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[2016] ZACC 15
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Electoral Commission v Mhlope and Others (CCT55/16) [2016] ZACC 15; 2016 (8) BCLR 987 (CC); 2016 (5) SA 1 (CC) (14 June 2016)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
55/16
In the matter
between:
ELECTORAL
COMMISSION
Applicant
and
AARON PASELA
MHLOPE
First Respondent
JOHANNA
XABA
Second Respondent
JOHN MATONG
SELEKE
Third Respondent
MAMOGADI ALETTA
MATLOU
Fourth Respondent
JOHANNES KGANG
RABOTSHO
Fifth Respondent
MAMOSEBI LENAH
MAHLATSI
Sixth Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT AND HUMAN
SETTLEMENTS, NORTH
WEST
Seventh Respondent
AFRICAN NATIONAL
CONGRESS
Eighth Respondent
DEMOCRATIC
ALLIANCE
Ninth Respondent
TSHEPO
CHEMPE
Tenth Respondent
TLOKWE LOCAL
MUNICIPALITY
Eleventh Respondent
MINISTER OF CO-OPERATIVE GOVERNANCE
AND TRADITIONAL
AFFAIRS
Twelfth Respondent
MINISTER OF HOME
AFFAIRS
Thirteenth Respondent
INKATHA FREEDOM
PARTY
Fourteenth Respondent
NATIONAL HOUSE OF
TRADITIONAL LEADERS
Fifteenth Respondent
Neutral citation:
Electoral Commission v Mhlope and Others
[2016]
ZACC 15
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron
J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J,
Nkabinde J and Zondo
J
Judgments:
Madlanga J (first): [1] to [102]
Mogoeng CJ (majority): [103] to [138]
Jafta J (minority): [139] to [211]
Heard on:
9 May 2016
Decided on:
14 June 2016
ORDER
On appeal from the
Electoral Court, and alternative access for direct access:
The following order is
made:
1.
The applications for condonation by the Electoral Commission, the
Minister of
Co-operative Governance and Traditional Affairs and the
Inkatha Freedom Party are granted.
2.
Leave to appeal is granted.
3.
The appeal is dismissed.
4.
The Electoral Commission is granted direct access.
5.
The Electoral Commission’s failure to record all available
voters’
addresses on the national common voters’ roll is
inconsistent with its rule of law obligations imposed by section 1(c)
of
the Constitution and invalid.
6.
The declaration of invalidity in paragraph 5 is suspended and:
6.1.
The duty of the Electoral Commission to record all the available
addresses of voters on the national
common voters’ roll for the
purpose of the August 2016 local government elections is, except for
the Tlokwe Local Municipality,
suspended.
6.2.
The Electoral Commission must by 30 June 2018 have obtained and
recorded on the national common
voters’ roll all addresses that
were reasonably available as at 17 December 2003.
7.
The order in paragraph 6 does not apply to local government
by elections.
8.
At six-monthly intervals calculated from the date of this order, the
Electoral
Commission must file a report with this Court, setting out:
8.1.
The number of outstanding post-December 2003 addresses it has since
obtained and recorded on
the national common voters’ roll;
8.2.
The number of post-December 2003 addresses still outstanding;
8.3.
The steps taken and to be taken to obtain outstanding post December
2003 addresses;
8.4.
Any other matter it may consider necessary to report on.
9.
The Electoral Commission must pay the costs of appeal and application
for direct
access of the independent candidates, the Democratic
Alliance and the Inkatha Freedom Party, including the costs of two
counsel.
JUDGMENT
MADLANGA J
(Khampepe J, Mhlantla J concurring):
Introduction
[1]
The right to vote and the right to
free, fair and regular elections form part of the bedrock of our
democracy. Universal adult
suffrage, a national common voters’
roll, and regular elections are recognised by our Constitution as
founding values;
[1]
and with good reason. Universal adult suffrage is essential to
democratic self-government: it guarantees every adult South
African
the right to vote, irrespective of race, gender, or status. Our
collective exercise of the right to vote determines
who governs us.
A related right, which is also important, is the right to stand for
public office and, if elected, to hold
office.
[2]
Key to the exercise of both rights is a national common voters’
roll.
[3]
It is this voters’ roll that is at the centre of these
proceedings. To be exact, the matter concerns the obligation
of
the Electoral Commission, commonly known as the Independent Electoral
Commission (IEC), to provide copies of the voters’
roll in
terms of section 16(3) of the Electoral Act.
[4]
[2]
The IEC is applying for leave to
appeal against an order made by the Electoral Court on 23
February 2016 postponing by-elections
that were scheduled to occur on
the following day, 24 February 2016, in Tlokwe Local Municipality
(Tlokwe). Those by elections
were to have been held in
terms of this Court’s order in
Kham
.
[5]
Should the appeal fail, the IEC seeks direct access to this Court,
and asks for certain relief pertaining to its obligation
to record
the addresses of registered voters.
[6]
[3]
It has joined as respondents: six
people who were to have been independent candidates in the Tlokwe
by-elections (independent candidates);
[7]
the Member of the Executive Council for Local Government and Human
Settlements, North West Province;
[8]
the African National Congress (ANC);
[9]
the Democratic Alliance (DA);
[10]
Mr Tshepo Chempe, another independent candidate who is apparently not
associated with the other six;
[11]
Tlokwe;
[12]
the Minister of Co-operative Governance and Traditional Affairs
(Minister);
[13]
and the Minister of Home Affairs.
[14]
Pursuant to applications by them, the Inkatha Freedom Party (IFP)
[15]
and National House of Traditional Leaders
[16]
were joined as the fourteenth and fifteenth respondents,
respectively.
[4]
The seventh, tenth, eleventh and
thirteenth respondents have not entered the fray before this Court.
Background
[5]
The present dispute stems from this
Court’s decision in
Kham
.
The applicants in that matter challenged the validity of the 2013
Tlokwe by-elections. The contest centred on the
fact that the
segment of the voters’ roll they had received from the IEC did
not reflect any voters’ addresses.
This Court delivered
judgment on 30 November 2015. It set aside the
by-elections and ordered that fresh by-elections
be held in terms of
section 25 of the Local Government: Municipal Structures Act
[17]
(Municipal Structures Act). Paragraphs 5(c) and 5(d) of the
order provided:
“
(c)
It is declared that when registering a voter to vote in a particular
voting district after the
date of this order the [IEC] 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 [IEC] is
obliged in terms of section 16(3) of the [Electoral Act]
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.”
[18]
[6]
Following
Kham
,
the IEC took various steps to implement the order and prepare for the
fresh by-elections. In the light of paragraph 5(c)
of the
order, the IEC trained its 52 000 electoral staff nationwide on
how to obtain sufficient particularity of voters’
addresses for
the purpose specified in paragraph 5(c) of the order. IEC staff
would now be required to obtain and record
an address whenever a
voter registered for the first time or re-registered in a new voting
district. Where no address existed,
IEC staff would obtain a
written affirmation from the voter to satisfy the IEC that
registration was in respect of the correct
voting district. The
IEC developed a new form
[19]
to complement the existing registration form, as well as a new
training manual for its electoral staff.
[7]
Alongside these efforts, the IEC
prepared for the fresh Tlokwe by-elections scheduled for 24 February
2016. Its investigation
had found that just over 1 000
people were registered in incorrect segments of the voters’
roll. It gave them
notice of its intention to remove them from
the affected segments. In the end, it removed 749 of them.
It identified
approximately 4 500 people whose addresses
potentially fell outside the voting districts in which they were
registered.
It sent out notices of intended removal. Of
these, it ultimately removed some 1 600 from the affected
segments of the
voters’ roll.
[8]
On 16 February 2016, eight days
before the Tlokwe by-elections that were to be held in terms of the
Kham
order, the independent candidates lodged an official complaint with
the IEC. The crux of their complaint was that, contrary
to
Kham
, the
voters’ roll omitted the physical addresses of 4 160
voters. On 18 February 2016, the IEC met with representatives
of the independent candidates. It explained that it understood
the effect of the
Kham
order to be prospective. In other words, it was obliged to
provide the addresses of voters who had registered or re-registered
after
the
date of that order, 30 November 2015. For voters who had
registered or re-registered before this date, the IEC was
only
obliged to provide addresses that were already recorded on its
system, as these were the only addresses “available”
to
it. It had no obligation to obtain addresses of which it had no
record.
[9]
Dissatisfied with this stance, the
independent candidates launched urgent proceedings in the Electoral
Court on 22 February 2016.
[10]
Before the Electoral Court, the
independent candidates argued that the only category of voters in
respect of which the IEC was not
obliged to provide “physical”
addresses was those whose addresses were not available. This –
they submitted
– was in accordance with paragraph 5(d) of the
order in
Kham
and section 16(3) of the Electoral Act.
[20]
In respect of all other voters, the IEC was obliged to provide
addresses. The substance of the argument was that the
omission
of the 4 160 addresses from the voters’ roll was an
impermissible irregularity.
[11]
In the main, the IEC’s
rejoinder was twofold. First, the order in
Kham
was purely prospective. Second, in respect of registrations and
re-registrations made before the amendment that introduced
section
16(3), the IEC did not always record or retain addresses.
Addresses that had not been recorded or retained were not
“available”; and – in terms of section 16(3) –
the IEC was not obliged to provide them.
[12]
The Electoral Court rejected both
arguments. On 23 February 2016, the day before the
by-elections, it issued an order setting
aside the IEC’s
certification of the voters’ roll, postponing the by-elections
for six weeks, and directing the IEC
“to provide all candidates
in the Tlokwe municipal by-elections with a copy or a segment of the
voters’ roll to be
used in their respective wards in the
municipal by-elections, including the addresses of all voters, where
these addresses are
available”.
[21]
In reasons delivered subsequent to its order,
[22]
that Court held that “[the IEC]’s stance would lead to
the anomaly that the Constitutional Court set aside by-elections
on
the basis of a flawed voters’ roll but that it would condone a
by-election based on the very same flaw which still existed
in the
voters’ roll”.
[23]
It is against the Electoral Court’s order referred to here that
the IEC now seeks to appeal.
[13]
Very crisply, the appeal concerns
the question whether the IEC is obliged to provide the 4 160
addresses, where available.
Strictly speaking that has nothing
to do with addresses that are not reflected on segments of the
voters’ roll that are applicable
outside of Tlokwe. But
the IEC has told us that countrywide the voters’ roll lacks a
total of 12 246 571 (12.2
million) addresses. And it makes
the point that, if its appeal does not succeed, it is equally obliged
to provide all 12.2
million addresses, where available, in respect of
the upcoming municipal elections to be held throughout the
country.
[24]
As will become clearer later, that is why the issues are much wider
than the crisp issue to which the appeal relates.
Issues
[14]
Here are the issues—
(a)
whether leave to appeal should be granted;
(b)
whether section 16(3) enjoins the IEC to provide addresses even in
respect of pre-December
2003 registrations;
(c)
the prospective nature of the
Kham
order;
(d)
the meaning of “available” in section 16(3) of the
Electoral Act;
(e)
whether section
16(3) of the Electoral Act
applies to municipal elections;
(f)
the basis for providing the voters’ roll to independent
candidates;
(g)
the true nature of the independent candidates’ cause of action
before the Electoral
Court;
(h)
if the appeal fails, whether direct access must be granted; and
(i)
whether there should be an
exception to the suspension of the obligation in relation to
addresses in regard to the Tlokwe elections.
With
the exception of the question of leave to appeal whose relevance is
obvious, how each arises will become apparent as I deal
with them in
turn.
Leave to appeal
[15]
As the introduction says, at the
heart of this application is the right to vote and stand for and hold
public office contained in
section 19 of the Constitution.
[25]
As I will show later, even section 190 of the Constitution bears
relevance to the issues to be determined.
[26]
These are constitutional issues of great import. Also, the
debate that follows demonstrates that the issues raised
by the IEC
are arguable and thus have reasonable prospects of success.
[27]
Leave to appeal must be granted.
Pre-December 2003
addresses
[16]
Section 16(3) and (4) of the
Electoral Act was introduced by section 5 of the Electoral Laws
Amendment Act,
[28]
which came into effect on 17 December 2003.
[29]
The IEC pointed out that these provisions were enacted pursuant to
repeated requests for voter addresses on the voters’
roll by
political parties. A question arises as to whether the
obligation – imposed by section 16(3) – to provide
a
voters’ roll which includes addresses of voters applies even in
respect of voters registered before December 2003.
To answer
this question, it is crucial to establish the purpose served by the
provision of addresses. The purpose is at least
two-pronged and
of great functional value. First,
a
voters’ roll with addresses facilitates visiting and canvassing
voters. In
Kham
Wallis AJ said that “[w]ithout voters’ addresses the
ability of candidates to canvass voters is significantly
impaired”.
[30]
The addresses increase efficiency and make canvassing cost-effective
as they assist in focussing campaigns only at registered
voters.
This is highly beneficial to contestants with modest resources to
fund their campaigns. This enhances the accessibility
of the
right to stand for public office.
[17]
Second, the inclusion of addresses
on the voters’ roll enables those contesting elections to
verify whether voters are registered
in the correct voting
districts. In peremptory terms, section 8(3) of the Electoral
Act provides that “[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”.
The importance of accurate registration cannot be overstated.
In
Kham
the Court explained:
“
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.”
[31]
[18]
Without addresses on the voters’
roll, the task of verifying registrations would be a lot more
difficult. And yet the
voters’ roll is not immune to
irregular registrations. The Tlokwe saga shows us as much.
And so do registrations
in Jozini, KwaZulu-Natal, which the IEC
admits had been fraudulently sought.
[32]
[19]
With this twin-purpose in mind,
surely then the availability of addresses on the voters’ roll
enhances the fairness of elections.
The absence of addresses
might – not will – result in elections being unfair.
The IEC argued that the lack of
addresses on the voters’ roll
does not bear relevance to the fairness of elections. The
argument went so far as to
say if it did, that would mean all
previous elections where the voters’ roll did not include
addresses were unfair. This
ignores one fundamental
distinction. It is one thing for the IEC to take all necessary
steps to exclude or minimise the possibility
of unfairness in
elections. It is quite another to say unfairness actually
eventuated as a result of a failure by the IEC
to take all necessary
steps. Section 190(1)(b) of the Constitution enjoins the
IEC to ensure that elections are free
and fair. If the IEC were
to fail to take precautionary measures where – looked at
objectively – that failure
might lead to elections being
unfair, it would be failing in its duty under section 190(1)(b).
It does not follow, however,
that just because there has been that
lapse, elections will necessarily be unfair. So, I cannot agree
with the IEC’s
argument. The fairness of all previous
elections where political parties and independent candidates were not
furnished with
voters’ addresses would have to be challenged
and the unfairness proved.
[33]
[20]
Returning to the question under
discussion: does section 16(3) require the IEC to provide even
addresses of voters who were registered
before December 2003?
It does. To suggest otherwise would defeat the very purpose of
furnishing addresses. It
would mean that all voters whose
registrations pre-date December 2003 and whose addresses were never
captured or retained on the
IEC’s database cannot be canvassed
in the direct and focussed manner referred to above. Nor can
the validity of their
registrations be verified with relative ease.
[21]
On a proper reading of section
16(3), the obligation to provide a voters’ roll with addresses
is ongoing. Ongoing in
the sense that each time political
parties and independent candidates require a voters’ roll with
addresses for election
purposes, the IEC must provide it in terms of
the section. It cannot be an answer that the addresses of
pre-December 2003
voters were never captured. The IEC must take
reasonable steps to get them in order to comply with the continuing
obligation.
That is a purposive answer that not only gives
meaning to the purpose of the obligation, but accords with the IEC’s
obligation
in terms of section 190(1)(b) of the Constitution.
This finds support in
Kham
where the Court said
even in the absence
of section 16(3)
, it would arguably be
wrong for the IEC to say it was under no obligation to do more than
it had done.
[34]
[22]
This interpretation of the
obligation is consonant with a wholesome exercise of the right in
section 19 of the Constitution.
And – in accordance with
section 39(2) of the Constitution – it must prevail.
[35]
An interpretation that requires the recording of even
pre-December 2003 addresses better protects the rights to vote
in,
[36]
and contest,
[37]
free and fair elections.
[38]
[23]
The subject under discussion is one
of the few issues on which Mogoeng CJ and I differ. I have had
the pleasure of reading
his punchy and succinct judgment (majority
judgment). I propose to deal with only some of the points on
which we diverge.
With regard to the rest, it will be apparent
from my judgment why we do not agree. I have also had the
privilege of reading
the judgment penned by my colleague, Jafta J.
There is some agreement between my colleagues’ judgments.
To the
extent that the judgments converge, my rejoinder to the
majority judgment also addresses the judgment of Jafta J.
[24]
Paragraph 6 of the majority judgment
suggests that the
Kham
order sheds light on the applicability of section 16(3) to
pre-December 2003 registrations. On my reading, nowhere does
Kham
purport to deal with this debate. There can be no question then
that its order could help resolve the debate one way or the
other.
On the contrary, paragraph 93 of
Kham
suggests the opposite.
[39]
[25]
In part, the majority judgment bases
its concerns about the imposition of the obligation to record
pre-December 2003 addresses on
policy-laden,
budgetary or polycentric considerations
.
[40]
This begs the question. If the correct interpretation of the
section is the one that I proffer, we would be perfectly
entitled to
assume that Parliament took all these concerns into account when
introducing section 16(3). So, this takes us
back to the
question: what then is the correct interpretation? And the
concerns expressed by the majority
judgment
cannot be of assistance in answering it. I think it is
dangerous to speculate about these concerns.
[26]
The majority
judgment
states – correctly – that
we
must base our determination of the IEC’s obligation in relation
to the voters’ roll on the real or stated purpose
as opposed to
our preference.
[41]
The majority
judgment has not suggested a
purpose that is at variance with the twin-purpose
of section 16(3) that I have proffered. The obligation
that I suggest
rests on the IEC accords with the purpose served by
the section; and this purpose is real, and not merely preferred.
And,
crucially, the majority judgment and I seem not to disagree on
the purpose.
[27]
According to the majority judgment,
the IEC argued persuasively that the circumstances surrounding the
introduction of section 16(3)
indicate that the section was intended
to apply thenceforth only.
[42]
I am aware of only one trigger which on the IEC’s
assertion – led to the introduction of section 16(3).
It
is that section 16(3) was enacted pursuant to requests by political
parties for a voters’ roll that includes addresses.
I am
aware of no other circumstances. If it be worth anything at all
in the interpretative process, that trigger actually
supports an
interpretation that the obligation imposed by section 16(3) does
apply to pre-December 2003 registrations. Let
us posit this.
Leading up to the 2004 national and provincial elections – and
post December 2003 – political
parties ask for a voters’
roll with addresses. Based on the information we have, the
likelihood is that the voters’
roll would be having very few
addresses, if any. A voters’ roll of that nature would be
totally useless for the twin purpose
that I have discussed
above. On the approach of the majority judgment, political
parties would have to be content with that
kind of roll. And
that situation would endure not only in respect of the 2004
elections, but for many more subsequent elections.
The
situation would improve gradually as new voters got registered and
some old ones re-registered. All the while, political
parties
and – in the case of municipal elections – independent
candidates as well would be saddled with a useless or
partially
useful voters’ roll, depending on the stage of gradual
improvement. That cannot be consonant with the object
of
section 16(3). It cannot be that political parties were meant
only ever to derive a real benefit from the section after
the voters’
roll had self-corrected, as it were; and that, after a considerable
length of time. As we now know, well
after a decade, there are
pre December 2003 addresses that are still outstanding.
[28]
I am not unmindful of the fact that
on the scenario I posit, it would most likely have been impossible
for the IEC to provide all
available addresses for the 2004
elections. This is so because by the time those elections were
held, section 16(3) had been
in operation for just under four
months.
[43]
That is a different issue altogether. It goes to the question
of availability of the addresses. On the meaning
that I give
“available” in section 16(3),
[44]
the IEC would have been able to escape the obligation to provide the
addresses for the 2004 elections on the basis that they were
not
reasonably available. This dispels the suggestion in the
majority judgment that my approach imposes
unbearable
or near-impossible obligations.
[45]
That said, the IEC had to obtain all
outstanding addresses within a reasonable time. And that time
is definitely not the 12
years that has since elapsed.
Otherwise the roll would continue not serving the section 16(3)
purpose. Why? Only
to afford the IEC the comfort of not
having to go back and obtain the addresses.
[29]
The presumption against
retrospectivity is rebuttable;
[46]
it is not a magic wand that must trump a discernible purpose of a
legislative instrument.
[47]
In the instant matter, the primacy of the presumption against
retrospectivity renders section 16(3) nugatory not only for
the
period immediately after 17 December 2003, but for a considerable
length of time thereafter. That cannot be. The
oft stated
rationale for the presumption is to avert the obliteration of
existing rights.
[48]
I should not be understood to say that the presumption applies only
in circumstances involving the extinguishing of rights.
But –
quite understandably – it is certainly in this context that it
is frequently called in aid. My interpretation
commends itself
because, rather than extinguish existing rights, it actually
vindicates the rights to vote and stand for office.
On the
other hand, the approach by the majority seeks to save the IEC from
what is seen as an unbearable or near impossible
obligation.
It is not about the rights of anybody. Surely, in that case
what appeal the applicability of the presumption
might have is
greatly attenuated. This is especially so because – as I
indicate in paragraphs 39 to 42 below
– the onerousness
of the obligation is significantly tempered by the reasonableness
standard on the meaning of “available”
in section 16(3).
[30]
Lastly, the majority judgment raises
a question that relates to what the situation should be if voters
with no addresses had registered
pre-December 2003 but now have
addresses. That question is whether the IEC has a continuing
obligation to enquire whether
these voters have since acquired
addresses in order to update the voters’ roll.
[49]
A number of other questions that flow from this are also asked
rhetorically. The clear implication is that the IEC
does not
have the obligation. In my view, this does not advance the
debate because the same questions may be raised about
the
post December 2003 addresses. If there isn’t an
obligation on the IEC to keep enquiring from all voters who
registered without addresses post-December 2003 whether they have
since acquired addresses, that should be true of pre-December
2003
registrations as well. And if the obligation is there, that
must be so in respect of both periods. If anything,
the
implication of the rhetorical questions is neutral insofar as the
debate at issue is concerned.
[31]
A related issue – and one that
bears direct relevance to the appeal – is the exact nature of
the prospective effect
of paragraphs 5(c) and (d) of the
Kham
order.
[50]
Prospective nature of
Kham order
[32]
Paragraph 6 of the
Kham
order says “[t]he 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”. This led to an argument before the
Electoral
Court – and now before us on appeal – that the IEC has no
obligation to provide addresses in respect of registrations
made
before the
Kham
order. If correct, the effect of this would have been that the
IEC had no obligation to provide those contesting the Tlokwe
by-elections with the missing 4 160 addresses.
[51]
The Electoral Court would have none of it and insisted on the
provision of the addresses, where available, hence its order
postponing the by elections of the following day, 24 February
2016. In persisting in the argument before us, the IEC
suggests
that the Electoral Court and independent candidates misinterpreted
paragraphs 5(c) and (d) of the
Kham
order.
[33]
On interpreting court orders,
authority tells us:
“
The
basic principles applicable to construing documents also apply to the
construction of a court’s judgment or order: the
court’s
intention is to be ascertained primarily from the language of the
judgment or order as construed according to the
usual, well-known
rules. . . . [A]s in the case of a document, the judgment or order
and the court’s reasons for giving it
must be read as a whole
in order to ascertain its intention. If, on such a reading, the
meaning of the judgment or order
is clear and unambiguous, no
extrinsic fact or evidence is admissible to contradict, vary,
qualify, or supplement it.”
[52]
This approach has
been endorsed by this Court.
[53]
Kriegler J in
Ex Parte Women’s
Legal Centre
added that the
interpretation of a court order “entails determining the legal
context in which the words in the order were
used”.
[54]
[34]
Reading it conjointly with paragraph
6 of the order, paragraph 5(c) relates to applications – post
the
Kham
order – by voters for re-registrations where they
have moved to different voting districts or for new registrations.
That – for me – is the textual and grammatical reading of
this part of the order.
[35]
All that paragraph 6 adds to
paragraph 5(d) is that the obligation to provide addresses does not
apply to past elections.
A pointer to this is that part of
paragraph 6 which says “and do not affect the validity of any
election or by-election held
prior to the date of this order”.
Crucially, a lot was wrong with the certified segments of the voters’
roll
that were to be utilised in the Tlokwe by-elections.
[55]
Those problems had to be corrected. Indeed, on the IEC’s
say so, a serious attempt was made in this regard.
[56]
After correction, the relevant segments of the voters’ roll
would have had to be certified yet again.
[57]
Needless to say, the certification could have taken place only after
the
Kham
order. And we know it took place on 28 January 2016, just under
two months after the order in
Kham
.
I see no reason in logic why the certification referred to in
paragraph 5(d) of the order should not include certification
of the
segments of the voters’ roll relevant to the Tlokwe
by-elections. Even in a prospective sense, that certification
took place after the order as envisaged in paragraph 6 of the order.
Likewise, the Tlokwe by-elections fell under the category
of “all
future municipal elections or by-elections” in respect of which
paragraph 5(d) of the order required the IEC
to provide addresses “in
terms of section 16(3)”.
[36]
Also, if – as this Court says
in
Ex Parte Women’s Legal
Centre
[58]
– the legal context in which an order was made may shed light
on its meaning, this interpretation of paragraph 5(d) read
with
paragraph 6 is consonant with the purpose of section 16(3).
[59]
The absence of addresses in respect of 4 160 voters would have
[60]
made it difficult for the contestants in the by-elections to canvass
the affected voters or verify the correctness of their registrations.
[37]
In sum, I cannot accept the IEC’s
argument on the question of the prospective nature of paragraphs 5(c)
and (d) of the
Kham
order. I agree with the Electoral Court that the IEC was to
provide all 4 160 addresses, where available.
[38]
This links with the next argument
raised by the IEC; and that is: “available” – as
envisaged in section 16(3)
– means no more than addresses that
the IEC had obtained and recorded on its database. If, for
whatever underlying
reason, the IEC does not have addresses on its
system, they are not “available”; and it has no
obligation to provide
them. I next deal with this.
Meaning of “available”
[39]
The question of availability of
addresses under section 16(3) must be approached sensibly. Contrary
to the IEC’s argument,
the criterion to determine availability
must be objective. And reasonableness, as in other spheres of
law, is that objective
criterion. It is flexible and context-
and fact-specific.
[40]
The parties are in agreement that
certain places where some voters reside defy description in the
“conventional” sense.
For example, this is the case
with most rural areas under traditional leaders where there will only
be the name of the rural
village with no street names, numbers or
other identifiers denoting individual homes. More accurately,
in some – if
not most – instances, there are no streets
at all. This is also true of some informal settlements in the
urban areas.
The best one can do to shed light on where one
lives would be to give the name of the rural village or informal
settlement and
a description referencing an identifiable landmark.
But in some instances there may be a sea of homes with no distinctive
landmark in close proximity. In that case, beyond the name of
the village or settlement, not even the description just referred
to
would be possible. For convenience, I refer to these two
categories as the first category. Examples of addresses
that
fall under what the parties call “conventional addresses”
would be something like: 22 Makhelwane Street, Ikhwezi
Township,
Mthatha; Lot 9000, Munro Avenue, Margate; or Ekuphumleni Farm,
Sterkspruit, District of Herschel
[61]
(second category).
[41]
The independents and the DA argue
that in respect of the second category, the IEC must provide all
addresses. And that it
is only in the case of the first
category that the addresses are not available for purposes of section
16(3). They take issue
with the IEC’s contention.
Subject to the reasonableness standard, I agree with them. It
must be in rare instances
that the IEC would have an acceptable
excuse for not capturing addresses that fall under the second
category. These are ordinarily
available. The IEC must
obtain, record and retain them. But one may well conceive of
situations where it would be unreasonable
to expect the IEC to have
recorded even addresses falling under the second category. An
example is where the IEC’s
entire database were to be lost due
to no fault of its own.
[62]
[42]
On the other hand, it may be
difficult if not impossible for it – despite reasonable efforts
– to obtain and record
addresses falling under the first
category. It makes sense that these addresses may be said not
to be reasonably available
for purposes of section 16(3). If
the IEC’s interpretation were to carry the day, any addresses
falling under the second
category that the IEC obtained but lost
through the negligence of its officials or discarded for fraudulent
reasons would never
get onto the voters’ roll. And the
IEC would then be able to say that those addresses were not
available. That
cannot be. This is not about casting
aspersions on the IEC. It is about interpretation.
Indeed, I am not aware
that the integrity of the IEC – as an
institution has ever been held to be wanting.
Does section 16(3) apply
to municipal elections?
[43]
Section 5(1) of the Municipal
Electoral Act makes the voters’ roll “compiled and
maintained in terms of the Electoral
Act” applicable to
municipal elections. Likewise, the Municipal Electoral Act
defines a voters’ roll as “the
national common voters’
roll compiled and maintained in terms of the Electoral Act”.
[44]
On a textual reading of section
16(3) of the Electoral Act,
[63]
addresses are part of the voters’ roll. The “which”
before “includes” refers back to “voters’
roll”. This suggests that a voters’ roll is
expected to have addresses as part of it. This is buttressed
by
the use of “with” in conjunction with “voters’
roll” in section 16(4).
[64]
This too tends to show that addresses are an integral part of the
voters’ roll. It is this type of voters’
roll (one
with available addresses), then, that is used in municipal elections
in terms of section 5(1) of the Municipal Electoral
Act.
[45]
In addition, the IEC conceded –
quite correctly – that section 16(1) applies to municipal
elections. Section 16(1)
provides that “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
”. There is no
reason why “segment” in this section – which
includes the municipal segment –
is not used in exactly the
same sense in section 16(3).
In
Ermelo
,
Moseneke DCJ explained that “there is ‘a reasonable
supposition, if not a presumption’ that ‘the same
words
in the same statute bear the same meaning’ throughout the
statute”.
[65]
[46]
The argument in the opposite
direction goes further and says the fact that section 16(3), in
terms, says a voters’ roll with
addresses must be provided to
registered political parties, with no mention of independent
candidates, is an indication that the
section does not apply to
municipal elections. This is an attractive argument; attractive
because in terms of our electoral
system, there are no independent
candidates in national and provincial elections. These
elections follow a party-list system.
[66]
We find independent candidates only in municipal elections. But
beyond attractive, the argument gains no traction.
Section 16(3) provides that the roll must be
provided to political parties contesting “elections”.
Section 1 of
the Electoral Act defines “election” as
including “an election of a municipal council or a by-election
for a
municipal council”. All definitions in the section
are subject to the context. I see nothing in the context in
which “elections” is used in section 16(3) and the
Electoral Act as a whole that would exclude municipal elections.
Independent candidates’
entitlement to voters’ roll with addresses
[47]
All that is established by the
discussion under the preceding heading is that it is the voters’
roll with addresses that is
used in municipal elections. That
does not answer the related but separate question whether and on what
basis that roll must
be made available to independent candidates
contesting municipal elections. Again, this has everything to
do with the fact
that section 16(3) says this voters’ roll must
be provided to political parties. We need not ponder this
question.
Kham
has answered it:
“
[S]ection
16(3) of the Electoral Act explicitly requires the IEC to provide a
voters’ roll with the addresses of voters to
all registered
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 unjustified 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.”
[67]
[48]
Section 16(4) gives the purpose of
providing a voters’ roll with addresses as “election
purposes”. This
underscores the unfairness to which
independent candidates would be exposed if they were denied a voters’
roll with addresses.
They would be denied an equal opportunity;
the opportunity to use it for the same purpose as candidates
contesting elections under
the banner of political parties.
Cause of action
[49]
The IEC submitted that the
independent candidates’ cause of action in the Electoral Court
was not what they argued before
us in the application for leave to
appeal. According to the IEC, the independent candidates
challenged the voters’
roll that was to be used in the Tlokwe
by-elections on the basis that it did not have addresses in respect
of 4 160 of the registered
voters. For that, they relied on
Kham
.
The IEC drew our attention to the fact that before the Electoral
Court it pleaded that the independent candidates’
reliance on
Kham
was
misplaced. And it did not address the point of substance
because – according to what we were told in oral argument
–
the IEC did not have time. The IEC also argued before us that,
in any event, the independent candidates’ complaint
before the
Electoral Court did not suggest that it was against only the failure
to provide second category addresses;
[68]
it was about the IEC’s alleged failure to provide all 4 160
addresses, whether available or not.
[50]
I see nothing wrong at all with how
the independent candidates’ case was pleaded. It was up
to the IEC to raise a defence
that some or all 4 160 addresses were
not available.
[51]
On my assessment, the independent
candidates’ cause of action was – in context –
about the issues debated above.
[69]
Because on all of them I reach conclusions that differ from the IEC’s
submissions, the appeal must fail. The
upshot of this is that
the IEC has acted unlawfully in that it provided a voters’ roll
on which there were no addresses against
4 160 registrations in
circumstances where some of those addresses may well have been
available.
[70]
Application for direct
access
[52]
At the time of oral argument, there
were approximately 12.2 million registered voters whose addresses
were either not captured at
all on the voters’ roll, or were
incomplete or recorded in vague terms.
[71]
The IEC explains that when the affected registrations were made, the
addresses were either not kept, or the forms on which
they were
recorded subsequently got lost or were destroyed.
[72]
[53]
The implication of paragraph 5(d) of
the
Kham
order and what we have held on the appeal now before us is that prior
to the upcoming municipal elections that are to take place
countrywide this year, the IEC must provide addresses, where
available, in respect of the 12.2 million registrations. It
is
not an option for it to remove any of these voters from the voters’
roll.
[73]
Once registered, it must be so – in terms of section 19 of the
Constitution and section 7(1) of the Municipal Electoral
Act –
that a voter has an untrammelled right to vote.
[74]
Now here is the problem. In terms of section 16(3) of the
Electoral Act, the 12.2 million addresses must be provided,
where
available. But the IEC says, it is practically impossible for
it to provide them in the available time. In law
– aside
from what has actually been proclaimed as the date of elections by
the Minister – the next municipal elections
had to take place
at the latest on 16 August 2016.
[75]
At the time of argument, that left the IEC with very little time to
get all available addresses in respect of the 12.2 million
registrations with missing addresses. It is that dilemma that
has forced the IEC to apply for direct access, effectively
seeking a
moratorium on its obligation to provide the addresses of voters
registered before
Kham
until
after
the 2019 provincial and national elections. It is also asking
for an order that it be directed to take steps to acquire the
addresses by no later than 30 June 2020.
[76]
It avers that the four years, which – on its calculation –
is conservative, is the minimum time required to source
and record
the addresses.
Parties’
contentions
[54]
The IEC says that in its experience
it requires at least 75 calendar days before an election to perform
the necessary tasks to ensure
its smooth running. Therefore,
the upcoming elections had to be proclaimed by the latest at the end
of May or in early June
this year. In terms of section 6(1) of
the Municipal Electoral Act, the voters’ roll would have to be
finalised by
that time;
[77]
by that date all available addresses would have to be part of the
voters’ roll.
[55]
The IEC tells us that this is an
impossible task. It points out that in terms of the legislative
scheme, for a voter’s
details – including his or her
address – to be altered, the voter must present her- or himself
in person before
the IEC.
[78]
The IEC claims that, in any event, it would be a difficult,
impractical, and unreliable task for it to contact affected voters
and update its records,
[79]
or to use the addresses from various governmental and private
databases to create a voters’ roll that is compliant with
section 16(3).
[80]
This is because it does not have the required addresses.
Moreover, the registration drives conducted by the IEC in
March and
April this year have been successful only to a limited extent in
obtaining the missing addresses
[81]
and were costly.
[82]
[56]
The one option which would readily
clean up the roll is, as I indicate, not legally available.
That is, simply removing the
voters with no addresses from the
voters’ roll. The IEC argues – correctly –
that this would amount to
a mass disenfranchisement. That, in
circumstances where the defect in the registration is not of the
affected voters’
own doing. At a pragmatic level, the
legal prescripts pertaining to the removal of voters from the voters’
roll would
render it impossible to remove all these voters in the
available time.
[83]
On the other hand, if the voters’ roll were to be
certified with the addresses of the 12.2 million voters not
reflected,
there might be Tlokwe-type challenges based on the lack of
those addresses.
[84]
[57]
The IEC then contends that the
relief sought will allow it an opportunity to right its wrongs and
collect the addresses through
an elaborate eight stage process that
is to last some four years.
[85]
That is how this will take us, not only beyond the upcoming municipal
elections, but also past the 2019 national and provincial
elections.
It argues that this eight stage process is the only possible
way for it to collect all 12.2 million addresses.
[58]
The IEC argues that it is open to us
to grant the relief it seeks in terms of the wide remedial power we
have in terms of section
172(1)(b) of the Constitution.
[86]
[59]
Some of the other parties before us
argue that the relief sought should be refused. And they come
up with a few proposals
on how to address the problem.
[60]
The independent candidates are
opposed to the idea of the upcoming municipal elections going ahead
without addresses in respect
of the 12.2 million voters. They
argue that a voters’ roll without addresses lacks transparency,
accountability and
integrity, and dispute the IEC’s averment
that it is practically impossible for it to obtain the addresses
timeously.
[61]
The independent candidates’
proposal on how to correct the defect amounts to this. The IEC
must – when finalising
the voters’ roll – remove
all the affected voters from the voters’ roll and then certify
it. The removed
voters should be placed on an uncertified roll.
On the date of elections, these voters may cast their ballots
in accordance
with the mechanism contained in section 7(2) and (3) of
the Municipal Electoral Act.
[87]
They argue that this will serve a dual purpose: allowing voters to
exercise their right to vote, whilst at the same time
the IEC will be
able to obtain and record the addresses received from the voters.
[62]
The IFP proposes a provisional
balloting system. The suggestion appears to be that the voters’
roll will be certified
containing the names of the 12.2 million
voters without addresses. On election day, the affected voters
will be required
to complete a voter registration form and cast a
provisional ballot. The voter will place the provisional ballot
in an unmarked
envelope, which will be sealed so as to be
tamper proof. The unmarked envelope will be placed inside
a larger envelope
upon which the voter’s name and identity
number will be written.
[88]
The larger envelope and its contents will be placed in a provisional
ballot box which, on my understanding of what the IFP
intended to
say, will then be sealed.
[89]
[63]
Immediately following the election,
the IEC must publish a list of the names of voters who cast
provisional ballots. Within
two weeks of the publication,
interested people must lodge objections to the counting of any of
those ballots.
[90]
Votes not objected to, or those in respect of which objections
will have failed, must be counted.
[64]
The IFP finds support for its
suggestion in a statute of the United States of America, the Help
America Vote Act.
[91]
Stated briefly, the provisions of this Act are to the effect that a
voter who believes her- or himself to be registered in
the
jurisdiction in which she or he desires to vote, but whose name does
not appear on the official list of eligible voters, may
cast a
provisional ballot. In order to do so, she or he must first
make a written affirmation before an election official
at the polling
place stating that she or he is registered in the jurisdiction in
which she or he desires to vote, and is also eligible
to vote in that
election. She or he then casts a provisional ballot. The
election official at the polling place must
then convey the ballot,
or the voter information contained in the written affirmation, to an
appropriate election official for
prompt verification. If the
latter election official determines that the individual is legally
eligible to vote, then the
ballot will be counted among the ordinary
votes in that election.
[65]
In their written submissions, the
independent candidates endorse the IFP’s proposal
enthusiastically and modify it.
[92]
[66]
The suggestions by the independent
candidates and IFP are tempting. But that is as far as they go.
Section 1 of the
Constitution provides:
“
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
. . .
(d)
Universal adult suffrage,
a national
common voters roll
, regular elections
and a multi-party system of democratic government, to ensure
accountability, responsiveness and openness.”
(Emphasis added.)
From this, we see
that our supreme law only contemplates the existence of one voters’
roll. The creation of two voters’
rolls – one
certified and the other not – cannot be reconciled with this
stipulation.
[67]
The removal of a voter from the
voters’ roll may be effected only in terms of a statutorily set
process.
[93]
That process gets its authority from the Constitution, which provides
that the IEC “must manage elections in accordance
. . . with
national legislation”.
[94]
The removal process suggested by the independent candidates is at
variance with the procedure contained in sections 11 and
12 of the
Electoral Act. Therefore, it is unlawful.
[68]
Another problem is that, because of
the lack of a legal basis to effect the removals in the manner
suggested, the removals would
be violative of the principle of
legality.
Fedsure
says of this principle, “the Legislature and Executive in every
sphere are constrained by the principle that they may exercise
no
power and perform no function beyond that conferred upon them by
law”.
[95]
And in
SARFU
,
this Court held that the principle of legality applies “to all
power exercised in terms of the Constitution”.
[96]
[69]
Absent proper compliance with the
removal process, a registered voter’s right to vote is
untrammelled. There can be
no basis to treat her or him
differently from other registered voters. The removal would be
even more outrageous in these
circumstances; that is, where it is as
a result of a lapse in the IEC’s conduct, and not the fault of
the voter.
[70]
The IFP’s proposal makes the
voter’s right conditional. The ballot will be counted on
condition that there is
no objection or an objection is resolved in
the voter’s favour. This is to happen to a voter who has
not even been
removed from the voters’ roll. Surely, in
this instance as well, the voter’s right to cast a ballot
should be
untrammelled and not subject to any condition. And
this too raises issues of legality. On what legal basis is a
voter
who is on the voters’ roll caused to vote subject to a
condition?
[71]
Rather than assist the IFP, the Help
America Vote Act underscores the difficulty it is facing. That
Act is the legal basis
on which the United States is able to conduct
elections in the manner stipulated in that Act. South Africa
has no statutory
equivalent.
[72]
At a factual level, the IEC has
highlighted some problems. The filling in of forms and other
details that will have to be
followed on election day in accordance
with the proposals by the independent candidates and the IFP are
likely to result in very
long queues. That – in turn –
may cause some voters to leave voting stations without voting.
Also, the
notice, objection and appeal processes
[97]
that are envisaged to take place will delay the finalisation of the
counting of ballots. That may affect the announcement
of the
results, which – subject to the possibility of extension –
must be done not later than one week after the date
of
elections.
[98]
The IEC also says the longer the delays after the election, the
greater the risk that the integrity of the separately kept
ballots
may be compromised.
[73]
It seems to me that there is some
merit in the IEC’s concerns.
[74]
The ANC, the Minister, and the
National House of Traditional Leaders support the application for
direct access. So does the
DA, but it suggests that the
moratorium should come to an end well ahead of the 2019 national and
provincial elections, and should
not apply to by elections.
Must direct access be
granted?
[75]
This Court is slow to grant direct
access. In
Bruce
Chaskalson P explained:
“
It
is . . . not ordinarily in the interests of justice for a court to
sit as a court of first and last instance, in which matters
are
decided without there being any possibility of appealing against the
decision given. Experience shows that decisions
are more likely
to be correct if more than one court has been required to consider
the issues raised. In such circumstances
the losing party has
an opportunity of challenging the reasoning on which the first
judgment is based, and of reconsidering and
refining arguments
previously raised in the light of such judgment.”
[99]
[76]
Direct access may be granted only
where the interests of justice permit. For this requirement to
be met, exceptional circumstances
must be demonstrated to the
Court.
[100]
In addition to the prospects of success, other factors in
establishing exceptional circumstances include: the nature of the
constitutional issues raised; the need for an urgent decision from
the Court;
[101]
whether the Court requires the views of lower courts,
[102]
and, relatedly, if it is desirable for it to sit as a court of first
and final instance;
[103]
whether similar issues are pending before the Court;
[104]
whether prejudice to the public good or good governance may
occur;
[105]
and whether the issue to be decided has a “grave bearing on the
soundness of our constitutional democracy”.
[106]
This does not purport to be a closed list. And the relevance
and relative weight of each factor will depend on the
circumstances
of each case.
[77]
In law, the elections have to take
place not later than 16 August 2016. Every second, every hour,
every day, the clock is
ticking for the IEC. There are certain
administrative tasks that must take place before the elections.
An approach
to another court at this late stage may make it
impossible for these administrative tasks to be performed in time for
the elections.
This is exacerbated by the possibility of an
appeal. An urgent resolution of this matter by this Court is
clamant.
[78]
At the centre of this dispute is the
important constitutional right to vote; so important that –
besides being enshrined in
the Bill of Rights
[107]
– it is also foreshadowed in the founding values of the
Constitution.
[108]
Axiomatically then, any delay in the finalisation of this application
that may imperil the upcoming municipal elections has
serious
implications for the exercise of this right. This is a weighty
consideration in favour of the grant of direct access.
[79]
As will appear shortly, prospects of
success are good.
[80]
All this leads to the conclusion
that direct access must be granted. What remains is whether the
IEC must be granted the moratorium
it is asking for; if so, for how
long.
What now?
[81]
Substantively, what we have to
grapple with is unique. The IEC – by its own doing –
faces a quintessential Catch-22.
At the time of argument, the
certification of the voters’ roll for purposes of the August
2016 municipal elections was imminent.
For purposes of
certification, the IEC had to either use a voters’ roll that
would be defective for containing names of voters
without
corresponding addresses, or remove those names from the roll without
following the due process of law; an inimical limitation
of the
affected voters’ right to vote. Because of time
constraints – and I accept its assertion in this regard
–
getting the missing addresses and including them on the voters’
roll in time for its certification had become impossible.
That
explains the approach to us to rescue it from this seemingly
intractable problem. At the risk of repetition, the
IEC wants
us to suspend the operation of section 16(3) of the Electoral Act.
Is that within our remit?
[82]
The relief sought is truly
extraordinary. Effectively, it is requesting this Court to
suspend an obligation imposed on it
by a statute. It is placing
reliance on the wide remedial power we have under section 172(1),
which reads:
“
When
deciding a constitutional matter within its power, a court—
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is
invalid to the extent of its inconsistency; and
(b)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity;
and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions,
to allow the competent authority to correct the
defect.”
[83]
The statement of the law in
Ermelo
to the effect that there does not have to be a declaration of
constitutional invalidity for a court to be able to exercise the
section 172(1)(b) power
[109]
spells out how expansive the remedy may be. Kriegler J held in
Fose
that
what constitutes an appropriate order is determined by the
facts.
[110]
The outer limits of a remedy are bounded only by considerations
of justice and equity. That indeed is very wide.
It may
come in different shapes and forms dictated by the many and varied
manifestations in respect of which the remedy may be
called for.
The odd instance may require a singularly creative remedy. In
that case, the court should be wary not to
self-censor.
Instead, it should do justice and afford an equitable remedy to those
before it as it is empowered to.
[84]
I have spelt out the difficult
position in which the IEC finds itself. Ordinarily, it would be
easy to dismiss its request
on the basis that the situation in which
it finds itself is of its own making. But the reality is that –
unlike litigation
between private individuals where a party’s
fault would affect it and it alone – here if something were to
go wrong,
the implications are serious and likely consequences dire.
To put it bluntly, the IEC would not be able to certify the voters’
roll for want of the 12.2 million addresses. Without a
certified voters’ roll, there can be no elections.
In
terms of section 159(2) of the Constitution it is obligatory that the
elections must take place, and must do so not later than
16 August
2016.
[111]
Indeed, the need for the regularity of elections in the
Constitution’s founding values
[112]
underscores the importance of this obligation. Unsurprisingly,
section 19(2) provides that “[e]very citizen has the
right to
free, fair and
regular
elections for any legislative body established in terms of the
Constitution”.
[113]
[85]
A threat of a possibility of the
elections not taking place is a threat to our democracy itself.
An order that does not extricate
the IEC from the impossible
situation it is in may create a constitutional crisis affecting the
rights to vote and stand for political
office protected by section 19
of the Bill of Rights. As we are also bound by the Bill of
Rights,
[114]
we must be careful – as far as possible – to prevent that
from happening. We cannot – in a Pilatian manner
–
throw our hands up in the air and say, “If the crisis happens,
so be it; the root cause is the IEC, not us”.
The reality
is facing us. What may we do, if anything?
[86]
During argument, the possibility of
a referral of the matter to Parliament to resolve it by, for example,
passing legislation that
may suspend the applicability of section
16(3) was raised. I see at least two problems with this.
First, Parliament
is not a party before us. One has no idea
what its reaction might be to an
expectation
that it should do something. The operative word is
“expectation”, not “order”, because I do not
see how – in these circumstances – we can make an order
against a non-party.
[115]
Second, it is just too late in the day to expect that
Parliament will enact that legislation in time for the conduct of the
elections within the constitutionally set deadline. This is
complicated by the fact that after Parliament, the legislation
will
have to be presented to the President for him to play his role in
terms of section 79 of the Constitution.
[116]
To my mind, the parliamentary route does not remove the looming risk.
[87]
All these circumstances cry out for
a remedy in terms of section 172(1)(b) of the Constitution. But
a moratorium on compliance
with section 16(3) of the Electoral Act
would effectively mean that we would be suspending an obligation
imposed by a statutory
provision whose validity is not in question.
Is there a basis for us to do that?
[88]
I take the view that the Electoral
Act, of which section 16(3) is a part, is legislation envisaged in
section 190(1)(a) of the Constitution.
This section provides
that “[t]he [IEC] must . . . manage elections of national,
provincial and municipal legislative bodies
in accordance with
national legislation”. Support for this view is to be
found in the long title of the Electoral Act.
It reads, “[t]o
regulate elections of the National Assembly, the provincial
legislatures and municipal councils”.
If there is this
connection between section 190(1)(a) of the Constitution and the
Electoral Act and thus section 16(3) as well,
section 16(3) and the
obligation it imposes should not be divorced from the Constitution.
[89]
This obligation links up with the
IEC’s obligation in terms of section 190(1)(b) of the
Constitution to ensure that elections
are free and fair.
[117]
Surely, the entire exercise of powers and
performance of functions by the IEC must be about the freeness and
fairness of elections.
That must be the focus of the
“management” of elections in terms of an Act passed
pursuant to section 190(1)(a).
Indeed, I think it would be fair
to say the IEC exists to deliver free and fair elections to South
Africa. So, one cannot
split the provisions of section
190(1)(a) and (b) of the Constitution and section 16(3) of the
Electoral Act. It is not surprising
that the Electoral
Commission Act, which must be legislation envisaged in section 190(2)
of the Constitution, provides –
in section 5(1)(b) –
that one of the functions of the IEC is to “ensure that any
election is free and fair”.
[90]
In that context, failure to comply
with an obligation imposed by section 16(3) translates to failure to
comply with section 190(1)(b)
of the Constitution. The
interconnectedness is such that section 16(3) cannot be dissociated
from section 190(1)(b).
Thus the problem of condoning
non-compliance with an extant statutory provision does not arise: for
purposes of a declaration of
constitutional invalidity in terms of
section 172(1)(b), section 16(3) should not be looked at separately
from section 190(1)(b)
of the Constitution. In short, one
should not be troubled by a separately existing extant statutory
provision imposing an
obligation all on its own.
[91]
Based on what I have said about the
purpose of section 16(3),
[118]
from which we are able to make a direct link between this section and
section 190(1)(b) of the Constitution, the IEC’s failure
to
record addresses on the voters’ roll is inconsistent with
section 190(1)(b) and section 1(d) of the Constitution and falls
to
be declared invalid. But to enable the IEC to conduct the
upcoming August elections, this declaration of invalidity obviously
has to be suspended.
[92]
Let me emphasise a point I made
earlier.
[119]
It is that elections do not of necessity become unfair purely because
there has not been compliance with each and every step
required under
section 190(1)(b). Unfairness would have to be proved.
Tlokwe exception
[93]
Does the fact that the independent
candidates have prevailed in the appeal mean that the omitted
addresses for the 4 160 voters
must be provided in Tlokwe?
There is a possible basis for answering this question in the
negative. The IEC was required
to provide the addresses in the
context of by-elections. It has become impractical for those
by-elections to take place.
The next local government elections
in Tlokwe will be part of the nationwide elections. In the
circumstances, it may
be argued that there is no reason why Tlokwe
should be treated any differently from other municipalities.
But the matter
is more complex than that. In
Kham
,
this Court ordered that by-elections should take place in Tlokwe
before the end of February 2016. They never did.
We
now know that was as a result of a failure by the IEC to provide the
4 160 addresses in accordance with the law. The effect
of this
conduct by the IEC is that an order of this Court was not complied
with. Even if the by-elections can no longer be
held, the
closest to compliance that this Court can now order is to require the
IEC to provide the 4 160 addresses, where available.
Of
importance, in
Kham
this Court ordered by-elections after it had found – as a
matter of fact – that there were irregularities with the
relevant segments of the Tlokwe voters’ roll.
[94]
What remains is whether the
moratorium requested by the IEC should be about four years.
The
time requested by the IEC is unduly long. It is true that we
have no measure for this. But we cannot ignore that,
with a
drive whose primary focus was registration, the IEC was able to
reduce outstanding addresses by four million within a period
of only
two weekends. I say “primary” because efforts were
also made to obtain outstanding addresses. With
a drive whose
focus is obtaining all addresses, I think the end point may be
reached earlier than the deadline suggested by the
IEC. That
end point must be a year earlier than the 2019 national and
provincial elections. The IEC cannot be allowed
to act at its
own pace when the predicament in which we find ourselves is of its
own making.
[95]
In order to avoid uncertainty and
difficulties of computation, a specific date must be fixed. A
point of reference for fixing
a date a year before the elections is
the date of the previous national and provincial elections.
They were held on 7 May 2014.
Instead of the exact
anniversary of those elections, I consider 30 June 2018 to
be a suitable date by which the IEC should
have finalised obtaining
and recording all 12.2 million addresses, where available. This
will allow the IEC an opportunity
to correct its blunder, whilst
affording all registered voters an opportunity to vote.
[96]
I see no reason why the moratorium
should apply to municipal by elections. By-elections
affect limited areas and fewer
voters. When vacancies occur in
municipal councils, the IEC must just find a way to allocate
resources – human, financial
and otherwise – to obtain
and record addresses in respect of segments of the voters’ roll
to be used in the by-elections.
[97]
Also, the moratorium is limited to
non-compliance with section 16(3). It does not preclude
challenges based on other electoral
irregularities. For
example, if some of the affected 12.2 million voters are registered
in areas other than the districts
in which they ordinarily reside,
this judgment is no bar to challenges that seek to prevent those
voters from voting.
[98]
I would be failing in my duty if I
did not express this Court’s displeasure at the IEC’s
continued failure to comply
with an obligation imposed on it by
Parliament for well over a decade. Of particular discomfort is
its nonchalant attitude
towards this obligation. Additionally,
our order in
Kham
was rendered ineffectual as a result of the IEC’s attitude to
its obligation under section 16(3). To ensure strict
compliance
with the timeframe set in paragraph 92 above, a supervisory order is
called for.
[120]
Our courts have issued supervisory orders in circumstances where, for
example, there is doubt that complete compliance with
a legal
obligation will be forthcoming.
[121]
[99]
An appropriate supervisory order
will be to compel the IEC to lodge with this Court an affidavit
six-monthly, detailing how many
addresses it has collected during the
period for which it is reporting, how many are still outstanding and
the steps to be taken
to obtain the outstanding addresses.
Condonation
[100]
The IEC filed the record late.
And the IFP’s written submissions and Minister’s
answering affidavit were out of
time. Satisfactory explanations
have been given for these lapses. In each instance, condonation
is granted. That
said, the frequency of condonation
applications continues to trouble this Court. Despite words of
caution in a few judgments,
[122]
it is not abating. Also, this Court will only be able to deal
with and determine urgent applications – which this one
was –
timeously if all papers, including written submissions, are filed on
time. The rather lackadaisical approach
by some litigants to
the filing of papers in this court is disturbing and will not be
countenanced.
Costs
[101]
The IEC conceded – correctly
in my view – that if its appeal fails, it must bear the costs
of all the parties that were
not supportive of its case, but not
those of parties like the ANC, Minister, and National House of
Traditional Leaders that supported
it. The appeal has failed.
Parties that stood at opposite ends from the IEC were the independent
candidates, the IFP,
and the DA. Although the IEC enjoys a
measure of success in the direct access application, we cannot lose
sight of the fact
that even that application was necessitated by the
IEC’s wrongdoing. And what it was asking for has been
significantly
curtailed. For example, it has been denied the
four year moratorium it was asking for. In addition, the
moratorium
is not to apply to municipal by-elections. To the
extent that the IEC enjoys some success, one may either say the
success
is not substantial or this case is more akin to those where a
party seeking an indulgence may have to bear the costs of a party
who
has been unsuccessful in resisting the grant of the indulgence.
[123]
Order
[102]
Had I commanded the majority, which
I don’t, I would have made the following order:
1.
The applications for condonation by the Electoral Commission, the
Minister of
Co operative Governance and Traditional Affairs and
the Inkatha Freedom Party are granted.
2.
Leave to appeal is granted.
3.
The appeal is dismissed.
4.
The Electoral Commission is granted direct access.
5.
The Electoral Commission’s failure to record all available
voters’ addresses
on the national common voters’ roll is
inconsistent with section 190 of the Constitution and invalid.
6.
The declaration of invalidity in paragraph 5 is suspended and:
6.1
The Electoral Commission is, except for the Tlokwe Local
Municipality, not required to record
all the available addresses of
voters on the voters’ roll for the purpose of the August 2016
local government elections.
6.2 The Electoral Commission must
have obtained and recorded on the national common voters’
roll
all addresses that are available by 30 June 2018.
7.
The order in paragraph 6 does not apply to local government
by elections.
8.
At six-monthly intervals calculated from the date of this order, the
Electoral
Commission must file a report with this Court, setting out—
8.1
the number of outstanding addresses it has since obtained and
recorded on the national common
voters’ roll;
8.2
the number of addresses still outstanding;
8.3
the steps taken and to be taken to obtain outstanding addresses; and
8.4
any other matter it may consider necessary to report on.
9.
The Electoral Commission must pay the costs of appeal and application
for direct
access of the independent candidates, the Democratic
Alliance and the Inkatha Freedom Party, including the costs of two
counsel.
MOGOENG CJ
(Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J and Zondo J
concurring):
Introduction
[103]
I read the first judgment by
Madlanga J with much appreciation, considering the extraordinary
speed with which it had to be produced,
because of the semi-urgency
of the matter. My deep appreciation also stems from the fact
that the remedy part of the judgment
is particularly challenging, yet
he addressed all the issues with commendable dexterity and persuasive
force. But, it is
in the sphere of remedy where our points of
difference lie. The difference lies not so much with the remedy
as it does with
the navigation of the way to that destination.
The extension of our order to the pre-2003 era and the bases for the
fate
of the
Kham
[124]
order are just as problematic. Apart from these few, yet
undoubtedly important, points of difference the judgment and proposed
order enjoys my support.
[104]
A reading of Jafta J’s
judgment was just as pleasurable. Sadly, we differ on what we
each consider to be the correct
meaning of “available” in
section 16(3) of the Electoral Act and, as with Madlanga J, on the
correct application of
section 172(1)(b) of the Constitution.
The 2003 amendment
[105]
Parliament introduced a new
requirement by amending the Electoral Act. That amendment came
into operation on 17 December 2003.
The part of it that is
relevant to these proceedings is section 16(3). It provides in
relevant part
“
.
. . 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.”
“
Available”
addresses within the context of this section does not mean
those that the IEC chooses to make available or
that happen to
have been recorded by the IEC and are thus available to be produced
together with the voters’ roll,
when it is required by those
contesting the elections. It is about much more than what the
IEC has in its records.
In sum, “available” means
“objectively available” or “reasonably available”.
This section
therefore requires the IEC to record all objectively or
reasonably available addresses in the voters’ roll. And
it
is significant that
there was no
requirement that the addresses of voters be recorded on the voters’
roll or be made available to any person or
political party before
this amendment. No problem or irregularity was pointed out in
relation to those voters whose addresses
were not recorded before
December 2003. Similarly, there is no suggestion that any of
the previous elections were not free
and fair because of the
non-recordal of those addresses.
[106]
And section 190(1)(b) of the
Constitution imposes an overarching mandate on the IEC to ensure that
our elections are free and fair.
The concept of the freeness
and fairness of the elections is an embodiment of much more than the
availability or otherwise of voters’
addresses. That is
why our elections have in the past been correctly declared to be free
and fair despite the fact that millions
of voters in villages and
informal settlements did not and still do not have recordable
addresses available. This concept
entails curbing intimidatory
and unacceptable conduct and language by political parties and their
supporters. It also extends
to building fire-walls against
election-rigging occasioned or facilitated by any lapse or sloppiness
on the part of the IEC or
violations of the electoral code of conduct
by candidates or political parties or indirectly by their proxies.
It is inappropriate
to base a declaration of constitutional
invalidity on the link between the possible absence of freeness and
fairness of the elections
and the failure to record voters’
addresses. To do so would have the unintended consequence of
overly magnifying the
value of and the role addresses play in an
electoral process. I do not think that section 190(1)(b) finds
application in
the determination of the invalidity of the IEC’s
conduct.
[107]
This Court considered the meaning of
section 16(3) in
Kham
.
The independent by-election candidates had not been provided with
copies of segments of the voters’ roll that contained
addresses
in compliance with section 16(3).
[125]
There the IEC had asked for guidance on its responsibilities.
[126]
In response, this Court granted the order which reads in part:
“
5.
The order of the Electoral Court delivered on 19 March 2015 is set
aside and replaced by
the following order:
. . .
(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.
.
. .
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.”
[108]
True, we were then grappling with
the electoral challenges relating only to Tlokwe. But these
particular portions of the order
are irreconcilable with the
proposition that this Court might well make an order in terms of
section 16(3)
that directs the IEC to record the pre-December 2003
addresses that are objectively available although they have not been
recorded
in the national common voters’ roll.
[109]
A reading of
section 16(3)
suggests
that Parliament identified a lacuna that required an amendment to
give political parties access to the voters’ addresses,
where
available. Availing voters’ addresses to political
parties upon request had until then not been a requirement.
All
that
section 8(3)
of the
Electoral Act had
always required of the IEC
to do was to ensure that voters were registered to vote only in the
correct voting district and not
in more than one voting
districts.
[127]
With the advent of
section 16(3)
it became obligatory that
future registration of voters include a recordal of the available
addresses in the national common voters’
roll. There is
in my view nothing about the ordinary grammatical language of
section
16(3)
, not even with its apparent purpose, to suggest that it applies
retrospectively. It is also not apparent why Parliament,
knowing that this was a new requirement, chose not to impose an
obligation on the IEC to record the available addresses of all the
voters including those registered before 17 December 2003. And
that choice might well be grounded on policy-laden, budgetary
or
polycentric considerations that courts are not privy to. It
would arguably be a bit adventurous to deduce what the unstipulated
bases and implications for introducing
section 16(3)
are. And
it is on the real or stated purpose as opposed to our preferred
[128]
purpose that we must base our determination of the IEC’s
obligations in relation to the voters’ roll.
[110]
It warrants repetition that there is
nothing in the provisions of
section 16(3)
or the
Kham
judgment to suggest that the IEC was, since December 2003, obliged to
go back to correct its registration records to include reasonably
or
objectively available addresses of voters. On the contrary, as
the IEC persuasively argued, the circumstances surrounding
the 2003
amendment indicate that they were intended to apply thenceforth only
and not to cast a shadow backwards, or create
obligations for
the IEC in relation to any voters who had already been registered.
[111]
This is in keeping with the
Kham
order. Paragraph 5(c) explicitly
says 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
”
.
It refers to new registration of voters, either for the first time or
when changing to another voting district, not to past
or existing
voter registrations. Paragraph 5(d) follows upon it by
addressing the particular issue that arose in
Kham
,
namely that no addresses were furnished to the applicants in that
case and directs that addresses be furnished in future municipal
elections. That all this is only prospective in nature is put
beyond doubt by paragraph 6 of the order. These paragraphs
were
aimed at the irregularities that surfaced in the Tlokwe
by-elections. And to cure those irregularities requires a
revisitation
and correction of the segment of the voters’ roll
that applies to Tlokwe.
[112]
With the benefit of hindsight and
proper reflection, the IEC now accepts that the 2003 amendment
obliged it to record the objectively
available addresses of voters on
registration. As explained in the first judgment
,
the IEC took various steps to implement the
Kham
order and prepare for fresh
by-elections in Tlokwe.
[129]
It trained its 52 000 electoral staff nationwide on how to
obtain voters’ addresses with sufficient particularity
for the
purpose specified in
section 16(3).
They are now required to
obtain and record the addresses of all first time voters or those
re-registering in a new voting
district. Where no address
objectively exists, the IEC staff will obtain a written affirmation
from the voter to ensure that
registration is in respect of the
correct voting district. A new registration form
[130]
has been developed as well as a new training manual for its electoral
staff to complement the existing one.
[113]
Although it is undoubtedly desirable
that every objectively available address be recorded on the national
common voters’ roll,
the decision to impose that obligation on
the IEC in respect of the pre-December 2003 voters is best left to
Parliament.
Separation of powers requires that courts should be
cautious not to intrude into the otherwise exclusive domain of other
arms of
the State unless it is constitutionally permissible to do
so.
[131]
This is not such a case. An order directing the IEC to do more
than what
section 16(3)
requires of it amounts to an unintended and
unjustifiable usurpation of Parliament’s legislative powers.
[114]
Besides, if section 190(1)(b) of the
Constitution could justifiably serve as the basis for imposing an
obligation on the IEC to
record addresses for the pre-December 2003
voters, then we would probably not need section 16(3).
[115]
A construction of section 16(3) in a
way that imposes an obligation to record pre-December 2003 addresses,
that are reasonably available
or when they become objectively
available, can only result from straining the language of section
16(3). And that obligation
would also introduce serious
challenges. A reasonable possibility exists that many people
who did not have addresses when
they first registered as voters
between 1994 and December 2003, now have them. Is there an
ongoing obligation on the
IEC to keep on inquiring from all voters,
registered before and after December 2003, whether they have since
acquired addresses
so as to comply with section 16(3) and update the
voters’ roll? If so, when then does that obligation to
have the addresses
recorded arise? In other words, when does
that obligation arise in relation to those who had no recordable
addresses at the
time of registration? Is it as soon as they
acquire addresses and their addresses thus become available?
And how will
the IEC know that to be the case? Or does the
IEC’s ongoing obligation require that it confines itself to
those addresses
that existed at the time of first registration but
were just not recorded? How will anybody, except the voter, be
able to
tell which address became available when? These
rhetorical questions are necessary to highlight the nature of the
problems
given rise to by an order obliging the IEC to update the
voters’ roll on an ongoing basis.
[116]
If this Court were to order the IEC
to record the pre-December 2003 addresses available as at the time of
registration, that could
easily throw our electoral process into a
crisis. Political parties and independent candidates could
easily challenge elections
on the basis that the voters’ roll
is defective since the addresses they know to be in existence have
not been recorded.
And this failure to record could easily have
resulted from the fact that, where addresses were previously
unavailable they have,
unbeknown to the IEC, subsequently become
available. This could either be because of the construction of
RDP houses
[132]
or the introduction of street names or house numbers, as it often
happens in villages and informal settlements. The IEC’s
failure to subsequently update the voters’ roll by checking
whether those who previously did not have now have addresses,
could
thus be problematic.
[117]
Courts ought not to impose
unbearable or near-impossible obligations on organs of State and
other institutions. To saddle
the IEC with the ongoing
obligation to update the voters’ roll, as opposed to alerting
it to the desirability and utility
of doing whatever it can to have
all objectively available addresses sourced and recorded, is a power
we do not have and a duty
probably too onerous for the IEC to bear.
Whether that obligation should rest on the IEC is a matter best left
to Parliament
to consider and determine. That said, the IEC
would do well to optionally have all the reasonably or objectively
available
addresses recorded, from time to time.
[118]
It is however always open to
political parties and independent candidates to provide the IEC with
addresses to help it update the
roll and ensure that voters are
registered in the correct voting district. The IEC cannot
refuse to update the roll in the
light of the guidance provided by
Kham
.
It will surely record addresses that have been brought to its
attention, obviously subject to verification.
Tlokwe
[119]
This Court made an order in
Kham
to the effect that the segment of the voters’ roll that applies
to the Tlokwe be cured of defects in preparation for the
by-elections
that were to be held before the end of February 2016. There is
no reason why that order was not and cannot be
complied with,
particularly because it was designed to prevent a recurrence of the
irregularities previously detected. An
order that is in line
with this approach, would also give meaning to the dismissal of the
IEC’s appeal against the order
of the Electoral Court.
That Court made an order that effectively required of the IEC to
compile a segment of the voters’
roll for Tlokwe that complies
with the
Kham
order.
It insisted on the recompilation of the relevant segment of the
voters’ roll so as to address known defects and
irregularities.
[120]
For this reason and in line with the
dictates of the rule of law, the IEC ought not to escape the
obligations imposed on it by this
Court in
Kham
for purposes of the August 2016
elections. It bears repetition that a segment of the national
common voters’ roll that
complies with the
Kham
order must thus be available for the
August 2016 elections in Tlokwe.
[121]
There is nothing to suggest that the
challenges and irregularities already identified in relation to the
electoral process in Tlokwe
cannot be corrected in time for the
August elections. The IEC’s only concern is that, if
Kham
applied throughout the country, then it would be impossible to update
the entire national common voters’ roll before the
August
elections are held. The
Kham
judgment and the dismissal of the IEC’s appeal against the
Electoral Court’s decision constitute sufficient exceptional
circumstances to justify the differentiation in our order between the
particular and the general. Both the
Kham
order and the Electoral Court order should stand and be given effect
to for the Tlokwe August elections.
Just and equitable order
[122]
The IEC now concedes that since 17
December 2003 it failed in its obligation to record addresses when
new voters were registered
or when voters sought to change voting
districts.
This failure to ensure
that the voters’ roll “includes the addresses of voters,
where such addresses are available”
constitutes unlawful
conduct that flows from the IEC’s breach of its section 16(3)
obligations. Meaning, the IEC compiled
a common voters’
roll in a manner that is at odds with the strictures not just of the
law but also of the rule of law.
[123]
The rule of law essentially requires
of the IEC to act only in accordance with the law. And section
1(c) of the Constitution
provides:
“
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
. . .
(c)
Supremacy of the Constitution and the rule of law.”
And
section 2 of the Constitution reads:
“
This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed
by it
must be fulfilled.”
[124]
Unlawful conduct in relation to the
compilation of the national common voters’ roll contemplated in
section 1(d) of the Constitution,
amounts to a breach of the rule of
law that is embedded in our Constitution by section 1(c), as the
nerve-centre of our constitutional
democracy. The IEC acted in
conflict with constitutionally compliant and unchallenged
legislation. In so doing it acted
inconsistently with the
constitutional prescript of legality and the rule of law, which was
necessarily imported to and rooted
in our Constitution in terms of
section 1(c).
[125]
Although a voters’ roll that
does not have addresses poses a potential threat to the fairness and
freeness of the elections,
that does not mean that elections held in
terms of that roll are without more, not free and fair.
[133]
Section 190(1)(b) of the Constitution cannot therefore be breached by
a distant hypothetical possibility, as correctly acknowledged
by the
first judgment. And it is necessary to add only that
Kham
is no authority for the proposition that the mere absence of
addresses, on its own, renders an election unfair.
[126]
Our Constitution limits the term of
Municipal Councils to no more than five years.
[134]
The term of the Municipal Councils now in office ends on 16 August
2016. It is undisputed that addresses of millions
of registered
voters were not entered into the national common voters’ roll
even after December 2003. We have no basis
to doubt the IEC’s
assertion that it would be impossible to update the voters’
roll before the August 2016 elections
are held. Even the
respondents conceded this and proposed alternative solutions.
[127]
That said, the Constitution does not
provide for the extension of this term of five years. Every
constitutionally permissible
solution must thus be explored to avert
a looming constitutional crisis that could result from the
unconstitutional elongation
of terms of office. Happily,
section 172(1)(b) of the Constitution promises that solution.
It provides:
“
(1)
When deciding a constitutional matter within its power, a court
. . .
(b)
may make any order that is just and equitable, including
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions,
to allow the competent authority to correct the
defect.”
[128]
The power to make a just and
equitable order is ordinarily to be preceded by a declaration that
conduct or law is inconsistent with
the Constitution and invalid.
That power is exercisable by a court “when deciding a
constitutional matter within its
power”. Retrospectivity
and the suspension of the declaration of invalidity flow from the
unconstitutionality of conduct
or law. And the power to allow
the competent authority time to correct the defect that is at the
heart of the declaration
of invalidity is dependent on satisfying the
above prerequisites.
[129]
When conduct is self-evidently
inconsistent with a constitutional provision, section 2 of the
Constitution, which reinforces its
supremacy, declares in unequivocal
terms that such conduct is invalid. A declaration of invalidity
is thus a consequence
of inconsistency of any conduct with our
supreme law. It is in this context that the unlawfulness of the
IEC’s conduct
in relation to the registration of voters and the
compilation of the national common voters’ roll must be
viewed. This
Court may not do anything to suggest, albeit
inadvertently, that conduct that is inconsistent with a
constitutional imperative
might at times be exempted from being so
declared, for fear of any future attempt to take unfair advantage of
an otherwise correctly-stated
principle. This Court is
well-empowered by section 173 of the Constitution to regulate its own
process “taking into
account the interests of justice.”
And that is how any illegitimate exploitation of the correct
exposition of our constitutional
jurisprudence would have to be dealt
with.
[130]
The rule of law is one of the
cornerstones of our constitutional democracy. And it is crucial
for the survival and vibrancy
of our democracy that the observance of
the rule of law be given the prominence it deserves in our
constitutional design.
To this end, no court should be loath to
declare conduct that either has no legal basis or constitutes a
disregard for the law,
as inconsistent with legality and the
foundational value of the rule of law. Courts are obliged to do
so. To shy away
from this duty would require a sound
jurisprudential basis. Since none exists in this matter, it is
only proper that we do
the inevitable.
[131]
The IEC admittedly failed to
appreciate the true meaning and import of
section 16(3)
of the
Electoral Act. Consequently
, it initially did not consider
itself obliged to and did not record the available addresses of
voters, as and when voters registered.
The result of the
current state of the voters’ roll is that the addresses of
millions of voters have, even after December
2003, not been recorded
on the voters’ roll. For this reason, the August 2016
local government elections will be held
on the basis of a defective
voters’ roll, since there is seemingly no time to cure the
defect before the elections are held.
Knowing that the
postponement of the elections would create a constitutional crisis
since they must be held no later than 16 August
2016, the remedial
powers in
section 172
thus need to be purposively and creatively
employed.
[132]
Section 172(1)(b)
clothes our courts
with remedial powers so extensive that they ought to be able to craft
an appropriate or just remedy even for
exceptional, complex or
apparently irresoluble situations. And the operative words in
this section are “an order that
is just and equitable”.
This means that whatever considerations of justice and equity point
to as the appropriate solution
for a particular problem, may
justifiably be used to remedy that problem. If justice and
equity would best be served or advanced
by that remedy, then it ought
to prevail as a constitutionally sanctioned order contemplated in
section 172(1)(b).
In this case a just and equitable order is
one that would pave the way for the August elections to be held
although our voters’
roll is the product of unlawful conduct.
Failure to do so, could indeed lead to constitutional crisis with
far-reaching implications.
[133]
The invalidation of the unlawful
conduct, which is essentially the production of the national common
voters’ roll that does
not comply with
section 16(3)
of the
Electoral Act, has
to be suspended. That suspension will allow
the IEC to proceed with the August 2016 elections and correct the
defective voters’
roll. The suspension of the declaration
of invalidity of the IEC’s unlawful conduct has the effect of
suspending the
duty imposed by
section 16(3)
on the IEC which if
carried out, there would have been no invalidity. The
non-compliance with
section 16(3)
is in terms of our just and
equitable remedial powers condoned and the duty imposed by
section
16(3)
is itself suspended for purposes of the August 2016 elections.
[134]
The declaration of the IEC’s
compilation of the national common voters’ roll as unlawful,
inconsistent with the Constitution
and therefore invalid, will be
suspended until 30 June 2018 which is 24 months and 15 days from the
date of judgment. This
suspension will allow the local
government elections scheduled for August 2016, to be proceeded with
notwithstanding the defects
in the national common voters’
roll. And the IEC will have the opportunity to update the
voters’ roll by capturing
reasonably available addresses during
the period of suspension. Come 2019, the national common
voters’ roll would have
to be free of defects for the purpose
of the national and provincial elections. This obligation
relates only to the post-December
2003 voter registration that should
have been conducted in keeping with section 16(3). Desirability
and utility will hopefully
nudge the IEC to also record the
objectively available addresses of all the pre December 2003
voters, while it prioritises
the post-December 2003 voters for
compliance.
[135]
By-elections are ordinarily limited
to very few districts in the country. And they do not always
take place at the same time.
This would thus afford the IEC the
opportunity to ensure that the segment of the voters’ roll that
applies to a particular
district is cleaned up of defects before its
by-elections are held any time before 30 June 2018, which is a
reasonable period
of suspension and cut-off date for the correction
of the defects in the national common voters’ roll. For
these reasons,
and those stated in the first judgment, all
by-elections to be held following the August 2016 local
government elections would
have to be based on an updated segment of
the voters’ roll for the affected voters’ district.
Order
[136]
The first judgment deals quite
extensively with the background. It also explains why
condonation for non-compliance with the
rules of this Court is to be
granted to the IEC, the Minister and the IFP. Reasons are
advanced for granting leave to appeal,
for dismissing the appeal and
for the success of the direct access application. We endorse
all of the above and the reasoning
in support thereof, save where it
is inconsistent with the substance of this judgment. Aspects of
the order to be made are
in part based on the above whereas others
are based on the reasons set out in this judgment. And the
latter relate broadly
to the bases for the declaration of
constitutional invalidity, the decision that the segment of the
voters’ roll that applies
to Tlokwe be compliant with section
16(3) and the
Kham
order for purposes of the August elections and the prospective
application of section 16(3).
[137]
It bears emphasis that this is an
exceptional case that cries out for an exceptional solution or remedy
to avoid a constitutional
crisis which could have grave
consequences. It is about the upper guardian of our
Constitution responding to its core mandate
by preserving the
integrity of our constitutional democracy. And that explains
the unique or extraordinary remedy we have
crafted, of suspending the
duty that flows from a constitutionally valid statutory provision.
[138]
In the result, the following order
is made:
1.
The applications for condonation by the Electoral Commission, the
Minister of
Co-operative Governance and Traditional Affairs and the
Inkatha Freedom Party are granted.
2.
Leave to appeal is granted.
3.
The appeal is dismissed.
4.
The Electoral Commission is granted direct access.
5.
The Electoral Commission’s failure to record all available
voters’
addresses on the national common voters’ roll is
inconsistent with its rule of law obligations imposed by section 1(c)
of
the Constitution and invalid.
6.
The declaration of invalidity in paragraph 5 is suspended and:
6.1.
The duty of the Electoral Commission to record all the available
addresses of voters on the national
common voters’ roll for the
purpose of the August 2016 local government elections is, except for
the Tlokwe Local Municipality,
suspended.
6.2.
The Electoral Commission must by 30 June 2018 have obtained and
recorded on the national common
voters’ roll all addresses that
were reasonably available as at 17 December 2003.
7.
The order in paragraph 6 does not apply to local government
by elections.
8.
At six-monthly intervals calculated from the date of this order, the
Electoral
Commission must file a report with this Court, setting out:
8.1.
The number of outstanding post-December 2003 addresses it has since
obtained and recorded on
the national common voters’ roll;
8.2.
The number of post-December 2003 addresses still outstanding;
8.3.
The steps taken and to be taken to obtain outstanding post December
2003 addresses;
8.4. Any other matter it may consider
necessary to report on.
9.
The Electoral Commission must pay the costs of appeal and application
for direct
access of the independent candidates, the Democratic
Alliance and the Inkatha Freedom Party, including the costs of two
counsel.
JAFTA J (Nkabinde J
concurring):
[139]
I have had the benefit of reading
the judgments prepared by my colleagues Madlanga J and Mogoeng CJ.
I agree that leave to
appeal must be granted and that the appeal must
be dismissed. I also accept that direct access should be
allowed but I do
not support the order proposed in relation to the
application for direct access.
[140]
As the first judgment correctly
points out this matter concerns political rights guaranteed by
section 19 of the Constitution.
It provides:
“
(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.”
[141]
Of importance to this case are the
following rights: the right to free, fair and regular elections for
legislative bodies established
by the Constitution; the right of
every adult citizen to vote in such elections and the right to stand
for public office.
[142]
These rights constitute a
cornerstone of our democratic order and are pivotal to the creation
and legitimacy of a government formed
after elections. Without
them democracy itself cannot exist. This is because they are
the lifeblood of a democratic
government and therefore a government
whose existence does not flow from the exercise of these rights
cannot be described as a
government of and by the people. It
cannot be said that such government is based on the will of the
people.
[143]
It is therefore not surprising that
our Constitution preserves these rights exclusively for citizens of
the country. While
the right to vote is enjoyed by every adult
citizen, the guarantee of free and fair elections is extended to
every citizen regardless
of age or active participation in voting.
That is, even disenfranchised citizens are entitled to demand that
elections be
free and fair. This is because, following an
election must be a government for all and not only those who voted
for the ruling
party.
[144]
In
New
National Party of South Africa
, this
Court affirmed the significance and interconnectedness between the
right to free and fair elections and the right to vote.
The
Court said:
“
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.”
[135]
[145]
In order to protect and promote the
rights we are concerned with here, the Constitution established the
Electoral Commission, formerly
known as the Independent Electoral
Commission.
[136]
The powers and functions of the Commission are set out in section 190
of the Constitution. It provides:
“
(1)
The Electoral Commission must—
(a)
manage elections of national, provincial and municipal legislative
bodies in accordance
with national legislation;
(b)
ensure that those elections are free and fair; and
(c)
declare the results of those elections within a period that must be
prescribed by
national legislation and that is as short as reasonably
possible.
(2)
The Electoral Commission has the additional powers and functions
prescribed by national
legislation.”
[146]
It is plain from a closer
examination of the text of this section that the Commission is
mandated to manage elections for all legislative
bodies in accordance
with national legislation. The Commission is also obliged to
ensure that those elections are free and
fair. In other words
the obligation to protect and advance the right to free and fair
elections falls squarely on the Commission’s
shoulders.
Having managed and ensured that the elections are free and fair, the
Commission must declare the results of those
elections within a
period prescribed by legislation.
[147]
It is also apparent from section 190
that additional powers and functions of the Commission are to be
found in relevant legislation.
The
Electoral Act is
legislation
that vests additional powers on the Commission and prescribes further
functions. For present purposes the relevant
function is
contained in
section 16(3)
of the
Electoral Act. It
reads:
“
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.”
[148]
As rightly pointed out in the other
judgments, this provision came into effect in December 2003. It
is couched in peremptory
language and obliges the Commission to
provide copies of the voters’ roll or its relevant segment
which must include addresses
of the voters where those addresses are
available. The duty to provide a voters’ roll containing
addresses arises on
every occasion the Commission is called upon to
furnish a voters’ roll. The Commission bore this duty
since December
2003. The fact that political parties did not
insist from that date that the voters’ roll furnished must
contain addresses
did not relieve the Commission of its obligation.
Purely as a matter of law, as from December 2003, whenever a request
for
the voters’ roll was made and the necessary fee was paid,
the Commission was duty-bound to provide a voters’ roll that
contained addresses, where the addresses were available.
[149]
In introducing this requirement,
Parliament was quite alive to the fact that before the amendment,
elections had been held in this
country and that there was a national
voters’ roll already in existence without addresses. The
duty to provide a voters’
roll with addresses was impossible to
fulfil in respect of voters who were already on the roll at the time
the amendment came into
force. Parliament was also aware of the
reality of circumstances prevailing in this country as a result of
the discriminatory
land use development which resulted in informal
settlements in both urban and rural areas. The lack of land use
planning
in those areas has resulted in the absence of residential
addresses commonly available in urban areas where there was proper
town
planning.
[150]
To ameliorate these challenges,
Parliament added a rider to
section 16(3).
It qualified the
obligation by adding that a voters’ roll with addresses must be
furnished if the addresses are available.
The term “available”
is not defined in the
Electoral Act and
therefore it must be accorded
its ordinary meaning. In terms of the Compact Oxford English
Dictionary “available”
means “able to be used,
obtained or free to do something”.
[151]
The word “available” is
also used in our Constitution. Both sections 26
[137]
and 27
[138]
of the Constitution impose a positive duty on the state to “take
reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation” of each
right. In
Soobramoney
[139]
Chaskalson P construed the words “within its available
resources” to mean resources at the disposal of the state for
the achievement of a progressive realisation of the rights in
question. In that case it was stated:
“
What
is apparent from these provisions is that the obligations imposed on
the state by sections 26 and 27 in regard to access to
housing,
health care, food, water and social security are dependent upon the
resources available for such purposes, and that the
corresponding
rights themselves are limited by reason of the lack of resources.
Given this lack of resources and the significant
demands on them that
have already been referred to, an unqualified obligation to meet
these needs would not presently be capable
of being fulfilled.”
[140]
[152]
The reading of both
Soobramoney
and
Grootboom
[141]
shows that “available resources” must
be taken to mean resources in the state’s possession and which
were earmarked
for realisation of the relevant rights. In
section 16(3) the words “available addresses” must be
assigned a similar
meaning, namely addresses in the Commission’s
possession.
[153]
With regard to the voters’
roll that was in existence when section 16(3) came into operation, it
would be impossible for the
Commission to provide a roll that
contains addresses if the addresses were not furnished to the
Commission upon registration or
were not kept by the Commission, as
this was not a requirement before December 2003. To overcome
this difficulty, section
16(3) requires the Commission to furnish
addresses that are available to it. An address would be
available if it was obtained
at the time of registration. In
this context available does not mean exist. To construe the
section as meaning that
the Commission is required to furnish
addresses where they exist would render the section unworkable.
The Commission could
not be expected to go to every corner of the
country to establish whether addresses of the 18 million voters,
who were already
on the roll when section 16(3) came into operation,
exist. Indeed that would have been an impossible task to
perform.
[154]
While section 16 applies only
prospectively, this does not mean that from the date of coming into
force, it did not cover addresses
of voters who were registered
before 17 December 2003. In other words, the reach of the
section is not limited to addresses
of voters who were registered
after the section came into operation only. The requirement for
including addresses in the
voters’ roll applies to all
addresses that are available to the Commission, regardless of whether
the voter was registered
before or after the section came into
effect. Indeed there can be no justification for the Commission
to refuse to include
an address available to it, even if the
registration preceded December 2003. What activates the duty,
is the availability
of the address at the time the request for the
voters’ roll is made in terms of section 16(3).
[155]
To construe the provision as not
requiring the Commission to supply addresses in respect of the
pre-December 2003 registration would
result in an unequal treatment
of voters in a matter that impacts on privacy. It would mean
that voters who were registered
after 17 December 2003 enjoy less
privacy than those who fortuitously were registered before that
date. This will be dissonant
with the values of the
Constitution.
[156]
What triggers the duty to supply
addresses is the request by a candidate contesting the elections.
And this request may be
made only when the elections are impending.
Compliance with every request of this sort made after section 16(3)
had come
into operation means that the Commission must include all
addresses available to it in the voters’ roll. The text
of
the section does not draw a distinction between addresses of
voters registered pre-December 2003 and those of voters registered
after December 2003. To interpret the section otherwise would
amount to reading into it new words. The distinction
between
these periods relates only to the obligation to supply addresses.
Before December 2003, the Commission was not bound
to include
addresses to the voters’ roll.
[157]
But as from December 2003, it is
implicit from section 16(3) that the Commission had the duty to
obtain addresses from prospective
voters at the time of registration,
regardless of whether it was a first time or repeat registration.
Obtaining those addresses
is an ancillary obligation to the duty to
provide addresses which is triggered when there is an impending
election. The requirement
that the Commission must obtain
addresses enables it to provide a voters’ roll with addresses
at the relevant time.
It is against this backdrop that both the
appeal and the application for direct access must be assessed.
The appeal
[158]
The proceedings that culminated in
the order against which the Commission seeks to appeal were a sequel
to the order granted by
this Court in
Kham
.
[142]
In that case judgment was delivered on 30 November 2015. An
order in the following terms was granted:
“
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.”
[159]
It is evident from this order that
the affected by-elections were set aside and that the Commission was
ordered to hold fresh elections.
The Commission scheduled those
elections for 24 February 2016. In addition the order
reaffirmed the duty created by
section 16(3)
by directing the
Commission when registering a voter to obtain her address to ensure
that the voter is registered in the voting
district in which she
resides. Notably, by this part of the order the Court sought to
achieve two objectives. First,
by ordering the Commission to
obtain addresses, the Court sought to facilitate the fulfilment of
the duty to provide a voters’
roll with addresses.
Second, the Court drew a link between that duty and the obligation to
ensure that a voter is registered
for voting in the district in which
she resides.
[160]
This was done even though
registration is not regulated by
section 16(3)
but
section 8.
[143]
The requirement that a person be registered only in the segment of
the voters’ roll for the district in which she resides
and for
no other voting district gives effect to section 157(5) of the
Constitution.
[144]
This section permits a person to vote in municipal elections only if
she is registered on a municipality’s segment
of the national
common voters’ roll. This means a person may only vote in
the municipality under which she was registered.
Section 8(3)
of the
Electoral Act uses
a person’s residence as a determining
factor for registration. It is the place where one resides
which determines the
municipality under which one may be registered.
[161]
Since, for practical reasons,
registration of voters occurs throughout the country and is done by
many employees of the Commission,
this Court in
Kham
deemed it necessary to declare that addresses obtained by the
Commission upon registration would also enable it to ensure that
a
voter is registered for the district in which they are ordinarily
resident. This would constitute objective proof of the
fact
that a voter is registered for voting in the correct voting
district. At present this proof is not available in respect
of
those voters whose addresses were not obtained. The facts of
this case bear this out.
[162]
Furthermore, the order in
Kham
also declared that in all future municipal elections or by-elections
the Commission is obliged in terms of
section 16(3)
to provide all
candidates in municipal elections with the relevant segment of the
voters’ roll which included addresses of
voters, where the
addresses are available. This part of the order plainly obliges
the Commission to furnish addresses together
with the voters’
roll for all future municipal elections and by-elections. This
requirement applied to the by-elections
which were scheduled for 24
February 2016 as much as it applies to the upcoming municipal
elections in August. The effect
of the order was that the
Commission was required to furnish political parties and other
candidates who participated in the February
by-elections with a
voters’ roll containing addresses, where those addresses were
available.
[163]
But the independent candidates were
provided with the relevant voters’ roll that omitted addresses
of 4 160 voters.
The independent candidates complained to the
Commission, asserting that the provided voters’ roll did not
comply with the
order of this Court to the extent that it required
the Commission to furnish them with a voters’ roll that had
addresses,
if addresses were available. The independent
candidates asserted that the voters’ roll furnished by the
Commission
suffered from irregularities.
[164]
The Commission responded by a letter
dated 19 February 2016 addressed to the independent candidates’
attorneys. In it
the Commission accepted that
Kham
ordered it to provide candidates in municipal elections and
by-elections with a voters’ roll containing addresses, where
those addresses were available. The Commission disputed that
the
Kham
order required it to verify those addresses. Because the letter
was central to the Commission’s defence before the
Electoral
Court, it is necessary to quote directly from it for a proper
evaluation of the reasons advanced for the omission of
addresses.
[165]
In relevant part the letter reads:
“
8.6
To the extent that the complaint in paragraph 4 of your letter
relates to the fact that, in respect
of some of the voters appearing
on the relevant segments of the voters’ roll for the affected
voting districts, no addresses
have been provided, we are instructed
that there are two reasons for such lack of addresses:
8.6.1
[S]ome voters were registered on the relevant segments of the voters’
roll prior to the judgment without
providing a conventional address.
In this regard, the judgment indicates in express terms that it
applies only prospectively,
with the result that, properly construed,
the requirement to obtain an address obtains only from the date of
the order. In
the result, those voters who were registered
prior to 30 November 2015 in the absence of a conventional
address having been
provided could not simply be removed from the
relevant segments of the voters’ roll; and
8.6.2
[S]ome voters were registered on the relevant segments of the voters’
roll after 30 November 2015
who were unable to provide a conventional
address. In such cases – to your clients’ knowledge
- the Commission
required such persons to complete a written
affirmation providing particulars of their respective places of
ordinary residence
sufficient to enable it to ensure that such voters
were at the time of registration ordinarily resident in the relevant
voting
district.” (Footnote omitted.)
[166]
With regard to the complaint that
some voters were irregularly registered in wards 4, 11, 12, 18 and 20
because they did not reside
in these wards, the Commission responded
thus:
“
8.10
To your clients’ knowledge, the Commission has done everything
in its power to comply with the Constitutional
Court’s order
regarding the elimination of persons being registered as voters on
segments of the voters’ roll for the
affected voting districts
in which they were not ordinarily resident. In this regard:
8.10.1
[A]s early as 15 December 2015, the Commission presented a 10 point
plan to the Tlokwe Municipal Party Liaison Committee
(“MPLC”),
of which your clients are part, regarding the envisaged correction of
the voters’ roll for the affected
voting districts;
8.10.2
The Commission sent notices to the 1 040 persons who had been
identified in its investigation in 2014 to have
been incorrectly
registered on the segments of the voters’ roll for the affected
voting districts notifying them of its intention
to remove their
names from those segments of the voters’ roll. Of these,
749 persons were removed from the affected
segments. 241 were
retained, while the identity numbers of 50 people were inadvertently
repeated on the list.”
[167]
Plainly what the Commission says
here is that, before the launch of the proceedings and following an
investigation undertaken in
2014, it identified that 1 040
voters had been registered for voting in districts other than those
in which they resided.
Consequently, the Commission sent them
notices that it intended to remove their names from the voters’
roll. Strangely,
and for unexplained reasons, the Commission
states that it removed 749 persons only from the roll and retained
241, while the identity
numbers of 50 people were inadvertently
repeated on the roll.
[168]
What is strange in the process
followed by the Commission is that it has stated that after an
investigation by it, the entire number
of 1 040 voters was
identified as having been registered for voting districts other than
those in which they resided.
This was a serious irregularity in
respect of a large number of people which occurred in one municipal
area. But what is
surprising is the fact that 241 voters were
retained on the voters’ roll despite the irregularity found by
the Commission.
It is difficult to appreciate how the
repetition of identity numbers justified the retention of 50 voters
on the roll. Much
worse no explanation was given for retaining
241 of such people.
[169]
As if this was not enough, the
Commission proceeded to state:
“
8.10.3
[I]n addition, the Commission compared the remaining addresses
furnished by voters whose names appeared on the segments of
the
voters’ roll for the affected voting districts against the
National Address Database (“NAD”) and identified
4 531
persons whose addresses possibly fell outside the voting districts in
which they were registered;
8.10.4
[O]n 22 December 2015, the Commission provided members of the MPLC
with a provisional voters’ roll for all the
persons whose names
appeared on the relevant segments of voters’ roll for the
affected voting districts, as well as separate
lists of the 4 531
persons identified for investigation after the NAD comparison, and
the 1 040 persons who had been
identified in its 2014
investigation. Equipped with this information, members of the
MPLC were requested to bring the names
of those persons who were
possibly incorrectly registered in the affected voting districts to
the attention of the Commission;
8.10.5
[A]fter a thorough investigation, 1 601 of the 4 531
persons were confirmed to be located outside of their
voting district
based on the addresses provided. Accordingly the Commission
sent notices to 1 601 persons notifying
them of its intention to
remove their names from those segments of the voters’ roll and
requested them to make representations
in respect thereof. Of
these, 1 599 persons were removed from the affected segments and
2 re-registered in their correct
voting districts.”
[170]
Again the Commission tells us that
after a thorough investigation it confirmed that of the 4 531
voters who were suspected
to have been irregularly registered, 1 601
were registered outside the voting districts in which they resided.
The Commission
notified them of its intention to remove their names
from the voters’ roll. Once more no explanation was
furnished
on how such a large number of people were irregularly
registered in respect of seven wards in one municipality. What
emerges
from the Commissioner’s letter though is that it relied
solely on the addresses obtained from the voters to confirm the
irregularity.
It is therefore difficult to appreciate how the
Commission could be confident that the 4 160 voters whose
addresses were not
provided to independent candidates, were not
likewise registered in districts other than those in which they
resided. The
facts show a propensity of registering large
numbers of persons for voting in districts other than those in which
they resided.
[171]
It was in light of these facts that
the Electoral Court made the following finding:
“
The
fact that the voters’ roll contained registered voters without
addresses was common cause. Counsel for the Commission
advised this
court that the Commission had commenced the ‘cleaning up’
of the voters’ roll but that the process
had not been
completed. This admission implies that there are indeed voters
on the roll, as it was before the Constitutional
Court, who should
not have been included therein.”
[145]
[172]
The Electoral Court proceeded to
declare:
“
It
has never been the Commission’s case that it could not ensure
that fraudulently registered voters could not be removed
from the
voters’ roll. On the contrary, counsel for the Commission
assured us that such a process was indeed underway in
Tlokwe. Nor was
disenfranchisement mooted in such cases.”
[146]
[173]
Consequently, the Electoral Court
issued an order in these terms:
“
1.
The Electoral Commission (first respondent) is ordered to request, as
contemplated by section
8 of the Local Government:
Municipal
Electoral Act 27 of 2000
, the Member of the Executive Council to
postpone the by elections to be held on 24 February 2016 in
Wards 1, 4, 11, 12, 18,
and 20 of the Tlokwe Municipality, North West
Province for a period of six weeks.
2.
The certification of the voters’ roll which is the subject
matter of this
case is set aside.
3.
The first respondent is ordered to provide all candidates in the
Tlokwe municipal
by-elections with a copy or a segment of the voters’
roll to be used in their respective wards in the municipal
by-elections,
including the addresses of all voters, where these
addresses are available.”
[174]
Before us the Commission sought to
challenge the order on the ground that the Electoral Court
misconstrued the order of this Court
in
Kham
.
The submission has no merit. On the Commission’s own
evidence, voters who were registered for voting in districts
other
than those in which they resided were retained. This was an
irregularity that affected the validity of the voters’
roll.
[175]
The guaranteed right to free and
fair elections requires that only those who qualify to vote in a
particular ward be allowed to
vote. Allowing persons who are
not entitled to vote in a specific ward to vote will not only breach
the right to free and
fair elections but also violates the right of
candidates to stand for public office, if one of them wins as a
result of votes cast
by persons who were not entitled to do so.
[176]
Expressing disapproval of the
Commission’s conduct in
Kham
this Court stated:
“
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.
”
[147]
[177]
What compounds the problem here is
the fact that voting districts are established by the Commission
itself. The voters are
also registered by it. Legislation
requires the Commission to enter a person’s name on the voters’
roll “only
for the voting district in which that person is
ordinarily resident and for no other voting district”.
[148]
It follows that the irregularities outlined here were committed.
The Commission’s failure to explain how 2 641
voters could
be registered for voting in wrong districts is indeed troubling.
This figure includes 1 040 and 1 601
voters whose names
were removed from the voters’ roll.
[178]
The Commission’s letter quoted
here reveals plainly that the Commission’s attitude was that it
was up to the independent
candidates to lodge objection in terms of
section 15
of the
Electoral Act. In
this regard the Commission
observed:
“
That
notwithstanding, your clients have not sought to raise any objections
to persons whose names appear on the relevant segments
of the voters’
roll for the affected voting districts until your letter, and they
now seek a response from the Commission
in respect of these allegedly
irregular registrations on a day’s notice.”
[179]
Having declined to take action, the
Commission informed the independent candidates that they had an
additional remedy to an objection.
It asserted:
“
8.15.
This does not mean that your clients are remediless:
8.15.1.
In terms of
section 51(1)
of the
Municipal Electoral Act, your
clients or their agents may, at any time before each of the persons
complained of have been handed a ballot paper, object to such
persons
being allowed to vote at the relevant voting station concerned.”
[180]
The stance adopted by the Commission
is inconsistent with section 190 of the Constitution. This
section imposes a duty on
the Commission, and on it alone, to ensure
that the elections are free and fair. The availability of a
statutory objection
to candidates participating in an election does
not relieve the Commission of its constitutional duty. When a
complaint of
irregularity was submitted to it, the Commission was
obliged to investigate it so as to ensure that the elections were
free and
fair. In view of its duty, the Commission could not be
supine and wait for an objection to be lodged.
[181]
It follows that the order issued by
the Electoral Court is unassailable and the appeal must be dismissed.
Direct access
[182]
The Commission sought relief under
direct access only if the appeal is dismissed. Since the appeal
fails, it is necessary
to determine the claim for direct access.
The Commission formulated its claim in these terms:
“
6. It
is declared that:
6.1
In conducting the 2016 local government elections and 2019 national
and provincial government
elections, the Electoral Commission is not
obliged to be in possession of addresses for those voters who have
been registered in
a particular voting district prior to
30 November 2015 and who do not seek re registration
in another voting district;
and
6.2
The Electoral Commission must take reasonable measures by
30 June 2020 to obtain
addresses for the voters referred to
in paragraph 6.1 above, save where such addresses are not available.”
[183]
The declaration sought has two
components. The first is to the effect that in conducting the
2016 municipal elections and
2019 national and provincial elections,
the Commission is not obliged to be in possession of addresses for
voters who were registered
before 30 November 2015. The cut-off
point of 30 November 2015 was informed by the Commission’s own,
but mistaken,
understanding of section 16(3). The Commission
held the view that before the order was granted in
Kham
,
it did not have the obligation to obtain addresses when it registered
voters so that it could discharge the obligation of providing
a
voters’ roll that included addresses.
[184]
In the affidavit deposed to by the
chief electoral officer and which was filed in the Electoral Court,
the Commission stated:
“
As
stated in paragraph 16 above, the Commission has no obligation to
verify the addresses of voters when they register.
After
30 November 2015 the Commission has an obligation when registering a
voter in a voting district to obtain sufficient particularity
of the
voter’s address to enable the Commission to ensure that the
voter is at the time of registration ordinarily resident
in that
voting district.”
[185]
This reveals serious flaws in how
the Commission had been conducting registration of voters since
December 2003 when
section 16(3)
of the
Electoral Act came
into
operation. The Commission failed to obtain addresses from
voters even where those addresses existed. Hence the
Commission
is now unable to provide a voters’ roll that includes
addresses. This was a breach of the statute.
Of course,
the Commission’s failure to obtain addresses in respect of
registrations that occurred before December 2003 does
not constitute
a violation of
section 16(3)
because the section did not apply
retrospectively. And before the coming into effect of the
provision, the Commission was
under no obligation to obtain addresses
and provide a voters’ roll that included addresses.
[186]
By asking this Court to declare that
when conducting this year’s municipal elections, the Commission
was not obliged to be
in possession of addresses for voters who were
registered before 30 November 2015, effectively the Commission
requests this Court
to suspend the operation of
section 16(3).
This, the Commission argues, may be done under the rubric of the
Court’s remedial powers contained in section 172(1)(b)
of
the Constitution.
[187]
I have reservations on whether
section 172(1)(b) confers on this Court the power to suspend the
operation of an Act of Parliament.
A number of reasons point in
the opposite direction. The section does not expressly say that
a court may suspend the operation
of a constitutionally compliant
statute. On the contrary, section 172(1)(a) says a court
may declare to be invalid a
law or conduct that is inconsistent with
the Constitution. The pre-condition for the declaration of
invalidity under this
section is the affected law’s
inconsistency with the Constitution.
[188]
In order to avoid disruptions and
dislocations in state administration, arising from the declaration of
invalidity, section 172(1)(b)
authorises a court to limit the
retrospective effect of the declaration of invalidity or even suspend
it. The effect of suspension
is that a law that has been
declared invalid continues to operate as if it was valid, during the
period of suspension.
[149]
[189]
But the difficulty here is that the
Commission does not impugn the validity of section 16(3). On
the contrary, it accepts
that the section is valid. The reality
of the matter is that it is the Commission’s failure to comply
with the section
which is invalid. It is its conduct which may
competently be declared invalid. However, to declare that the
Commission’s
conduct was invalid is not necessary because such
conduct is already regarded as invalid.
[190]
The Constitution confers the
judicial authority of the Republic on the courts.
[150]
This authority is exercised by our courts subject to the Constitution
and the law. The legislative authority vests
in Parliament,
provincial legislatures and municipal councils. The doctrine of
separation of powers precludes courts from
interfering with
legislative matters except where authorised to do so by the
Constitution.
[151]
Section 172(1)(b) does not expressly empower courts to suspend
the operation of an Act of Parliament. If the section
were to
be construed to be giving that power under the rubric of justice and
equity, it would mean that other courts from the Supreme Court
of Appeal to Magistrates’ Courts may suspend the operation of
an Act of Parliament and that suspension will not be subject
to
confirmation by this Court. This is because it is the
declaration of invalidity of an Act of Parliament, a provincial
Act
or conduct of the President which must be confirmed by this Court
before the declaration may have force and effect.
[191]
In any event, even if this Court
were to grant the relief sought and declare that the Commission was
not obliged to be in possession
of addresses where registrations were
effected before 30 November 2015, such declaration would not relieve
the Commission from
the relevant obligation, namely, providing a
voters’ roll that includes addresses.
[192]
Nor does a declaration of invalidity
directed at the Commission’s conduct solve the perceived
problem. Such declaration
would be to the effect that the
Commission’s failure to keep addresses in respect of
registrations that took place as from
December 2003 was
unlawful. The Commission has not asked that it be declared that
its failure to provide addresses in
respect of the upcoming municipal
elections will be invalid because on the present facts no request of
that sort has been made
and no failure has occurred.
Tlokwe
[193]
A failure to provide a voters’
roll with addresses has occurred in respect of the Tlokwe
by-elections only. And the
Electoral Court has already set
aside the certification of the voters’ roll that was provided
in respect of those by-elections.
The dismissal of the appeal
here means that that order remains in force. With regard to
Tlokwe, the Commission must now provide
a voters’ roll that
complies with the order of the Electoral Court.
[194]
The Commission cannot use the
voters’ roll, the certification of which was set aside.
It must certify the voters’
roll afresh and provide all
candidates with a segment of the voters’ roll that includes
addresses where the addresses are
available. The order of the
Electoral Court was based on these conclusions:
“
Having
regard to the aforegoing, this Court concluded that the proposed
by-elections of 24 February 2014, which would be based on
a flawed
voters’ roll, would lead to a flawed election.
Counsel
for the Commission submitted that the state of affairs is not due to
any fault of the Commission. I am of the view that
a flawed voters’
roll will result in an unfair by-election and that the fault argument
cannot overcome such a flaw.”
[152]
[195]
Underlying these conclusions were
the irregularities mentioned earlier. Those irregularities were
not limited to the failure
to furnish a voters’ roll that
contained addresses. They included a large number of voters who
were registered to vote
in voting districts in which they did not
reside.
[196]
In
New
National Party
of
South Africa
this Court proclaimed that
permitting persons who are not entitled to vote to do so impacts on
the right to free and fair elections.
There this Court said:
“
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.”
[153]
(Emphasis added.)
[197]
In light of the conclusions made by
the Electoral Court and its order, the Commission cannot be allowed
to use the “flawed
voters’ roll” for the upcoming
municipal elections in Tlokwe. Before that Court, the
Commission undertook to
remedy the defects in the voters’
roll. It did not argue that it was impossible to remove the
irregularities complained
of. It is therefore inconceivable
that this Court, having dismissed the appeal, may grant an order
which permits the Commission
to use a defective voters’ roll
which the Electoral Court has already held conclusively that its use
would result in unfair
elections. To do so would also be in
conflict with the order issued by this Court in
Kham
.
[198]
The order in
Kham
bears repeating. In relevant part
it reads:
“
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.”
[154]
[199]
The fact that this Court added that
this part of the order has a prospective operation, and does not
affect the validity of past
elections, changes nothing. The
order obliges the Commission to provide a voters’ roll,
including addresses in respect
of all elections held after 30
November 2015. But the condition that triggers the obligation
is the one that sits in
section 16(3)
itself. That is, the
Commission is obliged to furnish addresses where they are available.
[200]
On the construction preferred in
this judgment “available” means in possession of the
Commission. This interpretation
renders the declaration sought
unnecessary. The Commission concedes this point in its papers.
Apart from Tlokwe, there
is no evidence on the record showing that
the inability to furnish a voters’ roll with addresses in
respect of other municipalities
would render the elections to be held
in August not free and unfair. As this Court observed in
New
National Party of South Africa
, it is
not the mere presence of deviations which impacts on the fairness and
freeness of the elections but the “extent to
which these
deviations occur”.
[201]
This interpretation of
section 16(3)
is not only in line with the context in which the section was
introduced but is also consonant with section 39(2) of the
Constitution.
[155]
When section 16(3) was enacted Parliament was aware that a national
voters’ roll was already in existence and that
the roll did not
meet the requirements of section 16(3). Nor was the Commission
obliged to furnish candidates with a voters’
roll that included
addresses. In order to avoid a dislocation which the section
could have brought if from December 2003
the Commission was suddenly
required to provide a voters’ roll with all addresses,
including those of voters who were registered
before the section came
into force, a qualification was added to the section. It
requires the Commission to furnish only
addresses that are available
to it.
[202]
The condition applies irrespective
of whether a voter was registered before or after section 16(3) came
into effect. Take
for example a case where the Commission loses
records of the addresses in a fire that destroys its offices close to
conducting
elections. In that event it would be impossible for
the Commission to furnish addresses because they would no longer be
available
to it. The section cannot, in my view, be construed
as obliging the Commission to do the impossible, solely on the ground
that the affected voters were registered after December 2003.
[203]
Nor could a voters’ roll
provided without addresses be declared to be defective to the extent
of prohibiting its use at the
elections. An interpretation that
leads to the prohibition would impact adversely on the citizens’
right to vote in
circumstances where the fairness of the elections is
not affected. That approach to interpreting section 16(3)
would
be inconsistent with the constitutional principle of
interpretation that was introduced by section 39(2) of the
Constitution.
This principle obliges courts, when interpreting
legislation, to promote the spirit, purport and objects of the Bill
of Rights.
Courts achieve this objective by not only avoiding a
meaning that conflicts with the Bill of Rights but by adopting, where
it is
reasonably possible, a meaning that advances the rights in the
Bill of Rights.
[156]
This approach has been followed in countless decisions of this Court.
[204]
Here an interpretation that leads to
a prohibition described above would strike at the heart of the right
to vote and also the values
of universal adult suffrage and a
national common voters’ roll. In
Richter
this Court described the right to vote in these terms:
“
The
right to vote is symbolic of our citizenship, as Sachs J declared.
In entrenching the right of
every
citizen
to vote, section 19 of our
Constitution affirms that symbolic value. But the right to
vote, and its exercise, has a constitutional
importance in addition
to this symbolic value. The right to vote, and the exercise of
it, is a crucial working part of our
democracy. Without voters
who want to vote, who will take the trouble to register, and to stand
in queues, as millions patiently
and unforgettably did in April 1994,
democracy itself will be imperilled. Each vote strengthens and
invigorates our democracy.
In marking their ballots, citizens
remind those elected that their position is based on the will of the
people and will remain
subject to that will. The moment of
voting reminds us that both electors and the elected bear civic
responsibilities arising
out of our democratic Constitution and its
values. We should accordingly approach any case concerning the
right to vote mindful
of the bright, symbolic value of the right to
vote as well as the deep, democratic value that lies in a citizenry
conscious of
its civic responsibilities and willing to take the
trouble that exercising the right to vote entails.”
[157]
(Footnote omitted.)
[205]
If registered voters were to be
denied the opportunity to exercise the right to vote purely on the
basis that the Commission is
unable to furnish the segment of the
voters’ roll containing their names and addresses, our
democracy would be imperilled.
The affected voters would be
denied dignity and the message to them would be that their will does
not matter in the larger scheme
of laying down the foundation for the
formation of a democratic government.
[206]
This would be discordant with what
was proclaimed by this Court in
August
.
There this Court observed:
“
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. In a
country of great disparities of wealth and
power it declares that
whoever we are, whether rich or poor, exalted or disgraced, we all
belong to the same democratic South African
nation; that our
destinies are intertwined in a single interactive polity. Rights
may not be limited without justification
and legislation dealing with
the franchise must be interpreted in favour of enfranchisement rather
than disenfranchisement.”
[158]
(Footnote omitted.)
[207]
It follows that on the construction
preferred here, the inability of the Commission to provide a voters’
roll that contains
addresses will not affect the upcoming municipal
elections, except in respect of Tlokwe. Whether in a particular
ward the
elections will not be free and fair is an inquiry for
another day. That inquiry would require facts showing the
extent of
irregularities and their impact on the particular
elections. For a court may make a value judgment and declare
that elections
are not free and fair, based on the facts underpinning
that conclusion.
[208]
But the fact that municipal
elections will be held as scheduled in August does not mean that the
Commission should not obtain the
addresses it does not have in its
possession. The Commission is under a duty to do so, even in
respect of voters who were
registered before December 2003. The
functional value of those addresses is evident from the judgment of
this Court in
Kham
.
This Court stated that the addresses help candidates in identifying
voters to be canvassed. This is crucial for the
success of
candidates with no support of the machinery and resources of
political parties. In the order, this Court also
declared that
the addresses enable the Commission to ensure that voters are
registered to vote in districts where they are ordinarily
resident.
Indeed the Commission itself has told us that in Tlokwe 1 601
voters were found to have been registered in
incorrect districts,
through the application of addresses.
[209]
Without those addresses, the
Commission in many cases would be unable to tell if a voter resides
in the district for which she was
registered. It is simply not
enough for the Commission to merely say its staff is trained to
register voters on the roll
for districts in which they reside.
Tlokwe is a clear illustration of the fact that irregularities occur
and not on a small
scale. What happened in Tlokwe places some
degree of doubt over the Commission’s procedures pertaining to
registration
of voters. The scale of the irregularities
suggests that the problem may not be isolated. But without
concrete facts,
a conclusion cannot be made that those irregularities
were widespread throughout the length and breadth of the country.
[210]
However it is a matter of concern
that the Commission again failed to explain how the irregularities in
Tlokwe arose. This
concern was expressed in
Kham
.
One would have expected that if a plausible explanation existed, the
Commission would seize the opportunity here to mention
it. In
this regard the stance adopted by the Commission is regrettable.
It undermines its credibility in the eyes of
all parties concerned.
It will be difficult to accept that voters whose addresses are not
available, have been registered
in the correct districts simply on
the Commission’s mere say-so and without any objective facts to
back up the assertion.
Order
[211]
In the result I would grant leave to
appeal and direct access but dismiss both the appeal and the
application with costs.
For the Electoral
Commission: Trengove SC, J Bleazard and N Luthuli instructed by
Gildenhuys Malatji Inc
For the independent
candidates: A J H Bosman SC, L Van Gass and C J Bosman
instructed by Moolman & Pienaar Inc
For the African National
Congress: G Marcus SC and F Hobden instructed by Hogan Lovells (South
Africa) Inc
For the Democratic
Alliance: A Katz SC and K Pillay instructed by Minde Schapiro &
Smith Inc
For the Minister of
Co operative Governance and Traditional Affairs: M Sikhakhane
SC, A Hassim and B Lekokotla instructed
by the State Attorney
For the Inkatha
Freedom Party: K J Kemp SC, S Pudifin-Jones and I Veerasamy
instructed by Lourens De Klerk Attorneys
For the National House of
Traditional Leaders: B R Tokota SC and T Lupuwana instructed by the
State Attorney
[1]
This is contained in section 1 of the
Constitution, which is quoted in full at [66] below.
[2]
See below n 25.
[3]
Above n 1.
[4]
73 of 1998 (Electoral Act).
[5]
Kham and Others v Electoral Commission and
Another
[2015] ZACC 37
;
2016 (2) SA
338
(CC);
2016 (2) BCLR 157
(CC).
[6]
I say more about this relief later.
[7]
First to sixth respondents.
[8]
Seventh respondent.
[9]
Eighth respondent. It is a political party
registered in terms of
section 26(a)
of the
Electoral Act, holding
the majority in the National and Provincial legislatures and
governing the majority of municipalities throughout South Africa.
[10]
Ninth respondent. It is also a registered
political party, and the largest opposition party in Parliament, and
governs a
few municipalities in the country.
[11]
Tenth respondent.
[12]
Eleventh respondent.
[13]
Twelfth respondent.
[14]
Thirteenth respondent.
[15]
It is another registered political party with a
particular presence in KwaZulu Natal.
[16]
The National House of Traditional Leaders is an
institution established pursuant to section 212 of the Constitution
to deal with
matters relating to customary law and traditional
leadership.
[17]
117 of 1998.
[18]
Kham
above n 5
at para 127. The full order reads:
“
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.”
[19]
This is called the REC AS Form which, when
completed by an aspirant voter, is the written affirmation
describing in detail their
place of residence.
[20]
Section 16(3)
provides:
“
[T]he
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.”
[21]
Mhlophe and Others v Independent Electoral
Commission of South Africa and Others
[2016] ZAEC 1 (
Mhlope
)
at para 1, quoting para 3 of the order.
[22]
The reasons were handed down on 10 March 2016.
[23]
Mhlope
above n
21 at para 19.
[24]
I say more about these elections later.
[25]
Section 19(3)
states:
“
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.”
[26]
Section 190 states:
“
(1)
The [IEC] must—
(a)
manage elections of national, provincial and municipal legislative
bodies in accordance with national legislation;
(b)
ensure that those elections are free and fair; and
(c)
declare the results of those elections within a period that must
be
prescribed by national legislation and that is as short as
reasonably possible.
(2)
The [IEC] has the additional powers and functions prescribed by
national legislation.”
[27]
Compare
SATAWU and
Another v Garvas and Others
[2012]
ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8) BCLR 840
(CC) at para 33.
[28]
34 of 2003.
[29]
Proc R78 GG 25860 of 17 December 2003.
References to “pre-December 2003” and “post-December
2003”
in this judgment refer to pre- and post-17 December
2003.
[30]
Kham
above n 5
at para 77. The full quote is:
“
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 whom they will
want to contact and persuade to give
them their votes?”
[31]
Id at para 63.
[32]
This is by no means a suggestion of fraud on the
part of the IEC. The admitted fraud appears to have been
committed by those
who sought and obtained the registrations.
[33]
In
Kham
above n 5 at para 94, the Court left open the question whether, “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.” I do not
read paragraph 6 of the order in that
matter to pronounce – one way or the other – on the
validity of previous elections.
[34]
Kham
above n 5
at para 93. There the Court was addressing the late delivery
of the relevant segments of the voters’ roll
and the absence
of addresses.
[35]
Section 39(2) of the Constitution provides:
“
When
interpreting any legislation . . ., every court, tribunal or forum
must promote the spirit, purport and objects of the Bill
of Rights.”
In
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC);
2000 (10) BCLR 1079
(CC), Langa DP said at para 21:
“
[Section
39(2)] means that all statutes must be interpreted through the prism
of the Bill of Rights.”
[36]
Section 19(3)(a) of the Constitution.
[37]
Section 19(3)(b) of the Constitution.
[38]
Section 19(2) of the Constitution.
[39]
That paragraph is dealt with at [21] above.
[40]
Majority judgment at [109].
[41]
Id.
[42]
Majority judgment at [110]. I have
paraphrased this to relate only to the subject of the debate, and
not the 2003 amendments
as a whole.
[43]
Those elections were held on 14 April 2004.
[44]
See [39] to [42] below.
[45]
Majority judgment at [117].
[46]
At [109], the majority judgment says:
“
There
is in my view nothing about the ordinary grammatical language of
section 16(3), not even with its apparent purpose, to suggest
that
it applies retrospectively.”
[47]
See
Workmen’s
Compensation Commissioner v Jooste
[1997] ZASCA 58
;
1997 (4) SA 418
(SCA) at 424G-H where the Court
held:
“
The
presumption against retrospectivity arising from this rule may be
rebutted, either expressly or by necessary implication,
by
provisions or indications to the contrary in the enactment under
consideration.”
[48]
See
Curtis v
Johannesburg Municipality
1906 TS 308
where Innes CJ held at 311:
“
The
general rule is that, in the absence of express provision to the
contrary, statutes should be considered as affecting future
matters
only; and more especially that they should if possible be so
interpreted as not to take away rights actually vested at
the time
of their promulgation. . . . [T]he courts will not find that
[Parliament] intended so inequitable a result as the destruction
of
existing rights unless forced to do so by language so clear as to
admit of no other conclusion.”
This was referred to with
approval by Mokgoro J in
Veldman v Director of Public
Prosecutions, Witwatersrand Local Division
[2005] ZACC 22
;
2007
(3) SA 210
(CC);
2007 (9) BCLR 929
(CC) at para 26, where she added:
That
legislation will affect only future matters and not take away
existing rights is basic to notions of fairness and justice
which
are integral to the rule of law, a foundational principle of our
Constitution.”
[49]
Majority judgment at [115].
[50]
These paragraphs are quoted at [5] above.
[51]
About these addresses, see [8] above.
[52]
Firestone South Africa (Pty) Ltd v Genticuro
A.G.
1977 (4) SA 298
(A) at 304 D-F.
See also
Finishing Touch 163 (Pty) Ltd
v BHP Billiton Energy Coal South Africa Ltd and Others
[2012] ZASCA 49
;
2013 (2) SA 204
(SCA) at para 13.
[53]
See
Eke v Parsons
[2015] ZACC 30
;
2016 (3) SA 37
(CC);
2015 (11) BCLR 1319
(CC) at
para 29.
[54]
Ex Parte Women’s Legal Centre: In re
Moise v Greater Germiston Transitional Local Council
[2001] ZACC 2
[2001] ZACC 21
; ;
2001 (4) SA 1288
(CC);
2001 (8) BCLR 765
(CC)
(
Ex Parte Women’s Legal Centre
)
at para 11.
[55]
Kham
above n 5
at paras 68-72.
[56]
See [6] to [7] above.
[57]
Section 6 of the Local Government: Municipal
Electoral Act 27 of 2000 (Municipal Electoral Act) provides:
“
(2)
By not later than a date stated in the timetable for an election,
the chief
electoral officer must—
(a)
certify the segments of the voters’ roll for the voting
districts to be used in the election.”
[58]
Ex Parte Women’s Legal Centre
above
n 54.
[59]
See [16] to [19] above.
[60]
I say “would have” because the
parties now accept that it has become practically impossible to hold
the Tlokwe by-elections.
[61]
These are fictional examples.
[62]
I make no holding as to the legal position if the
loss of the database were due to the IEC’s own fault.
[63]
See above n 20.
[64]
Section 16(4) provides:
“
The
voters’ roll with addresses referred to in subsection (3) may
only be used by political parties for election purposes
and anyone
using such voters’ roll for other purposes is guilty of an
offence and liable on conviction to a fine or imprisonment
for a
period not exceeding one year or to both a fine and such
imprisonment.”
[65]
Head of Department, Mpumalanga Department of
Education and Another v Hoërskool Ermelo and Another
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC)
(
Ermelo
)
at para 70.
[66]
Section 46(1) of the Constitution provides:
“
The
National Assembly consists of no fewer than 350 and no more than 400
women and men elected as members in terms of an electoral
system
that—
. . .
(d)
results, in general, in proportional representation.”
The
corresponding provision in respect of proportional representation in
the Provincial Legislatures is section 105(1)(d).
[67]
Kham
above n 5
at para 76.
[68]
On the category of addresses, see [40] above.
[69]
See [16] to [48] above.
[70]
See [11] above. The IEC admits that it “did
not always record or retain addresses” before the enactment of
section
16(3). It is possible that some of the missing 4 160
addresses fall in this group – that is, they are physically
verifiable, but were simply not recorded on the IEC’s system
following registration.
[71]
The exact figure is 12 246 571.
Out of this, no addresses were captured in respect of 5 553 953
registered
voters, and in respect of the remaining 6 692 618
voters, the IEC had “incomplete” or “generic”
addresses in its possession. Any reference to voters with
missing addresses in this judgment includes both categories.
[72]
In oral argument the IEC stated that some of the
records of addresses were destroyed by flood and fire.
[73]
There is provision for the removal of registered
voters from the voters’ roll. Section 11(1) of the
Electoral Act
provides:
“
The
chief electoral officer must—
.
. .
(b)
deregister a voter, if the chief electoral officer is satisfied
that
that voter does not qualify or no longer qualifies for
registration.”
[74]
There is a relationship between section 8(3) and
16(3). It is not that a registration with no address recorded
against it
is invalid. Once a registration satisfies the
requirements of section 8, it is valid. For purposes of
section 8(3), an
address is important to the extent that it
helps the IEC ensure that the registration is in respect of the
correct voting district.
The obligation in section 16(3) to
provide addresses is of practical relevance to the performance of
the section 8(3) function:
it makes practical sense for the IEC to
record addresses at the stage of registration exactly because they
are going to be required
under section 16(3). But a
registration that perfectly satisfies the requirements of section 8
cannot be invalid just because,
for example, an IEC official who was
given an address failed to record it.
[75]
Section 159 of the Constitution stipulates:
“
(1)
The term of a Municipal Council may be no more than five years, as
determined
by national legislation.
(2)
If a Municipal Council is dissolved in terms of national
legislation,
or when its term expires, an election must be held
within 90 days of the date that Council was dissolved or its term
expired.”
Section 24 of the
Municipal Structures Act provides:
“
(1)
The term of municipal councils is five years, calculated from the
day following
the date set for the previous election of all
municipal councils in terms of subsection (2).
(2)
Whenever necessary, the Minister, after consulting the Electoral
Commission, must, by notice in the
Government Gazette
, call
and set a date for an election of all municipal councils, which must
be held within 90 days of the date of the expiry of
the term of
municipal councils. The notice may be published either before
or after the term of municipal councils expires
in terms of
subsection (1).”
As the last general local
government election was held on 18 May 2011, the last possible date
in terms of the Constitution to
hold the elections is 16 August
2016. We are told that the President has announced that the
elections will take place on
3 August 2016, and the Minister has
indeed gazetted that date (see
Local Government: Municipal
Structures Act (117/1998
): Calling and Setting a Date for Local
Government Elections, GN 562,
GG
40007, 23 May 2016).
[76]
Paragraph 6 of the IEC’s notice of motion
in this Court provides:
“
It
is declared that:
6.1
In conducting the 2016 local government elections and 2019 national
and provincial government elections, the [IEC] is not obliged to be
in possession of addresses for those voters who have been registered
in a particular voting district prior to 30 November 2015 and who do
not seek re registration in another voting district;
and
6.2
The [IEC] must take reasonable measures by 30 June 2020 to
obtain
addresses for the voters referred to in paragraph 6.1 above,
save where such addresses are not available.”
[77]
Section 6(1)
provides:
“
A
municipality’s segment of the voters’ roll existing on
the day on which the notice calling an election is published
in
terms of the Municipal Structures Act, is the segment that must be
used in that election.”
[78]
Section 9(1) of the Electoral Act read with
regulation 3(a) of the Regulations Concerning the Registration of
Voters, GN R1340,
GG
19388,
16 October 1998 (Electoral Regulations).
[79]
The IEC alleges that it is not in possession of
the contact details of these voters.
[80]
It explains that governmental databases such as
those kept by the South African Post Office and the South African
Social Security
Agency, or those kept by private companies, such as
cell-phone network operators, are inconsistent and unreliable and
may not
even set out a residential address.
[81]
At the time the application was launched in this
Court there were 16.2 million registered voters whose addresses were
not in the
possession of the IEC, this after the March 2016
registration weekend. At the time of filing its written
submissions and
after the April 2016 registration weekend, this
number had dropped to 12.2 million.
[82]
One registration weekend alone cost in the region
of R225 million.
[83]
The Electoral Act provides for a formal process
of de-registering a voter, which includes giving her or him notice,
and affording
her or him the possibility of an appeal. Section
11(1)(b) of the Electoral Act provides that the chief electoral
officer
must de-register a voter if she or him is satisfied that
such voter no longer qualifies for registration. Section
12(1)(c)
and (2) stipulates that notice together with reasons for
de-registration must be given to the voter concerned, and regulation
5 of the Electoral Regulations provides that this notification must
either be given: (a) by registered post to the voter’s
last
available postal address; (b) by hand to the voter’s last
known residential address; (c) by publishing notice in a
newspaper
circulating in the area where the voter’s last known ordinary
residence is situated; or (d) by displaying the
notification on
notice boards in the offices of both the provincial and municipal
electoral officers in the area of that voter’s
last known
ordinary residence. I should pause here to point out that,
because in the case of the 12.2 million voters, addresses
are either
not there or incomplete, the only options that may be available are
(c) and (d). Section 13(1) of the Electoral
Act allows an
aggrieved voter to appeal against the decision of the chief
electoral officer to the IEC
in the
prescribed manner, and regulation 6 of the Electoral Regulations
sets out a procedure on appeal, which includes the possibility
of a
referral to oral evidence.
[84]
Here I have in mind challenges that there has
been a breach of section 16(3) for a failure to provide addresses
that are available.
[85]
In summary, this process entails the following:
Phase 1: creating a database of addresses utilising voters’
identity numbers
and government and commercial databases lasting
from 25 February 2016 – 31 March 2017; Phase 2: analysing the
data and
cross-checking where multiple addresses exist for one
identity number lasting from 1 April 2017 – 30 September 2017;
Phase
3: a notification process carried out to ensure the details
collected are correct lasting from 1 October 2017 – 31 March
2018; Phase 4: capturing the sourced addresses, and correcting voter
registrations on the roll lasting from 1 April 2018 –
30 June
2018; Phase 5: appeals to be made and considered lasting from 1 July
2018 – 31 July 2018; Phase 6: a first general
voters’
roll inspection and an addresses furnishing weekend during October
and November 2018; Phase 7: a second general
voters’ roll
inspection and an address-furnishing weekend during February and
March 2019; and Phase 8: a communication
campaign targeted at any
remaining voters without addresses and field work lasting from
1 September 2019 – 30 November
2019. The IEC
requests this Court to grant a further indulgence of seven months in
case it encounters difficulties in financing
the process with
Treasury, or in its implementation.
[86]
Section 172(1)(b) is quoted at [82] below.
[87]
Section 7(2) and (3) provides:
“
(2)
A person whose name does not appear on the certified segment of the
voters’
roll for a voting district and who claims to have
applied for registration as a voter in that voting district before
or on the
date of publication of the notice in terms of which the
election was called, may submit to the [IEC], at the address of the
[IEC’s]
local representative, or to the presiding officer of
the voting station for that voting district—
(a)
a sworn or solemnly affirmed statement on a prescribed form
containing
the following particulars:
(i)
The full name, identity number and date of birth of that person;
(ii)
that person’s finger print;
(iii)
the address where that person ordinarily resides;
(iv)
a declaration that the address is situated within the area of that
voting district;
(v)
a declaration that that person applied for registration as a voter
in that voting district before or on the date of publication of the
notice; and
(vi)
a request that that
person’s name should be included in the certified
segment of
the voters’ roll for that voting district; and
(b)
proof that that person applied for registration as a voter in that
voting district before or on the date of publication of the notice.
(3)
If the [IEC] or the presiding officer, as the case may be, has no
reason to doubt the correctness of the contents of the statement—
(a)
the [IEC] or the presiding officer must make an endorsement to that
effect on the statement; and
(b)
that person must be regarded as having been registered as a voter
on
the certified segment of the voters’ roll for the voting
district referred to in subsection (2)(a)(iv).”
[88]
The form will reflect the voter’s name and
identity number.
[89]
The IFP says that “[a]ll provisional
ballots will be collected separately and placed in a sealed
provisional ballot box”.
[90]
Section 15 of the Electoral Act regulates this
process.
[91]
Help America Vote Act of 2002. See 42
United States Code (2009) at § 15482.
[92]
According to the independent candidates’
proposed procedure, any voter not on the certified voters’
roll would have
to satisfy the election officer that he or she was
previously registered, either by presenting his or her ID book
containing
an original registration sticker or by appearing on the
uncertified voters’ roll. Assuming the election officer
was
satisfied that the voter had been previously registered, the
voter would cast a ballot and seal the ballot in an envelope.
The sealed ballot would then be placed in a second larger envelope,
together with a written affirmation of the voter’s
address and
registration particulars. Each larger envelope would be placed
in a separate ballot box delivered to the counting
station. At
the counting station, the presiding officer would open each larger
envelope and verify that the address particulars
in the written
affirmation fell within his or her ward. If they did, then the
voter’s sealed ballot would be placed
in a fresh ballot box
and counted among the ordinary votes.
[93]
See above n 83.
[94]
Section 190(1)(a) of the Constitution.
[95]
Fedsure Life Assurance Ltd and Others v
Greater Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at
para 58.
[96]
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para
34.
[97]
The IFP proposes the following notice, objection
and appeal process. As soon as possible following the
election, the IEC
will publish a list of all voters who have cast
provisional ballots and two weeks will be allotted for political
parties and
other interested persons to lodge objections, if any,
against the registration of any provisional voters in the district
in which
their vote was cast. If no objections are lodged in
respect of a provisional ballot, that ballot is counted together
with
the ordinary votes. If an objection is received, section
15 of the Electoral Act applies. In terms of section 15(3),
the IEC must make a decision on any objection within 14 days after
the objection was made. In terms of section 15(4), the
chief
electoral officer must give effect to the IEC’s decision
within three days thereafter.
[98]
See section 190(1)(c) of the Constitution read
with section 57(2) of the Electoral Act and section 5(1)(n) of the
Electoral Commission
Act 51 of 1996 (Electoral Commission Act).
[99]
Bruce and Another v Fleecytex Johannesburg CC
and Others
[1998] ZACC 3
;
1998 (2) SA
1143
(CC);
1998 (4) BCLR 415
(CC) at para 8.
[100]
See
Mazibuko NO v
Sisulu and Others NNO
[2013] ZACC 28
;
2013 (6) SA 249
(CC);
2013 (11) BCLR 1297
(CC) (
Mazibuko
)
at paras 34-5; and
AParty and Another v
The Minister for Home Affairs and Others, Moloko and Others v The
Minister for Home Affairs and Another
(
AParty
)
[2009] ZACC 4
;
2009 (3) SA 649
(CC);
2009 (6) BCLR 611
(CC) at para
29.
[101]
Mazibuko
above n
100 at para 25;
Bruce
above n 99 at para 19.
[102]
Bruce
above n 99
at para 8.
[103]
AParty
above n
100 at para 30.
[104]
Id at para 33.
[105]
Mazibuko
above n
100 at para 35.
[106]
Id para 36.
[107]
Section 19(3). See above n 25.
[108]
See [66] above.
[109]
Ermelo
above n
65 at para 97. This was adopted by Mogoeng CJ in
Minister
of Safety and Security v Van Der Merwe and Others
[2011] ZACC 19
;
2011 (5) SA 61
(CC);
2011 (9) BCLR 961
(CC) at para
59.
[110]
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para
97.
[111]
See above n 75.
[112]
Section 1 quoted at [66] above.
[113]
Emphasis added.
[114]
Section 8(1) of the Bill of Rights reads:
“
The Bill of
Rights applies to all law, and binds the legislature, the executive,
the judiciary and all organs of state.”
[115]
Compare
Mabaso v Law
Society of the Northern Provinces
[2004]
ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) where, in para
13, this Court held:
“
In
a constitutional democracy, a Court should not declare the acts of
another arm of government to be inconsistent with the Constitution
without ensuring that that arm of government is given a proper
opportunity to consider the constitutional challenge and to make
such representations to the Court as it considers fit.”
See also para 5 of
Parbhoo and Others v Getz NO and
Another
[1997] ZACC 9
;
1997 (4) SA
1095
(CC);
1997 (10) BCLR 1337
(CC), where this Court stated that—
“
it
appears undesirable for any court to make an order [concerning the
invalidity of legislation]
where a
relevant organ of State is not a party to the proceedings, unless
that organ has had an opportunity to intervene in such
proceedings”.
It is so that these are
about declarations of invalidity, but the point is generally true
about orders that impose an obligation
on a non-party.
[116]
Section 79(1) of the Constitution provides:
“
The
President must either assent to and sign a Bill passed in terms of
this Chapter or, if the President has reservations about
the
constitutionality of the Bill, refer it back to the National
Assembly for reconsideration.”
Section 81 of the
Constitution provides:
“
A
Bill assented to and signed by the President becomes an Act of
Parliament, must be published promptly, and takes effect when
published or on a date determined in terms of the Act.”
[117]
See [16] to [19] above.
[118]
Id.
[119]
See [19] above.
[120]
See
Minister of
Health and Others v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1033
(CC) at
paras 104-7; and
August and Another v
Electoral Commission and Others
[1999]
ZACC 3
;
1999 (3) SA 1
(CC);
1999 (4) BCLR 363
(CC) (
August
)
at para 39.
[121]
See for example
Sibiya
and Others v Director of Public Prosecutions, Johannesburg and
Others
[2005] ZACC 6
;
2005 (5) SA 315
(CC);
2005 (8) BCLR 812
(CC). In that case Yacoob J held that there
was non compliance with
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) insofar as the death
sentence of various convicted people imposed before that judgment
had not yet been set aside and altered.
In addition to an
order compelling various state organs to ensure that this was done,
they were ordered to file affidavits setting
out the steps taken in
doing so.
[122]
Chevron SA (Pty) Limited v Wilson t/a Wilson's
Transport and Others
[2015] ZACC 15
;
2015 (10) BCLR 1158
(CC) at para 39; and
Kham
above n 5 at paras 24-9. At para 28 of
Kham
,
the Court held:
“
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.
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.” (Footnote omitted.)
[123]
Michael and Another v Linksfield Park Clinic
(Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at paras 14-5;
Berkowitz v
Berkowitz
1956 (3) SA 522
(SR)
at 527B-C; and
Mahomed v Nagdee
1952 (1) SA 410
(A) at 420H-421A.
[124]
Kham
above n 5.
[125]
Id at para 52.
[126]
Id at para 3.
[127]
Section 8(3) of the Electoral Act reads as
follows:
“
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.”
[128]
See
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) (
ITAC
)
at para 39.
[129]
First judgment at [6].
[130]
See above n 19.
[131]
Doctors for Life International v Speaker of
the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC) at
para 25;
ITAC
above
n 128 at para 39;
National Treasury and
Others v Opposition to Urban Tolling Alliance and Others
[2012]
ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC) at paras 22,
27 and 44; and
Economic Freedom
Fighters v Speaker of the National Assembly and Others, Democratic
Alliance v Speaker of the National Assembly
and Others
[2016] ZACC 11
;
2016 (3) SA 580
(CC);
2016 (5) BCLR 618
(CC) at
paras 18 and 43.
[132]
The “RDP” houses are those built by
the State in the furtherance of the Reconstruction and Development
Programme that
is meant to make housing available for the poorest of
our citizens.
[133]
See section 190(1)(b), quoted in above n 26.
[134]
See above n 75.
[135]
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 of South
Africa
) at para 12.
[136]
Section 181 of the Constitution lists six
institutions, including the Electoral Commission, which are
established in order to
strengthen constitutional democracy.
[137]
Section 26(2) provides:
“
The state
must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation
of this
right.”
[138]
Section 27(2) provides:
“
The
state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation
of
each of these rights.”
[139]
Soobramoney v Minister of Health
(KwaZulu-Natal)
[1997] ZACC 17; 1998
(1) SA 765 (CC); 1997 (12) BCLR 1696 (CC).
[140]
Id at para 11.
[141]
Government of the Republic of South Africa and
Others v Grootboom and Others
[2000]
ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 46.
[142]
Kham
above n 5.
[143]
Section 8 in relevant part provides:
“
(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.”
[144]
Section 157(5) provides:
“
A
person may vote in a municipality only if that person is registered
on that municipality’s segment of the national common
voters
roll.”
[145]
Mhlope
above n
21 at para 12.
[146]
Id at para 16.
[147]
Kham
above n 5
at para 69.
[148]
See above n 143.
[149]
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal
[2010]
ZACC 11
;
2010 (6) SA 182
(CC);
2010 (9) BCLR 859
(CC)
at para 73.
[150]
Section 165 of the Constitution provides:
“
(1)
The judicial authority of the Republic is vested in the courts.
(2)
The courts are independent and subject only to the Constitution
and
the law, which they must apply impartially and without fear, favour
or prejudice.”
[151]
Doctors for Life International v Speaker of
the National Assembly and
Others
[2006] ZACC 11
;
2006
(6)
SA 416
(CC);
2006 (12) BCLR
1399
(CC) at paras 68-9
.
[152]
Mhlope
above n
21 at paras 22-3.
[153]
New National Party
of South Africa
above
n 135 at para 12.
[154]
Kham
above n 5
at para 127.
[155]
Section 39(2) of the Constitution provides:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.”
[156]
Fraser v ABSA Bank Limited
[2006]
ZACC 24
;
2007 (3) SA 484
(CC);
2007 (3) BCLR 219
(CC) at paras 43
and 47.
[157]
Richter
v
The Minister for Home Affairs and Others (with the Democratic
Alliance and Others Intervening, and with Afriforum and Another
as
Amici Curiae)
[2009] ZACC 3
;
2009 (3)
SA 615
(CC);
2009 (5) BCLR 448
(CC) (
Richter
)
at para 53.
[158]
August
above n
120 at para 17.