisdiction, but the
grounds therefor need to be considered, because they will determine
whether it was able to deal
with the issues raised by the applicants
and the scope of its powers in doing so.  In response to this
Court’s query,
counsel for the applicants submitted that the
case was brought in terms of
section 56
of the
Electoral Act.  But
that cannot be accepted, because, in the case of municipal elections,
the provisions of the Municipal
Electoral Act govern
the
proceedings.  The provisions of the
Electoral Act apply
only
where they are made applicable by a provision of the Municipal
Electoral Act.
[28
]
That is not the case with
section 56.
The source of the
Electoral Court’s jurisdiction in this matter must therefore be
sought elsewhere.
[38]
The consideration of the jurisdiction and
powers of the Electoral Court should commence with the Commission Act
under which the
Electoral Court was established.  It is
established for the whole of the Republic of South Africa with the
status of the High
Court.
[29]
Its chairperson must be a judge of the Supreme Court of Appeal.
[30]
It has two other members who are judges and two who are South African
citizens.
[31]
Its powers, duties and functions are spelled out in section 20.
As regards the ambit of its jurisdiction this is defined
in section
20(1), which reads that
“
[t]he
Electoral Court may review any decision of the Commission relating to
an electoral matter”.
If the
Electoral Court had jurisdiction in this case, it is in this
provision that one would expect to find it.
[39]
The point that strikes one immediately
about section 20(1) is that the jurisdiction it confers on the
Electoral Court is extremely
broad.  It is a power to review
“any decision” by the IEC.  Many years ago Innes CJ
pointed out that
“‘
[a]ny’
is, upon the face of it, a word of wide and unqualified generality.
It may be restricted by the subject-matter
or the context, but
prima facie
it is unlimited.”
[32]
The use of the word
“any” to describe the decisions of the IEC that are
subject to the review powers of the Electoral
Court must be taken to
mean each and every decision, unless there is something in the
context that justifies a more restrictive
meaning.  But the only
restriction is that the decisions that are subject to this judicial
oversight are decisions “relating
to an electoral matter”.
In other words, decisions by the IEC over where to locate its
offices, or how to source equipment,
or who should be employed, are
not included.  But, if the decision relates to an electoral
matter, then it is included and
“any” decision in that
regard is subject to review by the Electoral Court.
[40]
Is there anything in the context that would
warrant a more restrictive interpretation of the section and hence of
the Electoral
Court’s jurisdiction?  I think not.
The clear purpose was to establish a court that would be able to deal
with
all electoral matters.  It was constituted with the same
status as the High Court and with a judge of the Supreme Court of

Appeal as its chairperson.  It is to resolve electoral disputes
as a matter of urgency.
[33]
There is not the slightest indication that the intention was to limit
the range of disputes that would fall within the ambit
of the
Electoral Court’s jurisdiction, so that some electoral issues
would fall within its jurisdiction and others not.
Instead, the
breadth of language used suggests that the statutory purpose was to
create a specialist court that would deal with
all electoral
matters.  And our jurisprudence holds that when a specialist
court is created the apparent purpose of creating
a single forum for
resolving disputes of a particular type is not to be stultified by a
resort to undue literalism and too careful
a parsing of statutory
language.
[34]
[41]
This construction is strengthened by
considering what is encompassed by a power of review in this
context.  In ordinary language,
it is a power to reconsider and,
if necessary, replace the decision of the IEC.  It is not a
narrow appeal power, bound to
a record, where the court decides
merely whether on that record the decision was right or wrong.
Nor is it the even narrower
review power, where the process through
which the decision was taken is scrutinised, but the merits of the
decision are not considered.
Instead it is the widest possible
type of review where the decision in question is subjected to
reconsideration, if necessary
on new or additional facts, and the
body exercising review power is free to substitute its own decision
for the decision under
review.
[35]
It is notable that
section 56
of the
Electoral Act contemplates
that
any serious irregularity concerning any aspect of an election may be
brought before the Electoral Court, whether arising under
section 55
of the
Electoral Act, which
provides for an appeal to the Electoral
Court, or otherwise.  On the face of it, the jurisdiction of the
Electoral Court to
deal with such an irregularity must arise under
section 20(1)(a) of the Commission Act.  It could not
effectively exercise
that jurisdiction unless the review power under
that section is as described above.
[42]
The jurisdiction to review any decision of
the IEC relating to an electoral matter affords the Electoral Court a
power of judicial
oversight over the activities of the IEC.  The
Electoral Court can examine any decision by the IEC and substitute it
with
its own.  The range of electoral matters may be great.
Certainly all the issues arising in the present case relate to

electoral matters.  They concern who may vote and whether all
those who voted were entitled to do so.  They also concern
the
ability of candidates to ascertain who their electorate is and to
canvass for support.  These matters are fundamental
to the
electoral process and the conduct of free and fair elections.
[43]
In addition to this broad power of review,
the Electoral Court may hear an appeal against any decision of the
IEC insofar as that
decision involves a question of law or is
provided for in any law.
[36]
The latter includes appeals in terms of
section 55(5)
of the
Electoral Act and
section 65(9) of the Municipal
Electoral Act, but
those as much involve decisions by the IEC on an electoral matter, as
do its decisions on other questions.  Nor is clarity
to be found
in seeking to distinguish general decisions by the IEC on electoral
matters, which are subject to review, from decisions
by it on
questions of the interpretation of any law, where an appeal lies with
leave of the chairperson.
[37]
Drawing a clear line of demarcation between these two powers is not
easy.  There may be a measure of overlap between
the two
functions.  But that is not a reason to restrict the scope of
the power of review under
section 20(1)(a).
Rather it is
indicative of a situation where certain specific matters involving
questions of the interpretation of laws and
challenges to the outcome
of objections lodged with the IEC after elections, in terms of very
specific statutory requirements for
objections of that type to be
made, are dealt with by processes of appeal, while all other matters
involving challenges to the
decisions of the IEC are pursued under
the Electoral Court’s power of review.
[44]
This approach is also consistent with
section 78(1) of the Municipal
Electoral Act, which
provides
that the Electoral Court has jurisdiction “in respect of all
electoral disputes” as well as in respect of
complaints about
infringements of the
Electoral Code of
Conduct issued under the
Electoral Act.
[38
]
In the absence of any statement that this
jurisdiction is by way of appeal, it must be exercised under the
Electoral Court’s
power to review decisions by the IEC.
And all electoral disputes, apart from infractions of the Electoral
Code, will necessarily
have arisen because the IEC has, in the
exercise of its powers, made a decision concerning an electoral
matter.  Until that
has occurred one way or the other the
dispute will not have crystallised sufficiently for it to be pursued
before the Electoral
Court.
[45]
The necessary conclusion is that the
Electoral Court had jurisdiction to review decisions by the IEC.  The
remaining question
is whether the case advanced on behalf of the
applicants identified particular decisions by the IEC that it asked
the Electoral Court
to review.
[46]
The relief sought by the applicants before
the Electoral Court narrowed considerably in the course of argument.
Before this
Court it was confined to seeking an order that the
outcome of the by-elections should be set aside and fresh
by elections
held.  But this relief was consequential upon
the Electoral Court concluding that there were decisions by the IEC
that were
susceptible of review in terms of section 20(1)(a) of the
Commission Act.  That requires an examination of the underlying
complaints that the applicants said justified the grant of this
relief.  As this Court held in
Gcaba
,
[39]
questions of jurisdiction are to be determined on the basis of the
issues identified in the pleadings and in application proceedings
the
affidavits represent both the pleadings and the evidence.
[40]
[47]
The irregularities on which the applicants
relied were threefold.  They concerned the registration of
voters on the voters’
rolls in wards in which they were not
resident; the late issue to candidates of voters’ rolls without
the addresses of voters;
and the declaration by the IEC of the
outcome of these by-elections.  Each of those involved a
decision by the IEC.
In terms of section 8(1), read with
section 8(3)
of the
Electoral Act, the
chief electoral officer, who
is the head of administration of the IEC,
[41]
must decide in which voting district a voter must be registered.
It is the IEC that makes the regulations governing the contents
of
the voters’ roll
[42]
and therefore determined that the roll need not contain the addresses
of voters.  It is the IEC that determines the electoral

timetable
[43]
and is obliged to comply with it.  It is the IEC that determined
the outcome of these by-elections in terms of section 64(1)(a)
of the
Municipal
Electoral Act and
declared the results to the public.
[44]
[48]
As each of these involved a decision by the
IEC, either directly or through its principal administrative officer,
or under delegated
powers,
[45]
they were each subject to review by the Electoral Court under section
20(1)(a) of the Commission Act, read with section 78(1) of
the
Municipal
Electoral Act.  In
exercising its powers the Electoral
Court was entitled to have regard to matters not known to the IEC at
the time they made their
decisions and to replace those decisions
with its own.  That is what the applicants asked it to do and it
had jurisdiction
to do so.
[49]
The IEC did not pursue with any vigour the
argument that the form in which the applicants couched the relief in
the original and
amended notices of motion precluded the Electoral
Court from reviewing these three decisions on the basis of the IEC’s
own
investigations and, if appropriate, granting relief.  In
that it was correct, as was the minority judgment in the Electoral

Court, in holding that this put form above substance.  As the
history of the litigation outlined earlier in this judgment

demonstrates, the issues clarified themselves and transmuted over
time.  The Electoral Court had a large volume of evidence

before it and on these issues there was no dispute of facts.  In
those circumstances, the Electoral Court could, and should,
have
determined the application on its merits, without regard to the form
in which the relief ultimately sought had originally
been cast.
Section 15
of the
Electoral Act
[50
]
The IEC did not deal in argument with the
scope of the jurisdiction of the Electoral Court.  It did,
however, contend that,
insofar as the applicants were raising
objections to the registration of voters on the voters’ rolls
for these seven wards,
they were confined to doing so by way of the
procedure for objecting to the voters’ roll contained in
section 15
of the
Electoral Act.
[46
]
It was common cause that this procedure had not been followed and
accordingly the IEC contended that it was not open to the
applicants
to advance their objections by other means.  In doing so, it
endorsed the finding of the Electoral Court that the
applicants were
obliged to follow this route to pursue their objections.
[51]
Section 15
does indeed provide a mechanism
for lodging objections to the voters’ roll.  The question
is whether it is the only
one.  Importantly, it does not say
that its use is exclusive.  In order to lodge an objection, the
objector first has
to identify the voters who are wrongly registered,
and serve notice of their objection on the people to whose
registration they
object.
[47]
It is unclear how the applicants were supposed to comply with this
requirement and the IEC does not suggest that it was practically

feasible for them to do so.
[52]
To recapitulate, they received their free
copies of their segments of the voters’ rolls on the afternoon
of 4 December 2013
and the election was held on 11 December 2013.
The copies they received contained no addresses.  In order to

lodge an objection under
section 15
, they had to identify from this
unhelpful document the voters to whose registration they objected;
formulate their objection and
support it with documentary
evidence;
[48]
serve the objection on the voters concerned and then wait for up to
fourteen days for the IEC to make a decision.
[49]
That would have taken them well past the election.  To construe
section 15
in the restrictive fashion suggested by the IEC might
advance bureaucratic interests, but it is not consistent with its
broader
obligation to create an environment in which free and fair
elections can take place in which all qualified citizens may
participate
either as candidates or voters
.
[53]
Section 15
is simply not structured to deal
with objections of the type that the applicants were making in
sufficient time to enable by-elections
to be held on a corrected
voters’ roll.  It may well provide a workable procedure
for adoption by large and well-resourced
political parties, who can
monitor the roll throughout the year as voters are added to it or
removed from it.  They have their
own records regarding voters
and other means to enable them to cross-check against the voters’
roll any registration that
they regard as doubtful.  In
addition, they are likely to have available sophisticated computer
programmes that enable them
to correlate the contents of the voters’
roll with other information and enable them to detect errors.
[50]
[54]
But resources of this nature are not freely
available to independent candidates such as the applicants, or
ratepayers’ bodies
participating in municipal elections, or
smaller political parties seeking to make a political breakthrough.
To restrict
their capacity to object to the voters’ roll to a
mode of objection suited only to the large and the well-resourced,
would
be a substantial check on their ability to participate
meaningfully in elections and their constitutional right to stand as
candidates
for public office.  It would be a particularly acute
problem at the level of local government where one finds the majority

of such candidates and groupings.  That construction of
section
15
would not be in accordance with the spirit, purport and objects of
the Bill of Rights as required by
section 39(2).
The clear and
ample rights to participate in the political process protected by
section 19
of the Bill of Rights would be unnecessarily constricted
by this interpretation.  It follows that the applicants were not
confined to objections under
section 15
of the
Electoral Act to
pursue their objections to the registration of voters in wards where
they were not entitled to be registered.
Section 65 of the
Municipal
Electoral Act
[55
]
The IEC also contended that insofar as the
outcome of the by-elections was concerned the remedy for the
applicants lay in pursuing
an objection to the results in terms of
section 65 of the Municipal
Electoral Act.  The
Electoral Court
upheld this contention.  In doing so it overlooked the fact, as
had the IEC, that
section 65(1)(a)
is limited to objections
concerning “any aspect of the voting or counting proceedings
provided for in Chapter 5 or Chapter
6” of the Municipal
Electoral Act.  But
these chapters deal with the mechanics of
voting and counting of votes on and after election day.  They
are not concerned
with the matters that constituted the
irregularities on which the applicants relied.
[56]
Counsel pointed somewhat diffidently to
section 47(1)(a)
in Chapter 5, which provides that a voter may only
vote at the voting station in the voting district where the voter is
registered.
But the complaint is that the voters who had been
incorrectly registered to vote in certain wards should not have been
permitted
to vote at all.  That is not a complaint falling under
this section.
Section 65
(1) was not therefore a route that the
applicants could, much less should, have followed to pursue their
grievances.  That
conclusion renders the argument about whether
the incorrect registrations were material to the outcome of the
elections –
a requirement for relief under
section 65(1)
–
redundant.  The applicants’ right to relief is not
constrained by the need to show that the result of the election
would
have been materially different had the incorrect registrations not
occurred.
Were there electoral
irregularities?
[57]
The answer to this question requires an
examination of the obligations of the IEC in regard to the electoral
issues giving rise
to the applicants’ complaints.  In
terms of section 190(2) of the Constitution the powers and functions
of the IEC must
be prescribed by national legislation.  And the
need for such legislation is readily apparent.  For “the
mere existence
of the right to vote without proper arrangements for
its effective exercise does nothing for a democracy; it is both empty
and
useless”.
[51]
[58]
The starting point is the preparation of
the segments of the voters’ roll to be used in each ward where
a by-election was
held.  This takes place against the backdrop
of the IEC’s own investigation after the December by-elections,
which revealed
that of 3832 new registrations in nine affected wards,
including the six with which we are concerned, between 2000 and 2013,
a
total of 1040 involved the registration of people in wards where
they were not and had not been resident at the time that they
registered and their names were placed on the national voters’
roll.  A further 332 registrations did not have sufficient

conventional addresses to determine whether they were correctly
registered.  Although registered in the correct ward, 359
people
were registered in the incorrect voting district.
[59]
The relevant provisions of the
Electoral
Act dealing
with the registration of voters are the following:
“
6.
Persons who may apply for registration as voter­­–
(1)
Any South African citizen in possession of
an identity document may apply for registration as a voter: Provided
that where that
citizen is ordinarily resident outside the Republic,
he or she must in addition to the identity document produce a valid
South
African passport.
. . .
7.
Applications for registration as voter–
(1)
A person applying for registration as a voter must do so in person in
the prescribed
manner.
. . .
(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.
8.
Registration
(1)
If satisfied that a person’s application for registration
complies with this
Act, and that the person is a South African
citizen and is at least 18 years of age, the chief electoral officer
must register
that person as a voter by making the requisite entries
in the voters’ roll.
. . .
(3)
A person’s name must be entered in the voters’ roll only
for the voting
district in which that person is ordinarily resident
and for no other voting district: Provided that where that person is
ordinarily
resident outside the Republic, his or her name must be
entered in a segment of the voters’ roll created for that
purpose.”
[60]
In
August
this
Court stressed the importance of permitting all citizens to vote in
the absence of any justifiable limitation of that right.
[52]
It accordingly set aside the failure by the chief electoral officer
to register prisoners so as to enable them to vote.
[53]
Following upon that decision section 7(3) was amended to deal with
the identification of the place or ordinary residence
of persons
entitled to vote.  This was important because of the provisions
of
section 8(3)
of the
Electoral Act that
impose a duty on the chief
electoral officer, when making entries in the voters’ roll, to
ensure that the voter is registered
“only for the voting
district in which that person is ordinarily resident and no other
voting district”.
[61]
Ensuring that voters are correctly
registered in the voting district where they are ordinarily resident
is of particular importance
in the context of municipal elections
because they are conducted in the first instance on a ward basis.
National and provincial
elections are conducted on a party list
system.
[54]
[62]
All metropolitan municipalities and local
authorities are required to be delimited in wards.
[55]
The reason for ward representation in municipalities is to bring the
politicians dealing with issues that most directly impact
upon
ordinary citizens closer to home.  Instead of having to deal
with an amorphous political party, citizens in a municipality
have a
local representative, who should be available to them, irrespective
of political affiliation, to address their local problems.

These may appear trivial in the greater political debate, but in a
country where service delivery protests frequently feature in
our
news bulletins and newspapers, they are of central importance to the
majority of ordinary citizens.  If people lack, or
have
inadequate, water, electricity, housing and sewage removal, or have
roads with potholes and without sidewalks, it is to the
municipality
that they turn and to their councillors that they have resort.
The process of election to public office of councillors
is therefore
of cardinal importance for the healthy operation of our democracy at
local government level.
[63]
That process is particularly vulnerable to
manipulation.  If voters can be brought from outside, into a
ward where the political
balance is unclear, their votes may
influence the outcome of the election at a ward level and even the
outcome of an entire municipal
election.  We cannot shut our
eyes to the reality that there are municipalities that are finely
balanced electorally, where
the result in a single ward may affect
the balance of power in the municipality.  That being so, it is
right that particular
attention is paid by the IEC to securing that,
where there are elections and by-elections in wards, the people who
are registered
as voters and permitted to vote should be limited to
those who are legitimately entitled to vote in that ward.
[64]
For that reason
section 8(3)
of the
Electoral Act requires
the chief electoral officer when registering a
voter on the voters’ roll to register that voter in the voting
district in
which they are ordinarily resident.
[56]
That ensures that, when the segment of the national voters’
roll to be used in the conduct of an election or a by-election
in a
particular ward is prepared, it will include only voters qualified to
vote in that ward.  And it is as important to ensure
that those
who are not qualified to vote are excluded, as it is to enable those
who are qualified to vote to do so.
[57]
[65]
In order to enable the IEC to discharge the
obligation imposed by
section 8(3)
, the prescribed form that must be
completed by every aspirant voter when registering to vote requires
them to provide the address
at which they ordinarily reside.
The IEC contended that it was not part of its function to ascertain
whether that address
was correct.  I would reserve any decision
on that point, because it is not germane to the problem in the
present case.
As
section 8(3)
makes clear, what the IEC’s
chief administrator, the chief electoral officer, was obliged to do
was to register the voters
in the voting district in which they were
ordinarily resident when they applied for registration.  That
obligation may not
have required the chief electoral officer to
undertake an investigation of the accuracy of the address given
(although, in a society
where one cannot lawfully acquire a mobile
phone without providing such proof, one wonders why not), but it
certainly required
that the information given in regard to the
voter’s ordinary place of residence had to be sufficiently
clear to ensure that
the voter could be accurately placed in the
correct voting district.  A generic address, whether that of an
informal settlement,
such as Crossroads in Cape Town or Bester’s
Camp in Durban, or that of an upmarket suburb, such as Constantia in
Cape Town
or Morningside in Durban, is simply insufficient for this
purpose.
[66]
Voting districts are not, as the argument
on behalf of the IEC would have it, areas the demarcation of which is
in some way doubtful
or debatable.  They are established by the
IEC itself in terms of
section 60
of the
Electoral Act.  The
IEC
determines the boundaries of each voting district and must prepare a
map showing those boundaries.
[58]
When a voter comes to register as such, it is for the IEC and its
officials to procure as much information from that voter
as is
necessary to enable it to perform its statutory obligation and ensure
that the voter is registered in the correct voting
district and
hence, for the purpose of municipal elections, in the correct ward.
In almost all cases this will be relatively
easy but in some
instances it will present challenges.  It is the IEC’s
responsibility to resolve those challenges.
[67]
The IEC is well aware of these obligations
and the challenges that accompany them.  It provides its
officials with a manual
instructing them on how to proceed when
registering voters.  They are charged with ensuring that the
registration form is
properly completed and that all the required
information is completed.  In regard to the provision of
addresses the manual
reads as follows:
“
Check
that the address is complete
-
For urban addresses:
does
it have a street name and number, suburb, town or flat name and
number
-
For rural addresses:
does
it have a village/farm name and plot number where applicable
-
Is the spelling of street name, suburb,
farm name etc. correct and consistent?
…
-
Residential addresses are required to be
completely filled in, including street numbers and postal codes
(where applicable), as
well as contact details”.
This is followed by
an injunction that clearly relates to
section 8(3)
of the
Electoral Act.  If
the addresses provided on the REC 1
form
[59]
fall outside the voting district in which registration is being
applied for, and the applicant insists on being registered in that

voting district the IEC official is obliged to issue a notification
of refusal form.  In other words they are obliged to refuse
to
register the voter in that voting district.  This demonstrates
that any belief on the part of the IEC and its officials
that they
have no option but to register as a voter in any particular ward
everyone who seeks registration in that ward, whether
or not entitled
to it, is incorrect.
[68]
That the IEC did not do this in the case of
the wards in Tlokwe is apparent from its own investigation.  But
the limitations
of that investigation must also not be overlooked.
It dealt only with new registrations in the affected wards between
2000
and February 2014.  It covered only 3832 voters.  Of
those 1040 were definitely registered in the incorrect ward.

But 332 additional voters were problematic because the addresses
given on their registration forms were so sketchy that it was

impossible to say whether they were registered in the correct ward.
A number of others were registered in the correct wards
but in the
wrong voting districts.  No information was tendered in regard
to other registrations in these wards or their accuracy.
[69]
What is troubling about this is that there
is no explanation of how the incorrect registrations were made.
Assume that the
addresses given by these voters were inadequate, so
that it was unclear in which voting district, and hence in which
ward, they
should be registered.  Why then were they placed in
the incorrect wards instead of the correct ones?  Was that
purely
random?  It would be surprising if it were.  The IEC
had conducted voter registration drives in the wards where the
by-elections
took place.  Many of these registrations must have
occurred during those registration drives.  Were voters
automatically
registered as falling in those wards?  If so, the
system adopted lent itself to manipulation because a well-organised
political
party or group would be able to present as new voters for
registration, people who were not in fact qualified to be registered
in that particular area and thereby strengthen its own cohort of
support in that ward.
[70]
The absence of an explanation lends
credence to the detailed complaints by Mr Kham in regard to the
registration process.
For example, he complained that among the
REC 1 forms furnished to him in response to his request was a bundle
entitled “Maricana”.
Among these were a number –
he did not give the figure but said the bundle was voluminous –
with no address other than
the word “Maricana”.  This
is an informal settlement falling outside ward 13 but all the voters
whose forms contained
this address were registered in ward 13.
Some of the forms in this bundle did have addresses, but the
addresses given were
all in ward 17.  However all these voters
had been registered in ward 13.  In response to this complaint
the IEC did
not analyse the documents or engage with the specific
allegations made by Mr Kham.  Its deponent simply annexed a
single REC
1 form from the “Maricana” bundle showing a
physical address, albeit not one with a street name or house number,
and
said that there was a physical address and that this complied
with the legislation.  But this was not a response to the pith

of the allegations made by Mr Kham, which was that voters from this
informal settlement had been registered in a ward other than
that in
which they were ordinarily resident.
[71]
No proper response was forthcoming to
another of Mr Kham’s complaints, this time in relation to ward
20.  He produced
and annexed to his affidavit a bundle titled
“Ward 20” and said that in these forms no street names or
numbers were
mentioned on the forms, merely the name of a suburb.
He pointed out that this was irregular because on either side of
certain
streets there are two different wards, presumably because the
street constitutes the ward boundary.  In other instances only

an extension of a suburb was mentioned or there was reference to an
informal settlement called “Baipei”, whereas there
is
more than one settlement with that name in various wards.  His
conclusion was that more than 350 voters on the segment
of the roll
in use in ward 20 were resident outside the ward.  These
specific and documented complaints attracted the
cursory response
that with regard to ward 20 “the requirements for the
registration of voters as set out in Chapter 2 of
the
Electoral Act
were
adhered to”.
[72]
It is unnecessary to try and tease out the
implications of this any further.  On the IEC’s own
investigation there were
a number of registrations of voters in the
affected wards that should not have occurred.  To that extent
the by-elections
were conducted on the basis of inaccurate voters’
rolls and some at least of the wrongly registered voters voted.
In
other words there was a breach of the principle that only those
legally entitled to do so should be permitted to vote.  It
may
well have been more extensive than the IEC report indicated but on
any footing it was not insignificant and occurred across
all the
wards where by-elections took place.
[73]
The next complaint relates to the
production of the segment of the voters’ roll used in each
ward.  It is common cause
that this did not include the voters’
addresses.  This raises two issues.  Was it permissible for
the IEC to supply
voters’ rolls without addresses and what
impact would this have on the ability of candidates, such as the
applicants, to
contest the by-elections?
[74]
The part of
section 16
of the
Electoral Act
dealing
with the IEC’s obligation to make the relevant portion
of the voters’ roll available during a by-election reads
:
“
(1)
A copy of the voters’ roll as it exists at any time must be
available for inspection during
office hours at the Commission’s
head office, and the provincial and municipal segments of the voters’
roll must be
available for inspection at the times and venues
mentioned in a notice published by the chief electoral officer in the
Government
Gazette.
(2)
The chief electoral officer must provide a certified copy of, or
extract from, a segment
of the voters’ roll as it exists at
that time, to any person who has paid the prescribed fee.
(3)
Notwithstanding subsection (2), the chief electoral officer must, on
payment of the
prescribed fee, provide copies of the voters’
roll, or a segment thereof, which includes the addresses of voters,
where such
addresses are available, to all registered political
parties contesting the elections.”
[75]
The IEC’s approach was that the
voters’ roll does not need to include the addresses of voters.
It relied for this
on the provisions of
regulation 10
of the
regulations governing the registration of voters , which says that:
“
The
particulars to be entered in the voters’ roll when registering
a person as a voter, are the consecutive number, the identity
number
and the name of the voter.”
The justification for
omitting the address of the voter was said to be to prevent the abuse
of the voters’ roll by persons
wishing to use it for purposes
other than legitimate electoral purposes, for example, marketers.
Such use is a criminal offence
under
section 16(4)
of the
Electoral
Act.
[76
]
The difficulty with this approach is that
section 16(3)
of the
Electoral Act explicitly
requires the IEC to
provide a voters’ roll with the addresses of voters to all
registered political parties contesting the
election.  It was
wisely not suggested that political parties would be treated more
favourably than independent or unaffiliated
candidates.  That
would be a clear and unjustifiable breach of the constitutional right
of such candidates to stand for public
office in free and fair
elections.  The drafting of the section may have overlooked
independent and unaffiliated candidates,
but it must clearly be
construed as referring to all candidates participating in an
election.
[77]
The obligation to provide all
candidates with a copy of the relevant segment of the voters’
roll containing the addresses
of voters in the ward with their
addresses (“where such addresses are available”) was
ignored by the IEC in this case.
That was a serious breach of
its statutory obligations.  Without voters’ addresses the
ability of candidates to canvass
voters is significantly impaired.
In these wards, in addition to residences of a conventional
type as reflected on the plans
and photographs, where street names or
numbers and house numbers should be available, there are areas of
informal settlement.  Candidates
given a voters’ roll that
merely reflects names and ID numbers are faced with an enormous task
in trying to identify which
residents are registered to vote.
Even in areas where there are formal dwellings many of the residents
may not have telephones
and be capable of identification by reference
to the telephone directory.  The ubiquitous mobile phone is not
to be found
in conventional directories.  How then does a
candidate convert the list of names into identifiable voters who they
will want
to contact and persuade to give them their votes?
[78]
These difficulties would have been
compounded by the fact that the candidates in the December
by-elections were only provided with
copies of the segments of the
voters’ roll applying to their wards on 4 December 2013, a mere
seven days prior to the election.
Section 11(1)(a) of the
Municipal
Electoral Act required
the IEC to prepare an election
timetable and, in the absence of any change to that timetable, it was
obliged to comply with it.
[60]
The timetable for the December by-elections provided that the
segments of the voters’ roll had to be prepared and certified

by 14 November 2013 and that candidates had to be certified
by 25 November 2013.  That was accordingly the date
upon which
they became entitled to receive a copy of the segment of the voters’
roll for their ward in terms of
section 16(3)
of the
Electoral Act.
They
did not receive it until nine days later.  That was a
breach by the IEC of its obligation under section 11(3) of the
Municipal
Electoral Act to
comply with the timetable.  And it is
interesting to note that the minutes of a meeting of the
representatives of the candidates
convened by the IEC on 3 December
2013 recorded that all candidates complained about the late delivery
of the segments of the voters’
roll.
[79]
In the absence of greater detail it
is not possible to assess the full impact of this breach by the IEC
of its obligation to comply
with the electoral timetable on the
by elections.  We do not for example know what the
candidates had been doing to canvass
voters from October, when the
by-elections were postponed, through November until the final roll
was made available to them.
We do not know what alternative
means they had available to identify voters in these wards and make
contact with them.  However,
it is probable that the political
parties would have been better situated than independent candidates
to do so.
[80]
In three respects therefore the
by-elections in December 2013 were infected with irregularities.
Mr Kham’s by-election
in September involved irregular
registration of voters and the provision of a segment of the voters’
roll that lacked addresses.
However, it was not established
that there were any further irregularities in the preparation for and
conduct of this by-election.
Mr Kham made far-ranging
allegations of further irregularities in regard to registration of
unqualified voters, in respect
of which the evidence available to him
was limited, but which were not adequately rebutted by the IEC.
He did not seek to
establish these by oral evidence before the
Electoral Court.  He was content, without abandoning them, to
pursue the litigation
relying largely on the IEC’s own
investigation.  The impact of the established irregularities on
the proper conduct
of the by-elections must be assessed against this
background.
[81]
In regard to the December
by-elections all three identified irregularities were present.
They were more seriously affected
by the irregularities than the
earlier by election in September.  In respect of all seven
the IEC urged the Court not
to set aside the outcome.  On its
analysis of the number of voters irregularly registered who had voted
in each ward, even
if those voters were all assumed to have cast
their ballots for the successful candidate, it would not have
affected the outcome
of the election.
[61]
Although the argument was initially advanced on the basis of the
principle set out in
section 55
of the
Electoral Act and
section 65
of the Municipal
Electoral Act, it
was pursued on the general ground
that the analysis demonstrated that the declared outcomes of the
by-elections accorded with the
broad will of the electorate and
should not be disturbed.  Reliance was placed on the preamble to
the Constitution, which
records that government is based on the will
of the people.
Were the by-elections
free and fair?
[82]
Article 21 of the International
Declaration of Human Rights provides that
:
“
(1)
Everyone has the right to take part in the government of his country,
directly or through freely
chosen representatives.
. . .
(3)
The will of the people shall be the basis of the authority of
government; this will
shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be
held by secret
vote or by equivalent free voting procedures.”
[62]
[83]
While not using the expression “free
and fair elections” – an expression that entered the
general political lexicon
in 1978 when it featured in the United
Nations Security Council Resolution 435 calling for “the early
independence of Namibia
through free and fair elections under the
supervision and control of the United Nations”
[63]
– the Universal Declaration of Human Rights encapsulates the
fundamental principles on which democratic societies rest.
In
our Constitution the principle finds expression in the commitment of
our society to universal adult suffrage, a national common
voters’
roll, regular elections and a multi party system of
government.
[64]
But that commitment, whilst necessary to achieve a democratic
society, is not on its own sufficient for that purpose.
For
that reason our Constitution establishes the IEC as a Chapter 9
institution supporting constitutional democracy, and charges
it with
ensuring that all elections are free and fair.
[65]
[84]
By what standard is a court to determine
whether an election was free and fair?  In this case the
applicants complain that
the registration of voters who were not
entitled to be registered in the wards they were contesting, coupled
with the problems
with the voters’ roll, meant that the conduct
of these by-elections did not measure up to the constitutional
standard because
they were not free and fair.  The complaint
does not relate so much to the outcome of the by-elections as to the
manner in
which they were held, although, no doubt, as with all
unsuccessful candidates, the applicants harbour a lingering belief
that if
the by-elections had been conducted without these
deficiencies the result would have been different.  As was said
by the First
Chamber of the European Court of Human Rights in
Aliyev
v Azerbaijan
:
“
The
applicant was entitled . . . to stand for election in fair and
democratic conditions, regardless of whether ultimately he won
or
lost.”
[66]
[85]
The applicants complain that, by virtue of
the irregularities that affected the electoral process, these seven
by-elections were
not fairly conducted.  Their ability to
participate fully and effectively in the by-elections was hampered by
the failure
of the IEC to fulfil its obligations in regard to the
registration of voters, and the content and timing of the production
and
provision of the relevant segments of the voters’ roll.
The focus must be on the impact that this had on their exercise
of
the right to stand for public office.  It is not on whether they
would have won or lost had the arrangements for the by-elections
been
different and not suffered from the flaws of which they complain, but
on whether they were seriously hampered in their participation
in the
electoral process.
[86]
It must be stressed that the judgement
whether an election was free and fair has to be made in the specific
context of the Constitution.
In certain instances it may be
appropriate to be guided by identifiable international norms, where
these exist.  But the constitutional
requirement is that
elections must be free and fair.  This is a single
requirement,
[67]
not a conjunction of two separate and disparate elements.  The
expression highlights both the freedom to participate in the

electoral process and the ability of the political parties and
candidates, both aligned and non-aligned, to compete with one another

on relatively equal terms, so far as that can be achieved by the
IEC.  As to the former, from the perspective of a political

party or an individual candidate seeking election in a municipal
ward, it demands the freedom to canvass; to advertise; and to
engage
in the activities normal for a person seeking election.
Phenomena like “no go” areas; the denial of facilities

for the conduct of meetings; disruption of meetings; the destruction
of advertising material or the intimidation of candidates,
workers or
supporters, could all prevent an election from being categorised as
free and fair.
[68]
Fortunately these ugly electoral phenomena were not part of what
occurred in Tlokwe on this occasion.
[87]
As to the latter, organisationally and
financially the larger political parties will have advantages that
their smaller cousins
and individual candidates will lack.  But
the latter may have advantages in greater local knowledge and
understanding of the
area, and be able to make a fuller commitment to
the interests of the voters in a ward than someone who must hew to a
party line.
These are not issues with which the IEC need
concern itself.  Its concern in modern parlance is to try to
ensure a “level
playing field”,
[69]
in which all the participants can compete without any undue hindrance
or obstacle occasioned by the manner in which the preparations
for
the election have been undertaken or the way in which the election
has been conducted.
[88]
Measuring whether an election was free and
fair starts by comparing what happened in the conduct of the election
against the public
standards put in place by legislation and the IEC
itself for the conduct of free and fair elections.  In the
respects identified
earlier in this judgment the IEC fell short of
those standards.  The precise effect of this on the outcome of
the elections
cannot be measured at this stage.  That involves
speculation.  All that can safely be said is that the
independent candidates
were constrained to fight these by-elections
under the shadow of uncertainty occasioned by the registration of an
unknown number
of voters who were not entitled to vote and an
inability to identify who these were or to do anything about it.
Their efforts
were hampered by the late delivery of the segments of
the voters’ roll and, in particular, the absence of voters’
addresses,
when those segments were delivered.
[89]
These problems are in turn linked to the
problem of registration in the different wards of people not entitled
to be so registered.
The only mechanism available to the
independent candidates to check on this was to compare the segments
of the voters’ roll,
once received, with the forms that Mr Kham
had obtained from the IEC on 1 October 2013.  No such
process of comparison
could be undertaken until the segments of the
voters’ roll were delivered to candidates, which occurred only
six days prior
to voting.  While the IEC concedes that 1040
people who were not entitled to be registered or to vote there, were
registered
to vote in these wards, the applicants contend that there
is no satisfactory basis for relying upon even these figures.
They
said in their affidavits that, with the information at their
disposal, it was impossible to check the accuracy of the IEC’s

figures.
[90]
What is the test for determining whether an
election process suffering from these defects is free and fair?
The point has
been made earlier that this involves a value
judgement.  The nature of the irregularities and their impact on
the conduct,
as well as the result of the election, so far as that
can be assessed, must be measured against the constitutional
standard.
The Electoral Court or another court required to make
this judgment – in the present case, this Court – must
weigh
all the evidence and, in that light, determine whether the
constitutional requirement was satisfied.  Because the facts
will
be different in every instance where the question arises, it is
appropriate to say that the existence of a particular deficiency
in
one case, does not necessarily mean that the presence of the same
deficiency in another election held in differing circumstances,
will
result in the same conclusion.  For example, in a national
election, the fact that voters, otherwise qualified to vote,
are
registered in the incorrect voting district, may be of less
significance than in a municipal by-election.  But late delivery

of voters’ rolls, or delivery of rolls with important
information missing, may assume even greater significance at the
national
than the local level.
[91]
It is undesirable to articulate a general
test expressed in language different from that of the Constitution,
as that may be misleading.
The Court must give full weight to
the constitutional commitment to free and fair elections and the
safeguard it provides of the
right and ability of all who so wish to
offer themselves for election to public office.  It is essential
to hold the IEC to
the high standards that its constitutional duties
impose upon it.  It is insufficient for the Court to say that it
has a doubt,
or a feeling of disquiet, or is uncomfortable about the
freedom and fairness of the election.  It must be satisfied on
all
the evidence placed before it that there are real – not
speculative or imaginary – grounds for concluding that they

were not free and fair.
[92]
These seven by-elections fail that test.
They were conducted against the background of fears that voters had
been wrongly
registered in wards where they were not ordinarily
resident and not entitled to vote.  It transpired that these
fears were
well founded.  The IEC has proffered no
satisfactory explanation for this occurring, seeking instead to
shelter behind
a contention that it is not obliged to verify voters’
addresses.  In adopting that stance, it revealed that it was
non-compliant
with its statutory obligation to ensure that voters are
registered in the voting district in which they are ordinarily
resident
in over a quarter of cases over a thirteen year period.
It also revealed that, in nearly one twelfth of new registrations
in
the affected wards, it did not obtain addresses or information from
voters that would enable it to perform this statutory obligation.

On what basis then were these voters registered?  And a similar
proportion was registered in the wrong voting district, although
in
the correct wards.  Was this purely fortuitous?  We cannot
tell.  All that can be said is that an election conducted
when
there is a serious question as to the reliability of the voters’
roll cannot be described as free and fair.
[93]
In the case of the December by-elections
that conclusion is compounded by the late delivery of the relevant
segments of the voters’
roll and the absence of addresses on
those segments.  (Whilst not the subject of an express complaint
in the affidavits it
must also have been the case that in the
September by-election the segment of the voters’ roll provided
to Mr Kham lacked
addresses).  As to the former there is no
explanation at all.  As to the latter the IEC’s approach,
on the basis
of a regulation that it had promulgated, was that it was
under no obligation to do more.  That would arguably be wrong
even
in the absence of an express provision such as
section 16(3)
of
the
Electoral Act.
[94
]
I can see force in the contention that in
order for an election to be fairly conducted it is necessary that the
participants have
available to them not simply a list of voters’
names and identity numbers but also some means of identifying and
contacting
them, of which the voters’ addresses is the most
obvious.
[70]
But it is unnecessary in the light of
section 16(3)
to reach a firm
conclusion on this question and I would hesitate to do so without
further enquiry into the electoral systems of
other democratic
countries and the requirements for the preparation of voters’
rolls there.  Here, the IEC was in breach
of its obligations
under
section 16(3)
of the
Electoral Act in
not furnishing segments
of the voters’ roll with addresses where those were available.
That failure was compounded by its
failure, in breach of the
requirements of section 11(3) of the Municipal
Electoral Act, to
make
the segments of the voters’ roll available to certified
candidates in accordance with the provisions of the electoral

timetable that it had promulgated.  Once again no reason was
proffered for this failure.
[95]
It follows that these elections were not
free and fair.
Relief
[96]
It is plain that there must be a
declaratory order.  That follows from the Court’s
obligation to declare law and conduct
that is inconsistent with the
Constitution invalid to the extent of its inconsistency.
[71]
The more difficult question is whether, as the applicants asked, in
granting a just and equitable remedy,
[72]
we should set aside the outcome of the by-elections and direct the
IEC to conduct fresh by-elections in the affected wards.
[97]
This Court’s jurisprudence directs
that we should grant a successful litigant effective relief.
[73]
It also holds that when dealing with public bodies a declaratory
order often suffices to provide effective relief without
the need to
go further.
[74]
But the overriding obligation is to grant just and equitable relief
and that requires the Court to consider carefully all
the possible
ramifications of its order.
[98]
It is tempting to conclude that an election
that was not free and fair must inevitably be set aside.  But
that may be an unduly
facile conclusion.  Overturning an
election is a serious business.
[75]
Lucas CJ in California said:
“
It
is a primary principle of law as applied to election contests that it
is the duty of the court to validate the election if possible.
That
is to say, the election must be held valid unless plainly
illegal
.”
[76]
These are cautionary
words that we do well to bear in mind.  But they cannot be
decisive.  For the other side of the coin
is that where the
integrity of an election is in doubt–
“…
preservation
of the integrity of the election process is far more important in the
long run than the resolution of any one particular
election.”
[77]
[99]
Electoral legitimacy and the integrity of
the electoral process are of enormous importance in South Africa.
[78]
Many people, in many different ways, struggled and fought to
secure the right to vote for all people in South Africa.
It was
a right denied to the vast majority of this country’s
citizens.  Many devoted their lives to the struggle for

democracy.  Others were imprisoned, banned, harassed and
exiled.  No-one who was in, or has seen photographs of, the

patient queues that waited for hours to cast their votes in the first
democratic election can have any doubt that the right to
vote is a
precious one for all South Africans.  The struggle of all those
who worked to bring democracy to this country is
properly honoured
when we conduct free and fair elections to determine the will of
those who now have the right to vote.
It is vital therefore
that we are jealous of the privilege so hardly won.  In
determining a just and equitable remedy, where
an election has been
held not to be free and fair, these considerations must form the
backdrop to the performance of the Court’s
role as the guardian
of the Constitution and the IEC’s performance of its obligation
to ensure free and fair elections.
[100]
In many countries, where elections are
conducted on a constituency basis the only ground for setting aside
an election is proof
that the exclusion of votes tainted by
irregularity would mean that the result of the election could have
been different.  That
was the basis upon which electoral
petitions were disposed of under the pre democratic
dispensation, drawing upon precedents
in electoral law from
England.
[79]
The Court’s sole task was to determine whether the
irregularities would have affected the result of the election.

In doing so it would examine and rule on disputed votes and then
re-count the votes to see whether the outcome would have been
any
different.  It is the basis for what is referred to in Canada as
the “magic number” test, that being the number
of
irregular votes that a claimant must prove were admitted in order to
have the result of an election set aside.
[80]
But in South Africa that cannot be the sole determinant of just and
equitable relief, where the elections conducted by the
IEC were not
free and fair and the constitutional right to participate in and
contest those elections was infringed.  In any
event it is
always difficult to predict what would have occurred had those
electoral irregularities been absent.
[101]
Does that mean that the views of those
legitimate voters who voted in these by elections are
irrelevant?  Surely not.
Elections are not solely or
principally about councillors or candidates.  They are primarily
about the right of voters to
participate in elections and thereby to
have their say in how they are governed.  The expression
“government of the
people, by the people, for the people”
was coined on a different continent in a country wracked by civil
war,
[81]
but it resonates in South African ears.  We too are committed to
a government based on the will of the people and that will
finds its
primary expression in the outcome of elections at all levels.  If
these by elections are set aside the legitimate
votes of
legitimate voters will have been fruitless.  And, for all we
know, had the irregularities not been present their
choice would have
fallen on the same candidates who were declared elected.
[102]
This consideration is what lies at the
heart of the IEC’s submission that whatever the deficiencies in
the election process
the results must stand.  And there is
substance in the point they make.  The applicants do not suggest
that with a segment
of the voters’ roll in each ward, shorn of
improper registrations, there was any real likelihood of their
achieving electoral
success.  They do not deal at all with the
effect of the irregularities on their election campaigns.  Their
focus in
the affidavits is almost exclusively on their efforts to
ascertain whether voters had been improperly registered.  But a
closer
examination of the elections indicates that their electoral
prospects were poor.  In two of the wards (wards 4 and 13) the

independent candidate finished third and the representatives of the
party that finished in the runner-up position, do not challenge
the
outcome.  In three wards (wards 1, 11 and 12) the margins of
victory by the successful candidates over the independent
candidates
were so large and the number of votes cast for the latter so small
(253, 106 and 96 respectively), that improper registrations
were
unlikely to have been the cause of the successful candidates’
victories.  In only three wards did the independent
candidates
achieve reasonably substantial numbers of votes and restrict the
successful candidates’ majorities to more modest,
albeit still
significant, levels.
[82]
This must be compared with the outcome of the
election in ward 26 on 18 September 2013, which also involved a
contest between an
independent candidate and one representing the
ANC.  This ward was also, according to the evidence, affected by
the registration
of persons not entitled to register.  But that
did not prevent the independent candidate from winning with a
substantial majority.
[103]
We are faced with the need to weigh
disparate interests.  The applicants rightly complain that the
by-elections were not free
and fair and that their constitutional
right to participate in the by-elections was thereby infringed.
One can add that their
constitutional right of freedom of speech was
also limited in that they were restricted in their ability to convey
their political
message to their chosen electorate.  The IEC
points to the interests of those voters who participated legitimately
in the
by-elections and made their choice, but face having that set
aside.  It is true that they will have the opportunity in that

event to vote again in a by-election but that is not a perfect
answer.
[83]
Not only will
the electorate have changed, by virtue of death, people moving
elsewhere, new registrations,
especially
of younger voters,
and possible expansion of residential areas in the wards, but there
may also be different candidates.  The
issues in fresh
by-elections are likely to be different from those that were relevant
two years ago.  The media attention
they are likely to receive
will be different.  All in all they will be different
elections.
[84]
[104]
If the outcome of these by-elections is set
aside, that will have certain consequences beyond merely the need to
hold fresh by-elections.
Councillors who have been holding
office for between 22 months and two years will be removed, with the
loss of salary and other
benefits to which the holding of that office
entitles them.  The evidence does not go so far as to suggest
that any of them
or the party they represent were responsible for the
electoral irregularities.  But none of them, although afforded
the opportunity
to do so by the Electoral Court, entered the lists to
point out why, if there were deficiencies in the electoral process,
these
should not be remedied by setting aside the elections and
holding by elections.  Nor did the IEC suggest that there
were
any insuperable logistical difficulties facing it in convening
further by elections.  I do not think that these issues
are
relevant to the decision we must make.
[105]
A possible relevant factor is that a
national municipal election must take place at some time between next
May and next August.
Allowing for the elapse of time between
the argument and the finalisation of this judgment, as well as the
logistical requirements
for holding by-elections, it seems unlikely
that fresh by-elections could be arranged and held more than a few
months prior to
the national municipal elections.  The voters in
these wards will then have the opportunity to choose fresh
councillors and
the applicants will have a renewed opportunity to
advance their claims to election to public office.  Elections
are not inexpensive
and impose costs upon public funds as well as
upon the participants.  Is it desirable that these costs be
imposed upon all
concerned when the voters will in any event go to
the polls a matter of a few months later?
[106]
It is notorious that voter turnout in
by-elections is usually low and voters who know that they will in any
event be called on to
vote again relatively soon, will be disinclined
to make a great effort to vote in the by-election as well.  This
points against
an order setting aside the by-elections.  But
again it cannot be decisive.  The voters in these wards were
deprived of
the free and fair election to which they were entitled.
The candidates were deprived of the right to participate in a free

and fair election.  Saying to them that in any event they will
have an opportunity in May to elect fresh representatives and
stand
for election will not redress that.  That is a right they
already have.  To merge it with the need to hold fresh

by-elections is effectively to deprive the voters of their initial
right to a free and fair election.
[107]
But there is a statutory reason why the
impending national municipal election does not provide a ground for
not setting aside these
by-elections and ordering that fresh
by-elections be held.  It is that the proximity of national
municipal elections to a
possible by-election is dealt with in
section 25 of the
Local Government:
Municipal Structures Act 117 of 1998 (
Structures Act)
.
In terms of section 25(1)(b) a by election must be held if
a court sets aside the election in a ward.  The municipal

manager is obliged in terms of section 25(3)(b), after consulting the
IEC, to call and set a date for the by-election which is
within 90
days of the court’s order.  If the municipal manager fails
to do that then the MEC for local government of
the province must do
so instead, but within the same time parameters.
[85]
This does not interrupt the term of a municipal council.
[86]
[108]
Section 25(6) provides
:
“
(6)
The municipal manager of a municipality may not call a by-election in
terms of subsection (3)
if—
(a)
the next election of all municipal councils must be held—
(i)
within nine calendar months of the applicable date mentioned in
paragraph (a),
(b) or (c) of subsection (3); or
(ii)
if it is a by-election in a ward, within six calendar months of the
applicable date
mentioned in paragraph (a), (b) or (d) of subsection
(3); and
(b)
the MEC for local government in the province decides that the
by-election must stand
over until the next election of all municipal
councils.”
[109]
The relevant provision is section
25(6)(a)(ii) which provides that if the next election of all
municipal councils must be held within
six calendar months of the
court’s order then the municipal manager may not call a
by-election in a ward, if the MEC in charge
of local government
decides that the by-election must stand over until the next election
of all municipal councils.  The corollary
to this is that, if
the period between the court order and the next election of all
municipal councils is more than six calendar
months and a vacancy
arises in a ward for any of the reasons identified in the section, a
by-election must be called.  So
the statute itself provides the
benchmark against which to measure whether an impending election in
all municipal councils should
stand in the way of the grant of an
order setting aside the outcome of a by-election in a ward.  The
clear intention is that
unless there is less than six calendar months
to go until the election in all municipal councils a by-election
should be held.
[110]
Section 25(a)(i) does not apply in this
situation.  It is only applicable in circumstances where the
by-election relates to
the election of the entire council, either
because the IEC has not declared the results for an election for the
council; or because
a court has set aside the election for a council;
or because a council has been dissolved.  But where the vacancy
arises in
a specific ward it is section 25(a)(ii) that applies.
[111]
In concluding this assessment of a just and
equitable remedy, I return to the constitutional standard.
[87]
It is that elections must be free and fair.  The reason is to
protect the constitutional rights of voters and citizens
who wish to
offer themselves for election.  When an election is not free and
fair these rights are materially infringed.
The Constitution
points emphatically in the direction of the need to secure the
integrity of the electoral process.  Here,
the unexplained
registration of voters who were not entitled to vote corrupted that
process.  The failure to comply with the
electoral timetable in
December 2013 hampered the participants in the by-elections in their
endeavours to canvass the support of
their electorate.
[112]
The absence of addresses in the segments of
the voters’ rolls provided to the candidates restricted their
ability to identify
and root out improper registrations as well as
their ability to canvass voters effectively.  To say that this
made no difference
is a matter for speculation.  Even had the
independent candidates lost, they may still have been able to build
an electoral
base that would have led to success at a later stage.
Their ideas and arguments could have influenced the behaviour of
elected
office bearers thereafter.  It is apparent that the
IEC misconstrued its obligations in material respects.  This
has
to be corrected.  Overall the balance must come down on the side
of electoral integrity.  The outcome of these seven
by-elections
must be set aside and the IEC must be directed to hold fresh
by-elections.  In terms of sections 25(3)(b) and
25(4) of the
Structures Act there is a statutory obligation on the relevant
officials and the IEC to arrange for the by-elections
to be held
within 90 days of this Court’s order.  It is accordingly
unnecessary to put the IEC on terms to arrange for
the by-elections
to be held.  The statutory period is definitive of their
obligation.
[113]
Nonetheless after the hearing, and as a
precautionary measure, directions were issued to the parties asking
them to deal with any
practical problems that might arise from an
order setting aside the outcome of these by-elections.  The
terms of the directions
were as follows
:
“
1.
The first respondent is directed to furnish the following information
on affidavit
on or before Wednesday, 18 November 2015:
(a)
Should any declaration in regard to the outcome of the elections and
steps to be taken
by the Electoral Commission in conducting elections
operate retrospectively or prospectively?
(b)
Will it be practicable to hold fresh by-elections by 28 February
2016?
(c)
If not, why will it be impracticable?
(d)
If not practicable, how much additional time is required?
2.
The second respondent is directed to furnish the following
information on affidavit
on or before Wednesday, 18 November 2015;
(a)
Would an order setting aside the
impugned by-elections with prospective effect disable
the
Municipality from performing its functions and, if so, in what
respects and why?
3.
The applicants are directed to furnish their representations, if any,
on 1 and
2 above on affidavit on or before Friday, 20 November 2015.”
[114]
The IEC responded to the first question by
saying that any declaration in regard to the conduct of by-elections
generally should
operate prospectively.  So did the applicants.
I agree.  It would not be appropriate for us to make an order
that
had within it the seed of possible legal challenges to the
operations of the Tlokwe Local Municipality during the past two

years or the seed of challenges to the outcome of other by-elections.
[115]
The IEC’s response to the question
whether it would be practicable to hold by elections by 28
February 2016, which was
slightly more than 90 days after the date
the directions were issued, was more elliptical.  The chief
electoral officer said
that it would be “possible but not
realistic, workable or viable”.  He explained that
municipal elections for
all municipal councils will, in terms of the
Structures Act, have to be held between 18 May and 16 August 2016.
But then
he submitted that a municipal manager could not call a
by-election on or after 16 November 2015, because that would, so he
said,
be contrary to section 25(6)(a)(i) of the Structures Act.
That is incorrect, because the relevant section is section
25(6)(a)(ii)
as explained above.  The position is that if the
Court sets aside the outcome of those by-elections there will be an
obligation
on the municipal manager to call and set a date for
by-elections in these wards.  The date must be no more than 90
days from
the date of the Court’s order.  According to the
chief electoral officer’s explanation of the timetable for a
by election, it can be called and held in 32 days.  There
is accordingly ample time to hold by-elections in the present
case.
[116]
The IEC’s concern was that the
quality of the by-elections could be compromised because of the
failure of voters to register
in what it described as “hastily
convened elections” where it would be “under extreme
pressure”.
On what basis the IEC said this is unclear.
The question posed in this Court’s directions related to the
conduct of
by-elections within the statutorily prescribed period of
90 days after a court order setting the result of the previous
by-elections
aside.  In all four instances specified in section
25(1), where a by-election has to be held, the by-election must occur
within
90 days of the event triggering that by-election.  Since
the Structures Act came into operation in 1999 the IEC has conducted

countless by-elections in every part of the country, without
apparently finding these time constraints irksome or in any way a

hindrance to the conduct of free and fair elections in an efficient
manner.  It advances no good reason why Tlokwe should
be any
different.  The by-elections in Tlokwe in September, October and
December 2013 took 40, 34 and 46 days to finalise,
inclusive of
registration drives.
[117]
In brief the reasons advanced by the IEC
relate to the difficulties it says it faces in registering voters in
informal townships.
But this has not apparently been a
difficulty in the past, nor is it suggested that Tlokwe poses unusual
challenges.  The
IEC is also labouring under a misapprehension,
which this judgment should help to dispel, that it is obliged to
verify voters’
addresses when they register.  That is
incorrect.  What they are obliged to do is obtain sufficient
information from
the voter as to their ordinary place of residence,
to ensure that they are registered in the correct voting district and
correct
ward.  This should not be unduly difficult as according
to the affidavit of Mr Maduna, delivered by the applicants in their

response to the directions, the only ward in which there are no
verifiable addresses is ward 20 and that relates only to 10% of
the
ward area.
[118]
If the voter does not have an address –
and, even in informal settlements, very often sites or the dwellings
are numbered
or identified in some way – the IEC is not obliged
to refuse them registration.  Nor is the segment of the voters’

roll relating to that voter invalidated by the absence of an address.
Section 16(3) makes it clear that their inclusion is
dependent
on the addresses being available.  That means that the IEC must
endeavour to ascertain from the person coming to
register an address,
where they have a physical address, or some detail that will serve as
an address for the purposes of the roll.
But if there is none
then, provided they are registered in the correct ward, they must be
registered and the absence of an address
does not affect the validity
of the voters’ roll.
[119]
After dealing with the alleged difficulties
in regard to registration of voters in these areas the chief
electoral officer said
that it would add three weeks to the election
timetable.  But that still leaves it well within the statutory
90 day period.
The applicants say in their affidavit in
response to the directions that there has been little movement in
these wards since the
national elections in 2014 so that compiling a
roll for by-elections should be a matter of removing people whose
names should not
be there and updating the roll.  The only other
problem mentioned by the IEC is that we are approaching the Christmas
holiday
period and people may go away.  But it rejected that as
a ground for postponing the December by-elections in 2013, so it
should
not be able to rely on it now.
[120]
In relation to paragraph 2 of the
directions addressed to the MEC for Local Government and Human
Settlements, the acting MEC
and the Speaker of the Tlokwe Local
Municipality delivered affidavits.  The MEC pointed out that in
order for council business
to be undertaken it is necessary in terms
of section 30 of the Structures Act for a majority of councillors to
be present.
On the assumption that this means a majority in
number of all possible councillors, ignoring any vacancies, she
expressed concern
that in view of the relatively close balance
between major parties in the council
[88]
setting aside the election of these councillors would lead to a
situation where either of the major parties could, by simply not

attending council meetings, bring the work of the council to a
standstill.  She indicated that this had occurred in the period

prior to the December 2013 by-elections.  The Speaker shared
this view.  Both said they were concerned that the council
would
be rendered dysfunctional as a result of such tactics by one of the
major parties.
[121]
This concern is misplaced.  Section 1
of the Structures Act defines “councillor” as being a
“member of a
municipal council”. The applicants correctly
point out that the determination of a quorum is thus dependent on the
number
of elected councillors not the total number of wards and
proportional representation seats on the council.  This is
reflected
in the council’s standing rules of order.  The
effect of declaring the seven seats involved in these by-elections
vacant
would be to reduce the number of elected councillors to 45.
A majority would then be 23 councillors, and there are 23 councillors

who are not members of the majority party.  Taken together with
the Speaker, who is obliged under section 37 of the Structures
Act to
convene quarterly meetings of the council and preside over such
meetings, there is a majority of elected councillors available
to
ensure that the council remains quorate even if the majority party
chose to boycott meetings.  Conversely, if the principal

minority party were to boycott meetings there would be sufficient
councillors from other parties to constitute a quorum.
[122]
But if either major party in the council
were to boycott its proceedings in order to prevent it from operating
that would be gravely
irresponsible.  We should not assume that
the governing party and the official opposition at national and most
other levels
of government in this country would behave in such a
fashion in Tlokwe.  Councillors are elected to undertake the
work of
the council on behalf of the whole citizenry.  Sometimes
the tides of politics will place one party in the majority and
sometimes
another.  But it remains the duty of all councillors
to facilitate and not obstruct the workings of the council.  For

councillors to continue to draw their salaries, while refusing to
attend meetings and seeking thereby to stultify the working of
a
council would be a breach of their obligations as councillors.
It is a breach of the Code of Conduct that binds all councillors
and
obliges them to attend all meetings of the council and of committees
of which they are members.
[89]
But the possibility that a political party would behave in that way
in response to an order by this Court cannot be a reason
for this
Court not to make an order that it regards as just and equitable.
The MEC’s suggestion that the operation
of the order should be
suspended, to enable councillors elected in by-elections that were
not free and fair to retain their seats
pending fresh by-elections,
would undermine the principle on which this judgment is based.
[123]
It is encouraging that the Speaker, herself
a member of the ANC, ascribes the problems at the end of 2012 and
2013 to “in-fighting
amongst the ANC Councillors”..  It
indicates that wiser heads now prevail.  She says that the
municipality is now
functioning successfully.  I assume that the
progress made in the interim would not be thrown overboard for short
term political
purposes.  Her suggestion that “Council
meetings will not sit . . . and thereby resulting in no resolution
being taken”
ascribes to her colleagues an approach that is
contrary to their statutory duties and irresponsible. This cannot be
a legitimate
reason for refusing to make the just and equitable order
that we are required to make.  The Speaker, of course, cannot
lawfully
be a party to such conduct or take any steps to prevent the
lawful meetings of the council from taking place, as it is her duty

to convene and chair those meetings.
[124]
The Speaker raises the fact that the
Municipal Demarcation Board is contemplating combining Tlokwe Local
Municipality with the Ventersdorp
Local Municipality, which is at
present in special measures. But, if that occurs, it will only be
after the 2016 elections.  She
also refers to proposals to
reconstitute some of the wards in Tlokwe.  But this process is
subject to objection and relates
to possible future events.  The
by-elections with which this Court is concerned took place on the
existing ward boundaries.
Any by-elections to be held pursuant
to our order must be held in respect of the wards with the boundaries
as they existed at that
time.
[125]
The supplementary submissions in response
to the Court’s directions have usefully focussed attention on
the key statutory
provisions that apply to the conduct of
by-elections.  The by-elections that must be held as a result of
this Court’s
order must accordingly be conducted in accordance
with those statutory provisions and this will be reflected in the
order.
Costs
[126]
The applicants have been compelled to
pursue their case to this Court in order to vindicate important
constitutional rights.
They should have their costs and it was
not suggested otherwise.  They asked for the costs of three
counsel, but there is
no warrant for that.  The costs of two
counsel is reasonable.
Order
[127]
The following order is made:
1.
Condonation for the late filing of the complete record is granted.
2.
The Electoral Commission is to pay the costs of the application for
condonation.
3.
Leave to appeal is granted to the first to seventh applicants and
refused in
respect of the eighth applicant.
4.
The appeal is upheld, with costs, including those consequent upon the
employment
of two counsel.
5.
The order of the Electoral Court delivered on 19 March 2015 is set
aside and
replaced by the following order:
(a)
It is declared that the by-elections conducted in the Tlokwe Local
Municipality on 12 September
2013 in ward 18 and on 10 December 2013
in wards 1, 4, 11, 12, 13 and 20, were not free and fair.
(b)
The outcome of those by-elections is set aside and fresh by-elections
are to be held in
terms of section 25 of the Local Government:
Municipal Structures Act 117 of 1998.
(c)
It is declared that when registering a voter to vote in a particular
voting district after
the date of this order the Electoral Commission
is obliged to obtain sufficient particularity of the voter’s
address to enable
it to ensure that the voter is at the time of
registration ordinarily resident in that voting district.
(d)
It is declared that in all future municipal elections or by elections
the Electoral
Commission is obliged in terms of
section 16(3)
of the
Electoral Act 73 of 1998
to provide all candidates in municipal
elections, on the date on which they are certified, with a copy of
the segment of the national
voters’ roll to be used in that
ward in that election including the addresses of all voters, where
these addresses are available.
(e)
The Electoral Commission is directed to pay the applicants’
costs, save for any additional
costs occasioned by the joinder of the
eighth applicant.
6.
The orders in 5(c) and (d) are prospective in their operation from
the date of
this order and do not affect the validity of any election
or by election held prior to the date of this order.
For the
Applicants:
J Roux, M Riley
and CL Markram instructed by the Moolman &
Pienaar Inc.
For the First
Respondent:      MTK Moerane SC and L Gcabashe
instructed by Gildenhuys Malatji Inc.
[1]
The respondent is widely known as the
“Independent Electoral Commission” (IEC), but correctly
described under the
relevant statutes as the Electoral Commission.
[2]
The preamble to the Constitution states that one
of its purposes is to “[l]ay the foundations for a democratic
and open
society in which government is based on the will of the
people”.
[3]
Section 1(d) of the Constitution.
[4]
Section 19 of the Bill of Rights.
[5]
Section 190(1)(a) of the Constitution.
[6]
Section 190(1)(b) of the Constitution.
[7]
Act 51 of 1996.
[8]
57 of 2000.
[9]
Promotion of Access to Information Act 4 of 2000
.
[10]
In terms of section 8 of the Municipal
Electoral
Act.
[11
]
The date on which the candidates were certified
as such.
[12]
As a result the requirements of
section 20(1)(b)
of the
Electoral Act 73 of 1998
were not satisfied.
[13]
The voting figures were as follows:
Ward
13:
Second applicant received 373
votes and the successful candidate
844.
Ward
20:
Third applicant received 346
votes and the successful candidate 543.
Ward
4:
Fourth applicant
received 450 votes and the successful candidate
1064.  The runner up polled 1022 votes.
Ward
12:
Fifth applicant received 106
votes and the successful candidate
1206.
Ward
1:
Sixth applicant
received 253 votes and the successful candidate
1144.
Ward
11:
Seventh applicant received
96 votes and the successful candidate
655.
[14]
Six boxes of registration forms for various wards
were delivered to him.
[15]
The adjusted margins of victory taking into
account the voters identified as not being entitled to registration
in these wards
fluctuated.  In ward 4 if their votes were
discounted and deducted from the total of the winning candidate the
victory margin
shrank to three, but, even if it extinguished the
victory margin entirely, that would not have helped the fourth
applicant, Ms
Johanna Shona Xaba, who came third.  It might
have assisted the runner-up from another party.
[16]
It was not suggested that these individuals were
not entitled to be registered as voters on the national common
voters’
roll.  The objection was confined to saying that
they were not entitled to be registered in these particular wards.
[17]
Rule 20
provides in relevant part as follows:
“
(1)
If leave to appeal is given in terms of
rule 19
, the appellant shall
note and prosecute the appeal as follows:
(a)
The appellant shall prepare and lodge the appeal record with the

Registrar within such time as may be fixed by the Chief Justice in
directions.
(b)
Subject to the provisions of subrule (1) (c) below, the appeal

record shall consist of the judgment of the court from which the
appeal is noted, together with all the documentation lodged
by the
parties in that court and all the evidence which may have been led
in the proceedings and which may be relevant to the
issues that are
to be determined.
(c)
(i)

The parties shall endeavour to reach agreement on what should be
included in the record and, in the absence of such agreement,
the
appellant shall apply to the Chief Justice for directions to be
given in regard to the compilation of the record.
. . .
(2)       (a)
One of the copies
of the record lodged with the Registrar shall be
certified as correct by the Registrar of the court appealed from.
(b)
Copies of the record shall be clearly typed on stout A4-size paper,

double-spaced in black record ink, on one side of the paper only.
(c)
Legible documents that were typed or printed in their original form

such as cheques and the like shall not be retyped and clear
photocopies on A4-size paper shall be provided instead.
(d)
The pages shall be numbered clearly and consecutively and every

tenth line on each page shall be numbered and the pagination used in
the court a quo shall be retained where possible.
(e)
Bulky records shall be divided into separate conveniently-sized

volumes of approximately 100 pages each.  The record shall be
securely bound in book format to withstand constant use and
shall be
so bound that upon being used will lie open without manual or other
restraint.
(f)
All records shall be securely bound in suitable covers disclosing

the case number, names of the parties, the volume number and the
numbers of the pages contained in that volume, the total number
of
volumes, the court a quo and the names of the attorneys of the
parties.
(g)
The binding required by this rule shall be sufficiently secure to

ensure the stability of the papers contained within the volume; and
where the record consists of more than one volume, the number
of
each volume and the number of the pages contained in a volume shall
appear on the upper third of the spine of the volume.”
[18]
S v Lawrence; S v Negal; S v Solberg
[1997] ZACC 11
;
1997 (4) SA 1176
(CC);
1997 (10) BCLR 1348
(CC) at
para 19.  That case dealt with the original
Rule 19(1)
but in
the relevant provisions its terms were the same as the present
Rule
20.
[19]
The relevant portions of Rule 8 of the Supreme
Court of Appeal Rules provides:
“
(6)
(a)           The
copies of the record shall
be clearly typed on stout A4 standard
paper in double-spacing in black record ink, on one side of the
paper only.
(b)
Legible documents that were typed or printed in the original,

including all process in the court a quo forming part of the record
on appeal, and documents such as typed or printed contracts
and
cheques (whether hand-written, typed or printed) and the like shall
not be retyped and a clear photocopy shall be provided
instead.
(c)
The pages shall be numbered clearly and consecutively, and every

tenth line on each page shall be numbered and the pagination used in
the court a quo shall be retained where possible.
(d)
(i)
At the top
of each page containing evidence, the name of the witness
and, at the top of each page containing exhibits, the number of the
exhibit, shall appear.
(ii)
All references in the record to page numbers of exhibits shall be
transposed to reflect the page numbers of such exhibits
in the
appeal record.
(e)
The record shall be divided into separate conveniently sized volumes

of approximately 100 pages each.
(f)
The record shall be securely bound in suitable covers disclosing—
(i)
the case number;
(ii)
the names of the parties;
(iii)
the volume number and the numbers of the pages contained in that
volume;
(iv)
the total number of volumes in the record;
(v)
the court appealed from; and
(vi)
the names and addresses of all the parties for service.
(g)
(i)
The volume number
and the numbers of the pages contained in a volume
shall also appear on the upper third of the spine of the volume.
(ii)
Each volume shall be so bound that upon being eased open it will
lie
open without any manual or other restraint and upon being so opened
and thereafter repeatedly closed, the binding shall not
fail.
(h)
The—
(i)
judgement and order appealed against;
(ii)
judgement and order granting leave to appeal; and
(iii)
notice of appeal, shall, if the record consists of more than one
volume,
be contained in a separate volume.
(i)
The record, in the first or in a separate volume, shall contain
a
correct and complete index of the evidence, documents and exhibits
in the case, the nature of the documents and exhibits being
briefly
stated therein.
(j)
Unless it is essential for the determination of the appeal
and the
parties agree thereto in writing, the record shall not contain—
(i)
argument and opening address;
(ii)
formal documents;
(iii)
discovery affidavits and the like;
(iv)
identical duplicates of any document; or
(v)
documents not proved or admitted, and the registrar shall mero motu

disallow the costs, also between attorney and own client, of such
documents.
(7)(a)
A core bundle of documents shall be prepared if to do so
is
appropriate to the appeal.
(b)
The core bundle shall consist of the material documents of the case

in a proper, preferably chronological, sequence.
(c)
Documents contained in the core bundle shall be omitted from the

record, but the record shall indicate where each such document is to
be found in the core bundle.
(8)(a)
Whenever the decision of an appeal is likely to hinge exclusively
on
a specific issue or issues of law and/or fact, the appellant shall,
within 10 days of the noting of the appeal, request the
respondent’s
consent to submit such issue or issues to the Court, failing which
the respondent shall, within 10 days thereafter,
make a similar
request to the appellant.
. . .
(9)(a)
Whenever the decision of an appeal is likely to hinge exclusively
on
part of the record in the court a quo, the appellant shall, within
10 days of the noting of the appeal, request the respondent’s

consent to omit the unnecessary parts from the record, failing which
the respondent shall, within 10 days thereafter, make a
similar
request to the appellant.”
[20]
Chevron SA (Pty) Limited v Wilson t/a Wilson’s
Transport and Others
[2015] ZACC 15
at
para 39.
[21]
August and Another v Electoral Commission and
Others
[1999] ZACC 3
;
1999 (3) SA 1
(CC);
1999 (4) BCLR 363
(CC) (
August
).
[22]
Id at para 17.
[23]
Section 190(1)(a) of the Constitution.
[24]
New National Party of South Africa v
Government of the Republic of South Africa and Others
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5) BCLR 489
(CC) (
New
National Party
) at para 12.
[25]
There is even a shift among international observers towards
abandoning the “free and fair” standard and to ask

instead whether the election is a legitimate expression of the will
of the people or properly reflects the wishes of the people.
In response to a question from the Swedish
Ministry of Foreign Affairs regarding this shift in the public
discourse over elections,
the ACE Electoral Knowledge Network said:
“
[A]
shift has indeed taken place in the discourse of terms used to
characterize the conduct of elections, and that consequently
there
are fewer references to elections as “free and fair”.
This shift was seen as a trend which began in the
1990s, when
elections that were described as “free and fair” at the
same time could be seen by analysts to lack integrity,
and it was
also predicted to become a more widespread trend in the future.
Moreover, one [Practitioners’ Network]
member expected that
the trend would go further as countries engage with new elections
related technologies.
Behind
the shift in discourse lies a rising awareness among analysts that
election observation should be less of a ‘thumbs
up/thumbs
down’ judgement on an election-day event, and increasingly an
effort to monitor and evaluate the process of an
election, against
international obligations voluntarily undertaken by countries.”
Information
available from the ACE website (15 February 2013), at
http://aceproject.org/electoral-advice/archive/questions/replies/54818966
.
The
ACE (Administration and Cost of Elections) Project was established
by IDEA (
International
Institute for Democracy and Electoral Assistance)
,
IFES (
International
Foundation for Electoral Systems)
and
UNDESA (
United
Nations Department for Economic and Social Affairs)
.
In 2006 the name was changed to the ACE Electoral Knowledge Network
(with the letters ACE no longer standing for Administration
and Cost
of Elections). ACE is a collaborative effort between nine
organisations: IDEA, EISA (
Electoral
Institute for Sustainable Democracy
),
Elections Canada, INE (the National Electoral Institute of Mexico),
IFES, The Carter Center, UNDESA, UNDP and the UNEAD (
United
Nations Electoral Assistance Division)
.
[26]
Bjornlund
Beyond
Free and Fair
(Woodrow Wilson Centre
Press, Washington DC 2004) at 94-128.  The most
comprehensive statement of the requirements
for free and fair
elections appears to be the Declaration on Criteria for Free and
Fair Elections (
Unanimously
adopted by the Inter-Parliamentary Council at its 154th session
(Paris, 26 March 1994)).  The Inter-Parliamentary
Council is
the international organisation of Parliaments established in 1899 to
foster parliamentary dialogue, work for global
peace and
co-operation and promote representative democracy.  Bjornlund
at 100-117 provides a
synoptic
analysis of various attempts to state the requirements that must be
satisfied for an election to be regarded as free
and fair.  Many
of these requirements are inconsistent and contested.
[27]
The Comte de Bussy-Rabutin (1618-1693) and
Marshall Henri Turenne (1611-1675) are both credited with the remark
that “God
is usually (or always) on the side of the big
battalions”.  See Cohen and Cohen
The
New Penguin Dictionary of Quotations
(
Viking, London
1992)
at 433.  The usual attribution is to Voltaire who wrote: “Dieu
n’est pas pour les gros batallions, mais
pour ceux qui tirent
le mieux”, which is translated in Knowles
Oxford
Dictionary of Quotations
6 ed (
OUP
,
Oxford 2004) at 816 as “God is on the side not of the heavy
battalions, but on the side of the best shots.”
[28]
Section 3(2) of the Municipal
Electoral Act. See
also
African Christian Democratic Party
v Electoral Commission and Others
[2006]
ZACC 1
;
2006 (3) SA 305
(CC);
2006 (5) BCLR 579
(CC) at para 15.
[29]
Section 18 of the Commission Act.
[30]
At the time Justice KK Mthiyane and now Justice
JBZ Shongwe.
[31]
Section 19(1) of the Commission Act.
[32]
R v Hugo
1926 AD
268
at 271 and
Arprint Ltd v Gerber
Goldschmidt Group SA (Pty) Ltd
1983
(1) SA 254
(A) at 261B-D.
[33]
Section 20(2) of the Commission Act.
[34]
See
Chirwa v
Transnet Ltd
[2007]
ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC) at paras 47-54
and 101-113 and
Gcaba v Minister of
Safety and Security
[2009] ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) (
Gcaba
)
at para 57.
[35]
Tikly v Johannes NO
1963
(2) SA 588
(T) at 590G-591A and
Road
Accident Fund v Duma & Three Similar Cases
[2012] ZASCA 169
;
2013
(6) SA 9
(SCA) at para 26.  Although the statutes in those
cases dealt with the appellate powers of the tribunal, the
delineation
of the various manifestations of that power is equally
applicable to an analysis of the nature of a general power of
review.
[36]
Section 20(2)(a) of the Commission Act.
[37]
Section 20(2)(b) of the Commission Act.
[38]
Schedule 2 to the
Electoral Act.
[39
]
Gcaba
above n 34
at para 75.
[40]
See also
Theron and
Another NNO v Loubser NO and Others
[2013] ZASCA 195
;
2014
(3) SA 323
(SCA) at para 26;
Transnet
Ltd v Rubenstein
[2005] ZASCA 60
;
2006
(1) SA 591
(SCA) at para 28 and;
Hart v
Pinetown Drive-in Cinema (Pty) Ltd
1972
(1) SA 464
(D) at 469C-E.
[41]
Section 12(2)(a) of the Commission Act.
[42]
In terms of
section 100
of the
Electoral Act
the
IEC made the Regulations Concerning
Registration of Voters, GN R 1340
GG
19388, 16 October 1998.
[43]
Section 20(1)(a)
of the
Electoral Act.
[44]
Section 64(1)(c) of the Municipal
Electoral Act.
[45
]
Sections 90 and 91 of the Municipal
Electoral
Act.
[46
]
Section 15
provides:
“
Objections
to voters’ roll—
(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.”
[47]
Section 15(2)
of the
Electoral Act.
>
[48]
Mr Kham’s objection in September 2013, on
the basis of erroneous registrations and the bussing in of voters,
was rejected
on the grounds that he failed to produce supporting
documents.
[49]
Section 15(3)
of the
Electoral Act.
[50
]
The formidable electoral capability of political
parties is apparent from the decision of this Court in
Democratic
Alliance v African National Congress and Another
[2015] ZACC 1
;
2015
(2) SA 232
(CC);
2
015
(3) BCLR 298
(CC)
, where a text message in
relation to a forthcoming election was sent to 1.6 million voters.
[51]
New National Party
above n 24 at para 11.
[52]
August
above n
21 at para 31.
[53]
Id at para 38.
[54]
In national elections, t
he
number of persons elected to represent each party is determined by
way of a calculation in which the number of votes cast for
each
party is divided by the number of seats in the National Assembly,
or the relevant Provincial Legislature, minus one
to determine the
voting quota (number of votes) that is required for the election of
one member.  The seats are then apportioned
accordingly, with
the last few seats being allocated in accordance with the fractions
of voters remaining to the credit of each
party after their full
number of seats allocated in accordance with voting quotas has been
ascertained.  See
section 57A
, read with Schedule 1A, of the
Electoral Act.  In
regard to the National Assembly, see items 5
and 6, and in respect of provincial legislatures, see item 13 of
Schedule 1A.
[55]
Item 2 in Schedule 1 to the
Local Government:
Municipal Structures Act 117 of 1998
.  Demarcation is
undertaken by the Demarcation Board established in terms of
section
2
of the Local Government: Municipal Demarcation Act 27 of 1998.
[56]
This is reinforced by regulation 11 (see above n
42). The regulation reads:
“
When
registering a person in terms of section 8(1) of the Act or when
recording a change of ordinary place of residence in terms
of
section 9(3) of the Act, or when changing the registration details
in terms of section 11(1) of the Act, the chief electoral
officer
must ensure that the voter concerned is registered in the voting
district in which he or she is ordinarily resident at
that time.”
[57]
New National Party
above n 24 at para 33.
[58]
Section 60(1)(c)
of the
Electoral Act.
[59
]
Appendix 1 to the Regulations Concerning the
Registration of Voters.  See above n 42.
[60]
Section 11(3) of the Municipal
Electoral Act.
[61
]
The outcome in the affected wards, according to
the IEC, would have been the following:
Ward
1:
The winning candidate’s
majority would have decreased from 891
to 795.
Ward
4:
The winning candidate’s
majority would have decreased from 42
to 3.
Ward
11:
The winning candidate’s
majority would have decreased from 559
to 553.
Ward
12:
The winning candidate’s
majority would have decreased from
1100 to 1093.
Ward
13:
The winning candidate’s
majority would have decreased from 283
to 34. The Second Applicant finished third in this by-election
behind the candidates from
the ANC and the Democratic Alliance.
Ward
18:
The winning candidate’s
majority would have decreased from 364
to 356.
Ward
20:
The winning candidate’s
majority would have decreased from 197
to 107.
[62]
Universal Declaration of Human Rights,
10
December 1948
.  See also article 25
of the International Covenant on Civil and Political Rights,
16
December 1966
, which reads:
“
Every
citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable

restrictions:
(a)
To take part in the conduct of public affairs, directly or through

freely chosen representatives;
(b)
To vote and to be elected at genuine periodic elections which shall

be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the

electors”.
[63]
Bjornlund above n 26 at 97.
[64]
Section 1(d) of the Constitution.
[65]
Section 190(1)(b) of the Constitution.
[66]
Case of Namat Aliyev v Azerbaijan
(Application
no 18705/06) at para 75.
[67]
Technically called a hendiadys (“one
through two”).
[68]
See
Sawer
Elections
Full, Free and Fair
(The Federation
Press, Sydney 2001) at 1 and 4.  She writes:
“
While
the right to vote is frequently commemorated, the freedom to vote
without intimidation or corruption and the abolition of
open
nomination and open voting is less often celebrated.  Yet the
elimination of violence and drunkenness prepared the
way not only
for fair elections but also the participation of what was called the
‘fair sex’”.
She continues on the
subject of “Elections before the Ballot” as follows:
“
It
is not only the right to vote, but the freedom to vote without
intimidation or corruption, that is such a significant, though
often
forgotten, part of our political history.  The violence,
drunkenness and bribery associated with elections before
the
introduction of the ballot are vividly portrayed by the English
painter William Hogarth in his series entitled ‘An
Election’
. . .  and depicts in grotesque detail the abuses
involved in all stages of the election, from
‘treating’
and canvassing through to polling and the declaration of the poll.”
[69]
The origin in its modern usage of
providing for fair competition appears to be a statement by John
Bolger, a lobbyist for the
Pennsylvania Bankers’ Association,
in which he said: “Our philosophy is that we have no problem
competing with the
mutual savings bank if they start from the level
playing field”.  It was carried in various newspapers,
for example,
Lebanon
Daily News
(5
January 1977) at 3.  Many playing fields, for example, the
famous Lords Cricket Ground are not level and have an identifiable

slope that affects the game.
[70]
Sawer above n 68 at 153.
[71]
Section 172(1)(a) of the Constitution.
[72]
Section 172(1)(b) of the Constitution.
[73]
Fose v
Minister
of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 97.
[74]
Rail Commuters Action Group v Transnet Ltd t/a
Metrorail
[2004] ZACC 20
;
2005
(2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at para 108.
[75]
Per Rothstein and Maldaver JJ in
Opitz v
Wrzesnewskyj
2012 SCC 55
;
[2013] 3 SCR
76
at para 87 (
Opitz
).
See to similar effect
Cusimano
v. Toronto (City)
2011
ONSC 7271
at para 63;
Gooch
v Hendrix
851
P 2d 1321
(Cal. Sup. Ct. 1993) (
Gooch
)
at 1327-8;
McEwing
v. Canada (Attorney General)
[2013] 4
FCR 63
;
2013 FC 525
at para 56.
[76]
Gooch
id at
1327.
[77]
Fair v Hernandez
(1981)
116
Cal. App. 3d 868
, 881 [
172
Cal. Rptr. 379
];
Gooch
id at 1327
[78]
As it is in other countries.
In
Marks v Stinson
[1994] USCA3 291
;
19 F 3d 873
(1994) at 887, a case involving a disputed election for
a seat in the Senate of the state of Pennsylvania, it was said:
“
The
integrity of the election process lies at the heart of any
republic.  The people, the ultimate source of governmental

power, delegate to their elected representatives the authority to
take measures which affect their welfare in a multitude of
important
ways.  When a representative exercises that authority under
circumstances where the electors have no assurance
that he or she
was the choice of the plurality of the electors, the legitimacy of
the governmental actions taken is suspect.
Accordingly, where there
is substantial wrongdoing in an election, the effects of which are
not capable of quantification but
which render the apparent result
an unreliable indicium of the will of the electorate, courts have
frequently declined to allow
the apparent winner to exercise the
delegated power.
. . .
For
the actions of a democratically elected body of representatives to
be legitimate, the electorate must be assured that each
of the
representatives was the choice of the electorate.”
See
also
Bell v Southwell
[1967] USCA5 307
;
376 F 2d 659
(5th Cir. 1967) where an
election, the integrity of which had been infected by poisonous
racial discrimination, was set aside,
despite the fact that the
evidence did not suggest that the outcome would have been any
different had the discrimination not
occurred.
[79]
Putter v Tighy
1949
(2) SA 400
(A) at 408 and
Gerdener v
Returning Officer and Another
1976 (2)
SA 663
(N) at 673H-677E.
[80]
Opitz
above n 75 at paras 71-73.
[81]
Abraham Lincoln in his Gettysburg Address on
Thursday, 19 November, 1863 commemorating the sacrifice of those
from both sides
who died at the Battle of Gettysburg during the
American Civil War.
See Shapiro
The
Yale Book of Quotations
(Yale
University Press
,
London 2006) at 463.
[82]
The margins varied between 15 and 20% of the
total number of votes cast.
[83]
The reason is explained by Professor
Huefner
“
Remedying
Election Wrongs” (2007) 44
Harvard
Journal on Legislation
265
at 295-96
in
a passage cited in
Opitz
above n 75 at para
48:
“
[A]
new election can never be run on a clean slate, but will always be
colored by the perceived outcome of the election it superseded.

New elections may also be an inconvenience for the voters, and
almost certainly will mean that a different set of voters, with

different information, will be deciding the election.
Moreover, there can be no guarantee that the new election will

itself be free from additional problems, including fraud.  In
the long term, rerunning elections might lead to disillusionment
or
apathy, even if in the short term they excite interest in the
particular contest.  Frequent new elections also would
undercut
democratic stability by calling into question the security and
efficiency of the voting mechanics.”
[84]
In
Cusimano
v. Toronto (City)
above n
75 at para 66, Dambrot J said that a by-election is an inexact
substitute for the election that is set aside.  The
judgment
proceeds at para 67-8:
“
A
by-election is an entirely different election from the one it
replaces.  The candidates may be different.  The issues

may be different.  The level of media attention may be
different.  The turnout may be different.  And the
electorate
will be different: some voters will have died; some will
have moved out of the ward and be entirely disenfranchised; some
will
have moved into the ward and may have already voted in another
ward on October 25, 2010.
I do
not intend to belittle the value of a by-election as a remedy when
there are irregularities in an election that violate the
principles
of the [Municipal Electoral Act 1966] or affect the results of an
election.  I simply say that a by-election
is second best and
cannot serve to lessen the significance of setting aside an election
or the caution that must be exercised
before doing so.”
[85]
Section 25(4) of the Structures Act.
[86]
Section 25(5) of the Structures Act.
[87]
Possibly by “a
commodius vicus
of recirculation”.
See the opening sentence of James Joyce
Finnegan’s Wake
.
[88]
The ANC currently has 29 members of whom seven would be unseated
leaving it with 22; the DA has 19; the Freedom Front has 1;
COPE has
1 and there are 2 independents.
[89]
Code of Conduct for Councillors, items 3 and 4 contained in Schedule
1 to the
Local Government: Municipal Systems Act 32 of 2000
.