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[2018] ZACC 46
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Electoral Commission of South Africa v Speaker of the National Assembly and Others (CCT55/16) [2018] ZACC 46; 2019 (3) BCLR 289 (CC) (22 November 2018)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 55/16
In the matter
between:
ELECTORAL
COMMISSION OF SOUTH
AFRICA
Applicant
and
SPEAKER
OF THE NATIONAL
ASSEMBLY
First
Respondent
CHAIRPERSON OF
THE NATIONAL COUNCIL
OF
PROVINCES
Second
Respondent
AFRICAN NATIONAL
CONGRESS
Third
Respondent
DEMOCRATIC
ALLIANCE
Fourth
Respondent
ECONOMIC
FREEDOM
FIGHTERS
Fifth
Respondent
INKATHA
FREEDOM
PARTY
Sixth
Respondent
NATIONAL FREEDOM
PARTY
Seventh
Respondent
UNITED DEMOCRATIC
MOVEMENT
Eighth
Respondent
FREEDOM FRONT
PLUS
Ninth
Respondent
CONGRESS OF THE
PEOPLE
T
enth
Respondent
AFRICAN
CHRISTIAN DEMOCRATIC
PARTY
Eleventh
Respondent
AFRICAN
INDEPENDENT
CONGRESS
Twelfth
Respondent
AGANG
SA
Thirteenth
Respondent
PAN AFRICANIST
CONGRESS OF
AZANIA
Fourteenth
Respondent
AFRICAN PEOPLE’S
CONVENTION
Fifteenth
Respondent
MINISTER OF HOME
AFFAIRS
Sixteenth
Respondent
MINISTER OF
COOPERATIVE GOVERNANCE
AND TRADITIONAL
AFFAIRS
Seventeenth
Respondent
NATIONAL HOUSE OF
TRADITIONAL
LEADERS
Eighteenth
Respondent
AARON PASELA
MHLOPE
Nineteenth
Respondent
JOHANNA
XABA
Twentieth
Respondent
Neutral citation:
Electoral Commission of South Africa v Speaker of the
National Assembly and Others
[2018] ZACC 46
Coram:
Basson
AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J,
Mhlantla J, Petse AJ and Theron J
Judgments:
Cameron J (majority): [1] to [66]
Theron J (minority):
[67] to [132]
Heard on:
29
August 2018
Decided on:
22 November 2018
Summary:
urgent
application for extension of a suspension of invalidity —
appropriate remedy, and just and equitable order —
extension
granted
ORDER
The following order
is made:
1. The declaration of invalidity in paragraph 5 of
Electoral
Commission v Mhlope
2016 (5) SA 1
(CC) is further suspended until
30 November 2019.
2. The suspension is subject to the following conditions:
(a)
The Electoral Commission must by 30 November 2019 have obtained and
recorded on the national common voters’ roll all addresses
that
were reasonably available as at 17 December 2003;
(b)
The Electoral Commission must furnish reports to this Court on
31 January 2019, 31 March 2019, 31 May 2019, 31
July
2019 and 30 September 2019 setting out:
(i) the number of outstanding post-December 2003 addresses of
registered voters it has obtained since its previous report and
recorded on the national common voters’ roll;
(ii) the number of post-December 2003 addresses still outstanding;
(iii) the steps taken and to be taken to obtain these addresses; and
(iv) any other matter it may consider necessary to report on.
(c)
In these reports, the Electoral Commission must set out a means by
which it proposes to—
(i) indicate clearly on the voters’ roll which voters have
incomplete, inadequate or no addresses;
(ii) require voters with incomplete, inadequate or no addresses who
wish to vote to supply their addresses before voting on voting
day;
and
(iii) enable political parties to access and scrutinise the addresses
and any other details supplied in this way.
(d)
Any party or person is afforded leave to approach the Court on new or
supplemented papers to set this matter down on good cause
for further
argument.
(e)
The Electoral Commission is ordered to pay the costs incurred in
these proceedings by the Democratic Alliance, the Inkatha Freedom
Party and Mr Aaron Pasela Mhlope and Ms Johanna
Xaba, including the costs of two counsel.
JUDGMENT
CAMERON J (Basson
AJ, Dlodlo AJ, Goliath AJ, Froneman J, Khampepe J and Mhlantla J
concurring)
Introduction and
background
[1]
This is an urgent application in which the Electoral
Commission (Commission)
[1]
seeks to protract an order suspending a declaration of invalidity
this Court issued in 2016 in
Mhlope
.
[2]
There, the Court declared that the Commission’s failure to
record all available voters’ addresses on the national
common
voters’ roll was inconsistent with its rule of law obligations
under section 1(c) of the Constitution and invalid.
[3]
[2]
The Court however gave the Commission a breather. It
suspended this declaration until 30 June 2018. It declared that
by that date the Commission must have obtained and recorded on the
national common voters’ roll all addresses that were reasonably
available as at 17 December 2003. That was the date on which
the Electoral Laws Amendment Act
[4]
brought into effect new requirements for the voters’ roll.
Mhlope
held that the effect of the 2003 amendments was that,
from that date, the Commission was obliged to include all available
addresses
in the voters’ roll.
[5]
[3]
Mhlope
ordered the Commission to report to this Court
six-monthly on its progress in garnering addresses to fulfil this
obligation.
The Commission did.
[6]
It has made substantial progress, but a significant shortfall
remains. It now seeks an urgent extension of the suspension
exempting it temporarily from the address obligation. After the
Commission lodged this application, on 21 May 2018, the Court
on
30 June 2018 ordered an interim extension until 30 November
2018 and set the matter down for hearing to determine
the further
extension.
[4]
The question is whether it is just
and equitable to grant the extension. This Court pointed out in
Zondi
,
[7]
following
Ntuli
,
[8]
that an application to extend a suspension of a
declaration of invalidity invokes the Court’s power under
section 172(1)(b)
of the Constitution to make an “order
that is just and equitable”.
[9]
Zondi
noted
that
the just and equitable power is
rooted in the interests of justice and involves similar
considerations.
[10]
And what is just and equitable “depends on the facts of each
case”.
[11]
[5]
The issue does not involve grand
jurisprudence but a practical and just exercise of this Court’s
powers in managing the Commission’s
duties. Whether the
facts make it just and equitable to grant the extension brings into
focus what the Commission has done
since
Mhlope
and the
consequences,
for the impending
2019 national and provincial elections, of granting or refusing the
extension sought.
[6]
Behind the complexities of precedent
and the intricate statutory machinery, lies a question of importance
for
every
South African. How can this
Court best ensure that the 2019 elections fulfil the promises the
Bill of Rights makes about the
franchise?
[12]
These are, first, that every citizen is “free to make political
choices”,
[13]
and second, that every citizen “has the right to free, fair and
regular elections”.
[14]
[7]
These
lofty
promises
are secured through rigorously enforced and scrutinised practical
arrangements, including addresses. Linking every
registered
voter to a geographical
location
through a
place of residence helps ensure the integrity of the voters’
roll and hence bolsters the sanctity of these promises.
Tying
voters to
addresses is critical for two reasons. First,
they enable parties, especially in close contests, to track down
individual
voters to canvass them. Second, they enable a check
on voter fraud by allowing candidates and parties to scrutinise the
roll,
voter by voter, location by location, to guard against bogus
registrations, phantom voters and bussing-in – which is the
large-scale transportation into a voting area, for vote-rigging
purposes, of voters resident elsewhere.
[8]
The fraud-prevention capacity of checking the roll is
complemented by the message-enhancing power of reaching actual
voters. The
fact that many voters, rural and urban, nowadays
rely on smart phones and social media for their news and to
communicate does not
negate the continuing importance of these
practical checks and canvassing opportunities. No-one contended
otherwise.
[9]
Behind the practical utilities lies the burden of an enormous
administrative task: registering every voter and ensuring that every
voter, once registered, is conjoined with a place of residence.
That is the task
Mhlope
set the Commission. In this
application, the Commission confesses it has been unable to fully
realise it. In oral argument
the Commission told the Court that
it was “very close” to having complied with the order,
but did not claim success
in doing so. What the Commission said
was that it had taken the necessary steps to enable it to attempt to
attain reasonable
compliance with the
Mhlope
order.
[15]
But it has not implemented all these steps.
Who
is before us?
[10]
In seeking the extension, the
Commission
[16]
cited the Speaker of the National Assembly (NA) and Chairperson
of the National Council of Provinces (NCOP) as first and second
respondents. The Commission cited political parties represented
in the NA and the NCOP as the third to fifteenth respondents.
[17]
And the sixteenth to eighteenth respondents are representatives of
state institutions with an interest in the proceedings.
[18]
[11]
In 2016, Mr Aaron Pasela Mhlope and Ms
Johanna Xaba were the first and second respondents in
Mhlope
(“the
Mhlope
respondents”). At first the Commission in seeking the
extension did not cite them as parties. They protested
strenuously at this as an
indignity
and an
injustice. The Commission smartly apologised for not alerting
them.
[19]
For all practical purposes they have since then been
respondents, opposing the extension.
Statutory
framework
[12]
As appears from
Mhlope
,
in requiring registration of voters on the voters’ roll, the
Electoral
Act
[20]
links registration to place of residence. It specifies that a
voter’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”.
[21]
Section 16(3) obliges the chief electoral officer to “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”.
These are the statutory duties that impel this application.
History
Kham
[13]
Between August and December 2013, eight
by-elections were held in the Tlokwe
Local
Municipality.
A group of unsuccessful candidates (“
Kham
applicants”)
challenged the outcome in the Electoral Court
[22]
because the voters’ roll was incorrect and unreliable.
[23]
They complained that a large number of out-of-district voters were
bussed-in.
[24]
They sought an investigation into the registration process, including
the names and addresses of the voters in the by-election
– and
asked for the results to be nullified.
[25]
[14]
The Electoral Court by a majority found
against the
Kham
applicants.
[26]
It held that they failed to present sufficient evidence of
irregularities to prove their materiality or to properly invoke
mechanisms the Electoral Act offered them to trigger investigations
by the Commission.
[27]
The Electoral Court concluded that it did not have jurisdiction
itself
to order an investigation. So
it dismissed the application in its entirety.
[28]
[15]
This Court reversed the outcome.
It found that the
irregular registrations skewed the voters’
roll and breached the principle that only those entitled to do so
should vote.
[29]
The key fact was that the voters’ rolls did not include the
addresses.
[30]
The Commission’s case was that including addresses was
not necessary.
[31]
This Court disagreed. It said section 16(3) of the Electoral
Act explicitly required the Commission to provide a voters’
roll that includes voters’ addresses to all registered
political parties contesting the election, plus to independent
candidates.
[32]
The
Kham
by-elections were set aside as irregular and not free
or fair.
[33]
This Court ordered that they be held afresh.
[16]
The Court further 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.”
[34]
In this lies
the genesis of the present
application
.
Mhlope
[17]
The Commission took steps to implement
Kham
. It
prepared for the fresh Tlokwe by-elections. Nationwide, it
trained its 52 000 electoral staff on how to obtain
sufficient
particularity of voters’ addresses. In particular, it
developed a new form, the REC AS. This complemented
the
existing registration form, the REC 1. REC 1 captures formal or
conventional addresses. REC AS is designed to capture
non formal or non-conventional addresses. In addition, the
Commission developed a new staff training manual.
[35]
[18]
On 16 February 2016, eight days before the fresh Tlokwe
by-elections, the independent candidates pressed the alarm button.
Their complaint was that, contrary to
Kham
, the voters’
roll omitted the physical addresses of no fewer than 4 160
voters. The Commission’s stance
was that the
Kham
order was prospective – in other words, its duty was to provide
the addresses only of voters who had registered or re-registered
after
Kham
was handed down on 30 November 2015. For
voters who had registered or re-registered before this date, it was
obliged
only to provide addresses that were already recorded on its
system. This was because these were the only addresses
“available”
to it. It had no obligation to obtain
addresses of which it had no record.
[19]
The independent candidates were dissatisfied. They
launched urgent proceedings in the Electoral Court. They
contended
that the only voters in respect of whom the Commission was
not obliged to provide “physical” addresses were those
whose
addresses were not available. The Electoral Court
intervened in their favour. It set aside the Commission’s
certification
of the voters’ roll, postponed the by-elections
for six weeks and directed the Commission “to provide all
candidates
in the Tlokwe municipal by-elections with a copy 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 [were] available”.
[36]
[20]
The Commission sought to appeal to this Court.
[37]
The question was: did the address registration requirement apply
post-
Kham
, post-December 2003, or entirely retrospectively?
The Court’s answer was to choose the middle path. The
Commission
disclosed that, nationally, the voters’ roll was
missing more than 12.2 million addresses. Its point was that,
if it
was wrong, and the
Mhlope
applicants were right, it
would have to provide all 12.2 million addresses, where
available, for the upcoming country-wide
municipal elections of
2016.
[38]
In effect, the Commission sought a moratorium until
after
the
2019 provincial and national elections in respect of the duty to
provide the addresses of voters registered before
Kham
.
It asked for time to acquire these by no later than 30 June 2020.
[39]
[21]
Mhlope
denied the Commission the leeway it sought.
[40]
It rejected the Commission’s argument that the
address-registration requirement applied only post
Kham
.
The majority
[41]
held, however, that section 16(3) had introduced an obligation for
future registrations only.
[42]
These had to include a recordal of the available addresses in the
national common voters’ roll. But the provision
did not
apply retrospectively. The Commission was not obliged to go
back to correct its registration records to include reasonably
or
objectively available addresses of voters already registered in
2003.
[43]
On the contrary, the 2003 amendment did not cast a shadow
backwards or create obligations for the Commission in relation
to
voters who had already been registered.
[44]
[22]
The Court thus declined to direct the Commission to record
available addresses of voters registered before the 2003 statutory
amendments.
[45]
But it declared the Commission’s failure to record all
post-2003 available addresses on the voters’ roll inconsistent
with its rule of law obligations and thus invalid.
[23]
The
Mhlope
Court however suspended this declaration.
It also suspended the duty of the 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 . . .
except for the Tlokwe Local
Municipality”. The Court refused the Commission leave to
appeal. It ordered the Commission
to report on a six-monthly
basis on progress.
[46]
Commission’s reports under the Mhlope order
[24]
T
he Commission timeously filed
reports. The first, dated 13 December 2016, was after the 2016
local government elections.
This showed dramatic gains.
Since March 2016, the percentage of registered voters with
complete addresses had more than
doubled. From 34%, the
proportion had grown to no less than 72%.
[25]
By contrast, the Commission’s second report six months
later was flat. It recorded “minimal further
progress”.
[47]
The Commission explained that there had been no general
voter-harvesting weekend between January and June 2017. The
problem was money. It set out its proposals to National
Treasury (Treasury) for more funding. And it signalled that
it
might not be able to meet the June 2018 deadline.
[48]
However, it said that by December 2017 it would be better placed to
say whether it was likely to have to ask for an extension
of the 30
June 2018 deadline.
[49]
[26]
On 24 August 2017, this Court issued directions. These
required the Commission to provide additional details of its funding
requests to Treasury, and any geographically targeted efforts to
increase address-recording, plus details of contingency plans.
The Commission filed two supplementary reports, on 14 September
and 30 November 2017, respectively. These recorded
its
ongoing engagements with Treasury and Cabinet. The Commission
had asked for R300 million but had managed to get
a preliminary
allocation of R180 million. This would fund one harvesting
weekend, scheduled for 10 and 11 March 2018, which
the Commission
considered workable. Significantly for the present proceedings,
it noted that targeted registration focussing
on specific areas had
not generally resulted in a high turnout.
[27]
On 14 December 2017, the Commission filed its third
six-monthly report. The proportion of registered voters with
addresses
had increased only marginally, from 74%–75%. It
had launched a new online registration system. It had also
received
final confirmation of Treasury’s R180 million
allocation. With this, it would open 22 612 voting
stations for
voter registration on 10 and 11 March 2018. It
anticipated that, after that voter registration weekend, the voters’
roll would be close to complete.
[28]
When its papers in this application were lodged in May 2018,
the Commission was still working through the data gathered from the
10 and 11 March 2018 voter registration weekend. It projects
that there are 26 212 476 registered voters on the
common
voters’ roll. Of these, 3 409 183 (13%) will
have an incomplete or generic address and 2 204 246
(8%)
will have none; meaning that a total of 21% of registered voters will
still have incomplete, generic or no address (address-less
voters).
[29]
A significant proportion of address-less voters are those who
registered before 17 December 2003.
Mhlope
made
clear it is only post-December 2003 registrations for which the
Commission is obliged to have addresses.
[50]
But the Court expressed the hope that “desirability and
utility” would “nudge the [Commission] to also
record the
objectively available addresses of all the pre-December 2003 voters,
while it prioritises the post-December 2003 voters
for
compliance”.
[51]
Of the 2.2 million address-less voters, only 1.3 million
are post-December 2003 registrations.
This application
for extension
[30]
In its present application, t
he
Commission set out in detail everything it did in seeking to comply
with
Mhlope
. It nowhere claimed that it had fulfilled
the
Mhlope
order. That was not its case. Instead,
it acknowledged that there were registered voters’ addresses
“available”
to it, which it had not yet recorded.
These represented a corps of voters whose addresses were in fact, on
the objective
test
Mhlope
propounded,
[52]
“reasonably available” to it, but whom its efforts thus
far had been inadequate to reach. This meant that the
Commission accepted that it had been unable to comply with the
Mhlope
order.
[31]
What the Commission did ask for was an extension of the
breather
Mhlope
afforded it. It contended that
extending
the
Mhlope
suspension for a further 17 months, to November 2019, after the
2019 elections,
would allow it to take further steps to fulfil
Mhlope
fully. By seeking this relief, the Commission
conceded that it had not fulfilled
Mhlope
. It sought the
extension to have leeway to achieve a number of further steps towards
that goal. First, it sought to
further reduce the number of
address-less voters; second, it wished Parliament to consider and
enact amendments to regulate the
issue; and third it wanted to ensure
that the 2019 elections are not imperilled by anyone seeking to only
rely on missing addresses
to challenge the results. In oral
argument the Commission said the extension was designed to avert
“spoiling tactics”
in 2019.
Outstanding addresses
[32]
The Commission projects that, once the capturing process is
complete, there will be a total of 1 299 263 post-December
2003 registered voters without any recorded addresses. This
represents 4.9% of all registered voters as at 8 May 2018.
The
provinces with the highest number of address-less voters are Gauteng
(369 451), KwaZulu-Natal (213 025) and Eastern
Cape
(164 622). Proportionately to registered voters in the
province, the Free State (8%), Mpumalanga (6%) and Gauteng
(5.9%)
show the highest percentages. The Western Cape (2.9%),
KwaZulu-Natal (3.9%) and North West (4.3%) show the lowest
proportion.
[33]
The Commission contends that the high number of informal
settlements explains the large number of address-less voters –
and
that predominantly rural provinces have a backlog because it
could not collect meaningful descriptive information before it
introduced
the REC AS form in 2016. The Commission notes
measures it has taken to urge address-less voters to provide
addresses.
It has advertised across a wide range of media,
including radio advertisements, and sent out nearly 11 million Short
Message Service
(SMS) messages to address-less voters, as well as
distributing information pamphlets to specific households through
fieldworkers.
All this was backed up by a public contact
centre, and digital communications, such as the voting station finder
application
on the Commission’s website, Unstructured
Supplementary Service Data (USSD) by dialling *120*432#, SMSing an
identity number
to 32810, and posts issued on social media platforms
(Twitter and Facebook). The total cost was about R78 million.
This included the launch of its online address-harvesting portal.
Before the 10 and 11 March 2018 registration weekend, the
Commission
gave political parties detailed lists of address less voters,
per voting district, for them to help with outstanding
addresses.
[34]
In addition, the Commission tried to create a database of
addresses linked to identity numbers from government and commercial
data
sources. The Commission has received address data from
Telkom South Africa (SOC) Limited, Statistics South Africa,
Department of Home Affairs and the South African Social Security
Agency, Eskom Holdings (SOC) Limited and South African
Post
Office (SOC) Limited. These can be used only if they accord
with or confirm the voters’ registration in relation
to the
boundaries of the voting district in question. This requires
geo-coded addresses with corresponding global positions
service (GPS)
co-ordinates. The Commission says that it needs more time to
carry out this analysis.
[35]
The Commission also invoked the assistance of
municipalities. From them it requested databases of residents
in order to extract
missing addresses.
[53]
This did not achieve much.
Legislative amendments
[36]
The Commission says it is preparing amendments to the
Electoral Act to propose to Parliament. These will seek to
provide certainty
on how to manage address-less voters. The
extension will allow this to happen. The Commission is
considering: (a) a
mechanism for voters on the voters’ roll who
arrive to vote but without an address; (b) closing registration at an
earlier
date in the voters’ roll timetable; (c) requiring
certification of the voters’ roll at the elections as opposed
to
their proclamation; (d) obliging its chief executive officer to
make available a pre certification voters’ roll to
contestants,
thus allowing objections before the roll is certified
(and excluding them later) and (e) permitting differential treatment
of voters
and votes in respect of whom objections are raised and
which cannot be ruled upon immediately by the presiding officer.
[37]
At the
end of all this, the Commission warns that, by the time of the 2019
elections, its addresses problem will not be resolved.
The
impending end of the suspension entails that the guillotine of the
full address recording obligation will fall onto the Commission.
The Commission is apprehensive of this, because it means that those
dissatisfied with the outcome of the 2019
elections may seek to challenge it by relying on the address
shortfall. Even if
challenges of this kind ultimately fail,
they could imperil the public credibility of the results. This,
the Commission said,
should be avoided.
[38]
By contrast, granting the extension
to November 2019 would allow the
Commission
to
collect further addresses during the run-up to the 2019 elections and
the elections themselves. Registration drives shortly
before
elections and on voting days themselves, the Commission emphasises,
are the most effective way to get missing addresses.
The
Commission could also activate its new registration technology which
will help with collecting and retaining addresses.
And new
legislation could be put in place to regulate whatever missing
addresses remain. The 2019 elections could then take
place
smoothly and credibly, without allowing missing address-based
challenges.
[39]
Moreover, the Commission says, the extension will not
cause material prejudice to any person or party. This is
because the
extension will cover only national and provincial
elections but not local elections. Having addresses is
important only to
local government elections, where the ward
boundaries make the residential location of voters crucial.
This is not so in
national or provincial elections. The
collection of addresses is likely to be complete by the time of the
next local government
elections, in 2021.
Respondents’ opposition
[40]
Though the African National Congress and the Economic Freedom
Fighters abide by the Court’s decision, the
Mhlope
respondents oppose. They say the Commission employed
conventional methods and failed – but these are not the only
way to overcome its difficulties. They dispute the reliability
of the Commission’s reports. Like the Inkatha Freedom
Party (IFP), they cast the Commission as the author of its own
predicament. The Democratic Alliance (DA) noted that even
though the Commission knew as early as 2017 that progress was modest,
it brought these proceedings barely six weeks before the
deadline.
[41]
The independent candidates point out that without addresses,
it would be impossible for them to conduct door to door campaigns.
They add that there is a real risk that identity theft could be used
in an orchestrated manner, allowing phantom voters to cast
illegal
votes. Granting the extension will pose a serious threat to
free and fair elections. They therefore propounded
a
two-envelope solution. This would entitle registered voters
without addresses to vote, but place their votes in a separate
envelope in case of challenge to the outcome.
[42]
The IFP and the DA also oppose. During oral argument the
stance of these parties developed somewhat in nuance and substance
from that in their opposing affidavits. The IFP emphasised that
no voter should be refused the right to vote purely because
they do
not have an address recorded on the voters’ roll.
However, where no addresses are recorded, opportunity for
fraud and
manipulation arises. It rejected the Commission’s claim
that addresses are less important for national elections
and that
there will be minimal harm if the suspension spans the 2019 national
and provincial elections. The DA agrees.
It disputes that
there will be no material prejudice, since a party may win a majority
in a particular province by only a handful
of votes. There,
incorrectly registered voters would be highly material.
[43]
The DA complains that the Commission has not implemented all
its suggestions. The Commission responds that it has indeed
embraced
the DA’s suggestion of a call centre, for
outbound “cold calling”. In addition, it points to
its efforts
to communicate by email. It says its funds are
limited and best spent elsewhere.
[44]
In oral argument, the IFP strongly pressed the point that
there is no basis for believing that the Commission will have greater
success in collecting addresses in the next 17 months than it has had
over the last two years. This led the IFP to propound
a
solution, on which it elaborated in oral argument. The
Commission should receive the extension it sought – but only
on
an express condition. This was that elaborate special provision
be made in the 2019 elections to highlight all voters
on the roll who
do not have adequate addresses.
[45]
First, the voters’ roll should clearly indicate those
without addresses. This could be done by asterisking their
names.
Second, those voters should be required, before voting,
to supply their addresses. This, the IFP said, would enable
opposition
parties and independent candidates to follow up these
addresses to locate bogus registrations as well as registrations in
the wrong
district or province. That, in turn, would enable
properly mounted and soundly based challenges to the elections to
proceed
without being stifled by a blanket unqualified extension
until November 2019.
[46]
The DA continued to urge that any extension should not go
beyond 22 March 2019, which is two months before 22 May
2019.
The latter is the date on which the 90-day period within
which the election must be called starts to run.
[54]
22 March 2019 is thus the date on which the statutory clock
starts ticking for certifying the voters’ roll in
advance of
that date. This, the DA urged, would enable elections and
electioneering to take place according to the prescribed
statutory
timetable.
[47]
The Commission admits that it reported modest progress early
on but claims that the most important aspect of its third report was
the national voter registration weekend of March 2018. Only
when it saw the relatively modest results from this weekend could
it
have known that an extension was needed. It would have been
premature to come to court earlier.
[48]
The core of the Commission’s case is that, despite its
extensive efforts and expenditure of resources, the harsh lesson is
that voter registration weekends without upcoming elections do not
work very well. This is because voters are not incentivised
to
register or confirm their registration details. The Commission
has also improved the analysis and management of existing
and
historic registered voters’ addresses data. This has
resulted in the more accurate storage and classification of
recorded
addresses. Granting the extension will allow the Commission to
continue collecting outstanding addresses, while
also granting
Parliament space to amend the legislation.
[49]
Merely having no registered address, the Commission insists,
makes it no easier for a voter to be bussed from one province to
another.
There are adequate safeguards; and even should a voter
with a missing address be registered in the wrong province (which is
unlikely given that the voters with missing addresses have been
registered in their existing provinces for a number of years already)
there are, here too, adequate safeguards. The threat of
bussing, the Commission says, is more imagined than real.
[50]
The Commission strongly disputes that the extension order will
“immunise” it against challenges to the outcome of the
2019 elections and in particular whether those results will be free
and fair. The only real prejudice would be to local government
elections – but the extension will expire well before these.
[51]
During oral argument, the Commission accommodated itself to
the IFP suggestion for a longer conditional extension (subject to an
obligation on its part to flag address-less voters and to require
them to supply addresses on voting day so as to enable checks
by
participating parties). The Commission conceded that embracing
the IFP proposal did not exclude its being subjected to
the shorter
deadline the DA proposed.
Assessment
[52]
Is it just and equitable to grant the Commission the extension
it seeks until November 2019? The main effect of that
extension,
and the Commission’s main objective in seeking it,
would be to bar pure address-based challenges to the 2019 elections.
The Commission strenuously contested the imputation that it wanted to
immunise the 2019 elections against free-and-fair type challenges
deriving in general from absent addresses. It emphasised that
only challenges based on the
mere absence
of addresses would
be precluded. Yet it is undeniable that granting the extension
it seeks would have just that effect.
[53]
Counsel for the IFP rightly pointed out that it is impossible
to anticipate the precise nature of an address-based challenge.
It might be based on a particular locality, or have a far wider
ambit. The nature of the shadow absent addresses may cast
on
whether an election was free and fair could also vary. Bussing
is one instance. Another is the possibility of voter
fraud by
duplicate or multiple registration. It is correct that the
Commission has controls in place, through identity numbers
and other
mechanisms, to preclude this.
[54]
Nevertheless, the national identification number system is
known not to be fail proof. A substantial number of
address-less
voters – still nearly one-fifth of those on the
roll – undoubtedly conduces to these spectres. That is
why tying
each registered voter, by residence, to a precise location
reduces this danger.
[55]
What is more, the Commission conceded that it sought the
extension for the very purpose of forestalling legitimacy-denting
challenges.
But, as was rightly pointed out, this rationale
boomerangs. For the mere grant of an order that suspends the
Commission’s
duties in address-collection to beyond the 2019
election, and thus bars address-based free-and-fair challenges, would
itself have
a legitimacy-impairing effect. Muzzling
address-based voters’ roll challenges – even wrong-headed
challenges
– would not help convince the public that elections
are free and fair.
[56]
The Commission accepted during argument that granting only a
shorter extension would be seen to impel it to focus its energies.
But it flatly asserted that the current 18% shortfall in registered
voters’ addresses will not be much reduced before the
2019
elections. It insisted that the signal success it had attained
after
Mhlope
could not be replicated without another voting
day. For this reason, while it embraced the IFP proposal, it
was reluctant
to accept the DA proposal of a short pre-election
extension to before 22 March 2019; although it conceded that the two
were not
incompatible.
[57]
What then is just and equitable, on all the facts, bearing in
mind the high values at stake? Should we grant the Commission
a
short extension – some four months, or less, beyond the date of
this judgment, so that we can then reconsider its plea
for a further
extension? That is feasible. But other considerations
counter-indicate so short an extension. Two
conclusions seem
evident from the Commission’s reports. The first is that
voter-harvesting weekends are enormously
costly and have not yielded
significant improvements in additional address-collection. This
is because, as the Commission
points out, without an upcoming
election, voters who are already registered are not incentivised to
update their address details.
[58]
The second conclusion is that the big post-
Mhlope
break-through in address collection came from voting day in the
2016 local government elections. There, the Commission
succeeded in doubling the number of voters registered with adequate
addresses. Instead of having to entice voters to report
at
temporary stations for the sole purpose of stumping up their
addresses, this is achieved when the voter arrives at a voting
station to vote. The exercise of the franchise provides the
inducement to the voter to arrive and provide address details.
This
eliminates the separate cost and effort of a massive national
address-garnering apparatus.
[59]
This is not to say that from the point of view of
address-collecting the voter registration weekend the Commission
envisages for
March 2019 will be pointless.
[55]
On the contrary, the impending 2019 elections will sweeten trips to
the Commission’s registration stations, which may
entice those
already registered without addresses to pony up their addresses.
So, while the Commission continues to register
unregistered voters,
particularly young first-time voters, it must be recognised that the
additional objective of garnering addresses
or better addresses from
already-registered voters is, on the evidence before us, much harder
to achieve. This points away
from a short pre election
extension.
[60]
At the hearing, counsel for the Commission referred to updated
figures on addresses. This evoked the ire of the independent
candidates. They complained that this was not the proper way to
tender evidence. The Commission then agreed to prepare
and file
an affidavit, which it did. Consistent with the theme of the
updates filed after the Commission’s second report
to this
Court, the new affidavit shows that there has been only incremental
improvement in the updating of the addresses. It
does not,
therefore, affect the crux of the present debate before this Court.
[61]
A further consideration, though not determinative, is the
burden and cost of a further hearing. The oral hearing of this
application
involved eight counsel representing the parties, together
with their instructing attorneys, party office-bearers, individual
supporters
and Commission officials. Preparation for the
hearing produced a substantial mass of affidavits and multiple sets
of written
argument. In short, a lawyers’ fest. The
hearing proved helpful. But will the re-elaboration of the
entire
process in four or five months be warranted? It may be
questioned.
[62]
A means to avoid the disadvantages of a short deadline while
reducing the perils of a longer extension appears to lie in the IFP’s
proposal. This is to leave the door open to a pre-election
hearing, while granting a longer extension that spans the 2019
elections, but to subject that extension to conditions. This
will (a) minimise the risk of fraud on voting day; and (b) leave
the
door open for election challenges arising from fraudulent or fake
addresses.
[63]
The critical day is 22 March 2019. Any party or person
should be able to apply to set the matter down, before or after that,
on supplemented or new papers. In addition, the Commission
should be ordered to file reports two-monthly, on 31 January
2019, 31 March 2019 and thereafter. This will, if need be,
enable the Court of its own initiative to set the matter down.
[64]
The Commission in argument accommodated itself to the IFP’s
proposal. The conditions superimposed on that proposal will
ensure that continuing urgency is demanded of the Commission in its
statutory task of address-collection. Scrutiny of its
methods
and their results will continue unabated. And the door is left
open, should the need arise, for these parties, or
any others, to
come earlier to this Court, for variation or revocation of the
conditions set out in the order.
Costs
[65]
The Commission asked the Court not to order costs against it,
on the premise that it has not behaved unreasonably.
[56]
Its premise is correct, but there seems to be no reason on the facts
here why reasonable behaviour on its part should leave
the parties
who participated in the proceedings out of pocket. This is
particularly so since all those represented contributed
materially to
the just and equitable solution of the predicament in which the
Commission finds itself.
Order
[66]
The following order is made:
1. The declaration of invalidity in paragraph 5 of
Electoral
Commission v Mhlope
2016 (5) SA 1
(CC) is further suspended until
30 November 2019.
2. The suspension is subject to the following conditions:
(a)
The Electoral Commission must by 30 November 2019 have obtained and
recorded on the national common voters’ roll all addresses
that
were reasonably available as at 17 December 2003;
(b)
The Electoral Commission must furnish reports to this Court on 31
January 2019, 31 March 2019, 31 May 2019, 31 July
2019 and
30 September 2019 setting out:
(i) the number of outstanding post-December 2003 addresses of
registered voters it has obtained since its previous report and
recorded on the national common voters’ roll;
(ii) the number of post-December 2003 addresses still outstanding;
(iii) the steps taken and to be taken to obtain these addresses; and
(iv) any other matter it may consider necessary to report on.
(c)
In these reports, the Electoral Commission must set out a means by
which it proposes to—
(i) indicate clearly on the voters’ roll which voters have
incomplete, inadequate or no addresses;
(ii) require voters with incomplete, inadequate or no addresses who
wish to vote to supply their addresses before voting on voting
day;
and
(iii) enable political parties to access and scrutinise the addresses
and any other details supplied in this way.
(d)
Any party or person is afforded leave to approach the Court on new or
supplemented papers to set this matter down on good cause
for further
argument.
(e)
The Electoral Commission is ordered to pay the costs incurred in
these proceedings by the Democratic Alliance, the Inkatha Freedom
Party and Mr Aaron Pasela Mhlope and Ms Johanna Xaba,
including the costs of two counsel.
THERON J (Petse AJ
concurring):
Introduction
[67]
I have read the first judgment by Cameron J and cannot agree
that this Court’s power, under section 172(1)(b)(ii) of the
Constitution,
to make a just and equitable order (in this case a
further suspension of the declaration of invalidity) is invoked. The
Commission
has, during the period of suspension (14 June 2016
until 30 June 2018) acted reasonably in its attempts to
obtain and record all reasonably
available
addresses. The unlawful conduct which formed the basis of this
Court’s declaration of invalidity has
been remedied.
[68]
The background to this application has been eloquently set out
in the first judgment and bears no repeating. The relief sought
by the Commission is extraordinary.
[57]
At its core, the question that arises is whether this Court should
grant the Commission this extension. This is not
a novel
question but one this Court has had to deal with repeatedly in the
past. This Court has, in its jurisprudence, established
principles which guide the exercise of our just and equitable powers
under section 167 of the Constitution.
[58]
Principles
[69]
The power to extend the suspension of an order of invalidity
flows from this Court’s broader power to make an order that is
just and equitable.
[59]
Though the overarching consideration in exercising this power is the
interests of justice, this Court has repeatedly stated
that
extensions should be granted with great caution and “not be
granted simply as a matter of course or at the last minute”.
[60]
[70]
There are certain factors that must be considered in
determining whether to grant an extension. These are—
(a) the sufficiency of the explanation provided for failing to comply
with the original (or extended) period of suspension;
(b) the potential prejudice that is likely to follow if an extension
is or is not granted;
(c) the prospects of curing the constitutional defects within the new
deadline or, more generally, the prospects of complying with
the
deadline;
(d) the need to bring finality to litigation; and
(e) the need to promote the constitutional project and ensure
effective state administration.
[61]
These factors must
be weighed and balanced to craft an order which is “just and
equitable”.
[71]
In this matter, the following factors are of particular
importance:
(a) The prospects of complying with the deadline.
(b) The potential prejudice that is likely to follow if an extension
is or is not granted.
(c) The need to promote the constitutional project.
I will deal with
each in turn.
Prospects of
compliance
[72]
It is necessary to assess first the extent of the Commission’s
compliance with the
Mhlope
order before determining whether
there are prospects of reaching compliance if an extension is
granted.
[73]
In
Mhlope
it was held that “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”.
Mogoeng CJ, for the majority,
elaborated on the specific invalidity that was being suspended as
“[t]he 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”.
[62]
The purpose of the suspension was to allow the August 2016 local
government elections to proceed and to afford the Commission
an
opportunity to comply with its obligation to obtain and record all
reasonably available addresses as at 17 December 2003.
[63]
The question is whether the Commission has now met this obligation to
obtain all reasonably available addresses and complied
with the
Mhlope
order. If it has not, the question is how far it
is from doing so.
Available
addresses
[74]
In terms of section 16(3) of the Electoral Act, the Commission
is obliged to include in the voters’ roll, “the addresses
of voters, where such addresses are available”. The
obligation to include addresses is limited to addresses that are
available. The criterion to determine availability is objective
and “reasonableness, as in other spheres of law, is
that
objective criterion”.
[64]
Mogoeng CJ, in
Mhlope
, concluded that “available”
in the context of section 16(3) means addresses that are objectively
or reasonably available.
[65]
[75]
The duty imposed on the Commission in terms of section 16(3)
of the Electoral Act is a limited one. It must obtain and
record
available
addresses. The duty is not to record
existing addresses.
[66]
It is necessary to limit the obligation in this way because in the
South African context, rural and informal living conditions
mean that
millions of voters do not have recordable addresses.
[67]
An unqualified obligation to record the addresses of every voter
would not be capable of being fulfilled. Mogoeng CJ,
in
Mhlope
, cautioned that near-impossible obligations should not
be imposed on organs of state and other institutions:
“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.”
[68]
[76]
Jafta J neatly sets out why Parliament limited the obligation
on the Commission to available addresses as opposed to existing
addresses.
Jafta J put the matter thus:
“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’.
. . .
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.
”
[69]
(Emphasis added.)
[77]
Addresses that are difficult, if not impossible, despite
reasonable efforts, to obtain (like addresses of voters in some
villages
and informal settlements or voters who have passed away
after 2003, or even those who do not wish to vote or furnish their
addresses
to the Commission),
[70]
would not be available for the purpose of section 16(3).
[71]
It is in these circumstances that paragraph 6.2 of the
Mhlope
order deliberately limited the obligation on the Commission, by
stipulating that it must, by 30 June 2018, obtain and
record all addresses that were
reasonably
available at
17 December 2003. It is against this legal background that
the Commission’s compliance with that order
must be measured.
Has the
Commission complied with the Mhlope order?
[78]
Has the Commission, within the allocated time frame
(14 June 2016 to 30 June 2018), taken all
reasonable steps
to obtain and record all addresses that were
available at 17 December 2003? The first judgment’s
assertion that the
Commission accepted that it had not been able to
comply with the
Mhlope
order is not, strictly speaking correct
but little turns on this.
[72]
[79]
Ordinarily, a court accepts legal concessions made by parties,
but only to the extent that it is satisfied that the concession was
properly made.
[73]
It is trite that no court is bound by concessions which are wrong in
law.
[74]
Parties regularly make concessions before this Court but that does
not bar a court from interrogating the correctness of
those
concessions. A court must bring its own assessment to bear on a
legal issue.
[75]
In
Matatiele
, Ngcobo J, writing for the majority, said that if
this Court was bound to accept concessions which are wrong in law it
would lead
to the intolerable situation where it would be bound by a
mistake of law on the part of a litigant and precluded from giving
the
right decision merely as a result of an error of law on the part
of a party.
[76]
He explained the consequence of this:
“The result would be the certification of law or conduct as
consistent with the Constitution when the law or conduct in fact
is
inconsistent with the Constitution. This would be contrary to
the provisions of section 2 of the Constitution which provides
that
the ‘Constitution is the supreme law of the Republic; law or
conduct inconsistent with it is invalid.’”
[77]
[80]
In
Gwadiso
, Petse ADJP relied on
Matatiele
to
find that:
“Although this dictum has more to do with a legal concession it
seems to me that by parity of reasoning it applies with equal
force
in a situation such as the present in which counsel made a concession
as a consequence of his erroneous view in relation
to the facts of
the matter.”
[78]
The erroneous view
which the Commission appears to have been labouring under in this
matter is discussed in detail in paras 84 to
85 below.
[81]
A court can, in certain circumstances, disregard concessions
made on behalf of a party during a hearing.
[79]
In
Saayman
, the Supreme Court of Appeal explained that legal
representatives may make concessions for a variety of reasons and
possibly without
intending to commit the client or limit the issues:
“The statement [or concession] in question may, for example, be
used as an assumption on which to found an argument or be
made in a
bona fide spirit of fairness intending to convey to the court
counsel’s candid view of the way the court should
proceed.
In the absence of formality the context must necessarily be decisive
of whether an admission has been made.”
[80]
[82]
In this matter, regard must be had to the context in which the
submission was made by counsel for the Commission that the Commission
was “very close” to complying with the
Mhlope
order. First, the additional measures which the Commission
seeks to take will only be available to it after the expiry of
the
period of suspension. Second, the Commission has done all it
reasonably can, during the period of suspension, to comply
with the
order.
[83]
In any event, this Court is, by virtue of its duty to uphold
the rule of law, obliged to assess whether the Commission has
complied
with its obligations in terms of the
Mhlope
order.
[81]
In conducting this assessment, this Court must be cautious to avoid
directing the Commission to do more than what section
16(3) actually
required. This was noted by Mogoeng CJ in
Mhlope
:
“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.
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.”
[82]
(Footnotes omitted.)
[84]
It is of some significance that in its founding affidavit, the
Commission sets out the details of the
Mhlope
order and
immediately thereafter avers that “[t]he Commission duly
complied with the orders”. It would appear
that, to some
extent, the Commission has misconceived its obligations in terms of
the
Mhlope
order. The Commission’s founding
affidavit is replete with references to “missing addresses”
as opposed
to “reasonably available” addresses (the
terminology used in the
Mhlope
order). A greater
emphasis has been placed on the missing addresses. It can
reasonably be inferred from the following
extracts of its founding
affidavit that any number of missing addresses would be of concern to
the Commission:
“The purpose of this application. . . [is to] allow the
Commission to take further steps to seek to further reduce the number
of voters for whom it has missing, generic or incomplete addresses.”
“The Commission therefore needs more time … to see if
the number of registered voters without addresses cannot be
significantly reduced.”
“The Commission has made great strides in its efforts to
improve the number and quality of the addresses on the common voters’
roll. However . . . the Commission requires more time so that
it can do more in this regard.”
“While the significant improvements in the position are
welcome, what is clear is that, when the suspension of invalidity
granted by this Court comes to an end on 30 June 2018, there
will still be a material number of registered voters for whom
the
Commission will not yet have addresses in compliance with sections
8(3) and 16(3) of the Electoral Act.”
“[E]ven if the number of missing addresses were reduced to 1%
of the registered voters, this would still mean over 250 000
voters
were affected. The question which then arises is what steps the
Commission should take in relation to those voters
without addresses
on the national common voters’ roll.”
[85]
It is clear from these passages that the Commission’s
application for an extension of the suspension of invalidity is
predicated
on a desire to significantly reduce the number of
registered voters without addresses. It seems to be labouring
under the
misapprehension that as long as there are missing
addresses, it has not fully complied with the
Mhlope
order and
should be allowed more time to fulfil its obligations under the
Electoral Act and the
Mhlope
order.
[86]
In a similar vein, the Commission alleged that granting the
extension would effectively enable the Commission “to collect
and record further addresses during the run up to the 2019 national
and provincial elections and the elections themselves.”
The Commission has further alleged that there is nothing more it can
do until 2019, to reduce the number of missing or incomplete
addresses.
[87]
At the hearing the main submissions made on behalf of the
Commission were that
(a) the Commission had implemented a host of endeavours, at great
cost, in order to comply with the
Mhlope
order;
(b) the most effective yield of addresses are general registration
weekends held ahead of elections and the elections themselves;
(c) the Commission had done all it could, within the period of
suspension, to collect all reasonably available addresses.
There is more it can do, in the event that the period of suspension
is extended; and
(d) in approaching this Court for an extension the Commission had
adopted a cautious approach and would be satisfied with a finding
that it has complied with the
Mhlope
order.
[88]
In response to a question from the presiding judge as to
whether there was a dispute of fact about the allegation made by the
Commission
that it has done all it could to collect available
addresses during the period of suspension, counsel for the Commission
replied
in the negative. There was no dispute of fact about the
various steps taken by the Commission, but there was instead a
dispute
as to whether the Commission has behaved reasonably.
Put differently, he submitted that there was no dispute of fact, but
a dispute about the conclusion to be reached from the facts.
[89]
The submission was advanced that the bold contention by the DA
and the IFP that the Commission had not behaved reasonably, could
not, in the absence of clear examples as to what it could and should
have done differently, be sustained. In support of the
contention that it had behaved reasonably, the Commission placed
reliance on this Court’s decision in
Rail Commuters Action
Group
where it was stated:
“The standard of reasonableness requires the conduct . . . to
fall within the range of possible conduct that a reasonable
decision-maker in the circumstances would have adopted. In
assessing the reasonableness of conduct, therefore, the context
within which decisions are made is of fundamental importance.
Furthermore, a court must be careful not to usurp the proper
role of
the decision-maker.”
[83]
(Footnotes omitted.)
The steps taken by
the Commission have had varying degrees of success. What is
abundantly clear is that the Commission has
made extensive efforts
and spent substantial resources to comply with this Court's order.
[90]
While certain of the political parties take a different view
as to what precise steps the Commission should or should not have
taken,
it emerged that those suggested steps had already been taken.
The DA initially contended that the Commission could have taken
steps
such as setting up call centres, however, it became apparent that the
Commission has already taken these steps. The
IFP’s
suggestion of a two envelope system and collecting addresses on
voting day has previously been adopted by the Commission
but in
any event these are steps that can only be taken next year.
[91]
In the written submissions filed on behalf of the Commission
it is recorded:
“The regrettable reality is that, to a large extent, the
Commission's ability to obtain the outstanding addresses is dependent
on voters coming forward to provide or verify their registration
details.”
In light of this,
there is no question that the Commission has taken reasonable steps
to comply with this Court's order.
[92]
The
Mhlope
order obliges the Commission to obtain and
record all “reasonably available” addresses. It
does not mean, as
the Commission believes, that it must obtain and
record 100% of the addresses of registered voters in preparation of
the voter’s
roll. Nor does it mean the Commission’s
obligation is to obtain all existing addresses. Neither does it
mean
that the addresses must be captured with sufficient specificity
to, for example, be geo-coded or digitally mapped.
[84]
The Commission’s compliance with the
Mhlope
order is not
attached or measured by a magic number of addresses being obtained
but rather by whether the Commission has taken
sufficient steps to
obtain all those addresses that are “reasonably available”.
[93]
The Commission’s misconception about the extent of its
obligations under the
Mhlope
order has crept into the first
judgment. The first judgment begins with the premise that the
Mhlope
order requires the Commission to obtain addresses for
every
voter, stating: “registering every voter and
ensuring that every voter, once registered, is conjoined with a place
of residence.
That is the task
Mhlope
set the
Commission”. The first judgment states that there are
addresses “available” to the Commission
but the
Commission’s efforts thus far have been inadequate to obtain
them.
[85]
However, none of the “efforts” the Commission intends to
undertake in the event that the suspension is granted,
could have
been undertaken during the period of suspension. This much is
recognised in the first judgment’s arguments
against a
pre-election extension.
[86]
[94]
In my view, the obligation imposed on the Commission in terms
of the
Mhlope
order must be interpreted with regard to the
purpose of the suspension and the time frame afforded to cure the
defect. The
purpose of the suspension was twofold: it was to
allow the August 2016 local government elections to proceed and to
afford the
Commission an opportunity to comply with its obligation to
obtain and record all reasonably available addresses as at 17
December
2003. The
Mhlope
order compelled the Commission
to obtain and record all addresses that were reasonably available.
It was afforded a period
of slightly in excess of two years, from
date of judgment, 14 June 2016 to 30 June 2018, to fulfil
this obligation.
The concept of reasonableness should be
interpreted in light of the time frame stipulated in the order.
[95]
The temporal constraints on steps being taken are critical.
The thrust of the Commission’s case is that it has taken
almost
every conceivable step it can for the time being. It is not the
Commission’s case that it has not acted reasonably
or that it
has not obtained all reasonably available addresses but rather, that
there is more it can do in the future. Nowhere
did the
Commission indicate, either in its written or oral submissions, that
there were steps it could have taken, up to 30 June
2018, to obtain
and record available addresses, and did not take.
[96]
It is common cause that the run up to the 2019 elections –
and the election itself – is when the Commission will
be
able to obtain additional addresses. From the allegations made
in the papers and the submissions made at the hearing,
there seems to
be little more that the Commission can do until March 2019 to obtain
these addresses. Put differently, additional
addresses will
only be available to the Commission in the run up to the 2019
elections. Whilst collecting addresses during
future voter
registration weekends and on voting days may allow for more addresses
to be collected, it cannot be said that those
addresses are
reasonably available now or were reasonably available at 30 June
2018.
[97]
At the time of the hearing of
Mhlope
, 66% of registered
voters had incomplete addresses, generic addresses or missing
addresses on the voters’ roll. By
May 2018, the
Commission had succeeded in reducing this figure to 21% of registered
voters. The Commission readily conceded
in its papers that this
figure in fact overstates the remaining extent of the problem.
[98]
At the hearing of this matter counsel for the Commission
informed the Court that, as at that date, the percentage of voters
with
missing addresses had been reduced to 18%. On 27 September
2018, following directions issued by the Chief Justice, the
Commission
filed a supplementary affidavit which confirmed that 82.2%
of the addresses on the voters’ roll were complete,
[87]
0.3% of the addresses were “REC AS” addresses
[88]
and a further 11% of the addresses were incomplete or generic.
[89]
In other words, over 93% of all voters on the roll have some
address. It is only 6% of registered voters on the roll
that
are entirely without addresses.
[99]
The Commission has in fact erred on the side of caution when
calculating the percentage of registered voters with incomplete,
generic
or missing addresses. The Commission has alleged that a
proportion of the addresses counted as incomplete or generic is
sufficient
to allow the Commission to place the voters concerned in
the relevant voting district in terms of section 8(3) of the
Electoral
Act. The Commission has further explained that a
significant proportion of these voters with
incomplete / generic / missing
addresses are in
fact voters that registered prior to 17 December 2003.
These pre-December 2003 voters were not required
by law to have their
addresses recorded.
[90]
Of the 2.2 million voters on the voters’ roll without any
address, only 1.3 million are post-December 2003 registrations.
It is important to note that according to the Commission, once the
capturing process is complete, there will be a total of 1 299 263
post-December 2003 registered voters without any recorded addresses,
which represents 4.9% of all registered voters as at 8 May 2018.
[100]
It is useful to recall what the state of affairs was at the
time of the
Mhlope
order. The voters’ roll
that was produced shortly before the 2016 elections was, in no
uncertain terms, woefully
defective containing a measly 34% of
addresses of registered voters. The source of this defect was
twofold: first, the Commission’s
failure to record addresses
and second, the Commission’s failure to obtain the addresses it
was required to in terms of
Kham
. This was not,
per
se
, an intentional failure but rather one that arose from the
Commission’s misunderstanding of which addresses fell within
the
obligations imposed by section 16(3) of the Electoral Act.
[101]
The Appellate Division in
Maharaj
determined the test
for substantial compliance. Van Winsen AJA, writing for the
Court, stated:
“The enquiry, I suggest, is not so much whether there has been
‘exact’, ‘adequate’ or ‘substantial’
compliance with this injunction but rather whether there has been
compliance therewith. This enquiry postulates an application
of
the injunction to the facts and a resultant comparison between what
the position is and what, according to the requirements
of the
injunction, it ought to be. It is quite conceivable that a
Court might hold that, even though the position as it is
not
identical with what it ought to be, the injunction has nevertheless
been complied with. In deciding whether there has
been a
compliance with the injunction the object sought to be achieved by
the injunction and the question of whether this object
has been
achieved are of importance.”
[91]
[102]
The first question to be answered is whether the Commission
has complied with the
Mhlope
order. The failure to
achieve exact, complete, ideal or 100% compliance does not
necessarily mean that there has been non-compliance.
The
undisputed evidence is that, following the
Mhlope
decision,
the Commission has been obtaining and recording the addresses of
voters who are both re-registering and registering for
the first
time. Currently, 82% of registered voters have complete
addresses. There was also no serious factual dispute
about
whether the Commission has, during the period of the suspension of
the declaration of invalidity, behaved reasonably in its
attempts to
comply with the order to obtain all readily available addresses.
[103]
In my view, the evidence presented has demonstrated that the
Commission has taken all reasonable steps available to it and has, in
the process, obtained and recorded all the addresses which were
reasonably available as at 30 June 2018. For this reason,
I
find that the Commission has complied with the
Mhlope
order.
[104]
The second question is whether the purpose of the order has
been achieved. The obligation imposed on the Commission in
terms
of the
Mhlope
order must be interpreted with regard to
the purpose of the suspension and the time frame afforded to cure the
defect. The
purpose of the suspension was two-fold: it was to
allow the August 2016 local government elections to proceed and to
afford the
Commission an opportunity to comply with its obligation to
obtain and record all reasonably available addresses as at 17
December
2003.
[92]
The
Mhlope
order compelled the Commission to obtain and record
all addresses that were reasonably available.
[105]
The purpose of the extension has been met. The August
2016 local government elections were held and the Commission has
complied
with its obligation to obtain and record all reasonably
available addresses.
[106]
In light of this, is an extension necessary? In brief,
no. There is little point in granting an extension in order for
the Commission to comply with its obligations if it has already done
so. For completeness, I will deal with the two additional
factors which militate against granting the extension.
Potential
prejudice if extension is not granted
[107]
In
Mhlope
, the Chief Justice was at pains to ensure
that “[e]very constitutionally permissible solution [is]
explored to avert a looming
constitutional crisis” of not being
able to conduct municipal elections.
[93]
It was in this context that the Chief Justice concluded that a just
and equitable order is one that would allow for the August
elections
to be held despite the fact that the voters’ roll was the
product of unlawful conduct.
[94]
[108]
The Chief Justice justified the suspension of the invalidation
of the Commission’s unlawful conduct (the production of a
voters’
roll that does not comply with section 16(3)) in
the following terms:
“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.”
[95]
[109]
In
Mhlope,
the suspension of the declaration of
invalidity was granted on the basis that it was an exceptional case
which required an exceptional
solution in order to avoid a
constitutional crisis. The constitutional crisis sought to be
avoided was the very real likelihood
that there would be no elections
if the relief sought was not granted. At the time, the
Commission would have been unable
to certify the voters’ roll
because of 12.2 million (about 66%) missing addresses. Without
a certified voters’
roll, there would have been no
elections.
[96]
[110]
What is the looming threat here if the extension of the
suspension of declaration of invalidity is not granted? It was
not
the Commission’s case – nor any of the other parties’
– that no elections would take place next year if
the extension
of the suspension was not granted. According to the Commission,
the looming danger in this Court not granting
the extension is that
any party dissatisfied with the outcome of the 2019 electoral results
may
seek to challenge the outcome of the elections and ground
this challenge on the missing or incomplete addresses.
[97]
These, according to the Commission, now amount to about 17%,
missing addresses being 6% and incomplete addresses constituting
11%.
This is no constitutional crisis of the kind envisaged in
Mhlope
. In fact, it is in real terms, not a crisis at
all. The Commission’s motive, in approaching this Court
for relief,
is its wish to play it safe. The Commission’s
fear of a possible challenge is based on pure speculation.
[111]
Furthermore, the argument advanced on behalf of the Commission
over emphasises the value of the missing addresses. The
concept of free and fair elections is an embodiment of much more than
the availability of addresses in the voters’ roll.
[98]
A voters’ roll with missing addresses may potentially
pose a threat to the fairness and freeness of an election, but
this
does not mean that elections held in terms of such a roll are,
without more, not free and fair.
[99]
In
Mhlope,
this Court cautioned against the approach adopted
by the Commission:
“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.”
[100]
[112]
In
Mhlope
the reality that many poor and
disenfranchised South Africans are unable to provide addresses
specifically because of their
socio-economic status and informal
living conditions was recognised. The addresses of individuals
living in villages and
informal settlements – without
recordable addresses – will likely never be captured with
sufficient specificity.
These are, at the core, the addresses
not reasonably available.
[101]
[113]
It would be remiss not to acknowledge that capturing addresses
on the voters’ roll allows candidates to canvass more
effectively
and is a step in preventing fraud. I must however
stress that generally, missing addresses are not what determine
whether
an election is free and fair. To positively state
otherwise would be to effectively disenfranchise the democratic
agency
of the poorest and most vulnerable South Africans, whose
rights are in the most need of protection. The over-emphasis
of
the address requirement and the implementation of systems such as the
two envelope system
[102]
have the potential to make the votes of individuals living in
villages and informal settlements more susceptible to challenge than
other votes.
[114]
It is not insignificant that the Commission had, in
Mhlope
,
sought the same relief it is seeking in this matter. It had
sought a suspension of the declaration of invalidity until 30
June
2020 and this was refused by this Court. In its papers, the
Commission indicated that it required until November 2019
to complete
the implementation of an eight phase plan which included, among
others, the creation of a database with addresses linked
to identity
numbers, a notification process in terms of section 12 of the
Electoral Act, two “address furnishing weekends”
in
October 2018 and February 2019 as well as a targeted
communication campaign. The reasons for the refusal of a four
year suspension appears from the following paragraphs of the judgment
of Madlanga J:
“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.
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.”
[103]
[115]
The
Mhlope
order was clear in restricting the extension
to June 2018, specifically to exclude the 2019 national and
provincial elections.
Thus, it cannot be said that the purpose
of the suspension was to allow the Commission to use the run up to
those elections to
collect addresses. It follows that this
Court in
Mhlope
, did not consider the collection of those
addresses which the Commission could only obtain from March next year
to be a part of
the obligation it had imposed. Had the Court
intended that, it would have granted the suspension to include those
elections,
or at least the run up to the elections.
[116]
Once it is found that the
Mhlope
order has been
complied with, the unlawful conduct on the part of the Commission
which formed the basis of the declaration of invalidity
has been
“cured”. In these circumstances there would be no
basis for this Court to further suspend the declaration
of
invalidity. In
Executive Council,
this Court
explained that the effect of an order suspending a declaration of
invalidity is akin to a resolutive condition:
“Section 98(5) permits this Court to put Parliament on terms to
correct the defect in an invalid law within a prescribed
time. If
exercised, this power has the effect of making the declaration of
invalidity subject to a resolutive condition.
If the matter is
rectified, the declaration falls away and what was done in terms of
the law is given validity. If
not, the declaration of
invalidity takes place at the expiry of the prescribed period and the
normal consequences attaching to
such a declaration ensue.”
[104]
[117]
By parity of reasoning, once the obligations imposed by a
remedial order coupled to a declaration of invalidity are complied
with,
the constitutionally invalid conduct is cured and the
declaration of invalidity falls away. Thus, the object of the
suspension
no longer exists and there is no need for a further
suspension. The Commission’s compliance with the
Mhlope
order has the result that the declaration of invalidity falls away.
There is thus no basis upon which the extension of the
suspension can
be granted.
Imposition of
conditions and the constitutional project
[118]
One of the factors to be considered in an application for an
extension of a declaration of invalidity is the need to promote the
constitutional project. How does the imposition of conditions
relate to this factor?
[119]
The first judgment seeks to grant the extension subject to the
imposition of a range of conditions on the Commission in the run up
to the elections. In brief, these conditions consist of
requiring the Commission to file reports every two months which would
outline the details of missing addresses and how the Commission will
(i) indicate which voters have addresses missing; (ii)
require
voters to provide addresses before voting; and (iii) enable political
parties to scrutinise the addresses and other details
supplied in
this matter. The first judgment also leaves the door open for a
person to approach this Court and set this matter
down, presumably to
impose further conditions.
[120]
It is unclear why there is a need for this Court to impose any
conditions on the Commission and how the conditions proposed do
anything
further to ameliorate the alleged difficulties that arise
with incomplete addresses. In essence, these conditions, save
for
(ii), codify what the Commission already does and has, among
others, undertaken to do in the next election cycle. The
condition
imposed in para 2(c)(ii) of the first judgment’s
order is the potential disenfranchisement of the two envelope system
made
actual in that it imposes a requirement of address provision
prior to voting.
[121]
The potential for disenfranchisement that arises from imposing
conditions on voting was recognised by Madlanga J in
Mhlope
:
“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?”
[105]
[122]
Madlanga J went on to highlight further difficulties with
compelling collection of addresses on voting day:
“
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 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.
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.”
[106]
[123]
This Court should be careful about imposing conditions on or
prescribing how the Commission should run elections. Whilst
well-intended,
a condition imposed may have the inadvertent effect of
hindering a voter’s rights rather than realising them.
The Commission
has an understanding, based on past elections, of what
methods and systems work for the elections. It should be left
to use
this expertise and knowledge to run the elections as best it
knows how.
[124]
In his minority judgment, Jafta J highlighted the untenable
consequences of making elections contingent upon the completeness of
addresses:
“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.
. . .
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.
. . .
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.”
[107]
[125]
The importance of the electoral process cannot be overstated.
The right of every citizen to vote lies at the core of our
democracy:
“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.”
[108]
[126]
However, a necessary antecedent to the realisation of the
right to vote is a legitimate, free and fair election process.
The
right to vote and the legitimacy of this process lie at the heart
of our constitutional project.
[127]
As the first judgment correctly notes:
“What is more, the Commission conceded that it sought the
extension for the very purpose of forestalling legitimacy-denting
challenges. But, as was rightly pointed out, this rationale
boomerangs. For the mere grant of an order that suspends
the
Commission’s duties in address-collection to beyond the 2019
election, and thus bars address-based free-and-fair challenges,
would
itself have a legitimacy-impairing effect.
Muzzling
address-based voters’ roll challenges – even wrong-headed
challenges – would not help convince the public
that the
elections were free and fair.
”
[109]
(Emphasis added.)
[128]
Yet, this “legitimacy-impairing effect” is exactly
what will result from an extension, more so from an extension which
imposes conditions that interfere with and constrain the manner in
which the Commission conducts elections. The Commission
is
required to be independent, not just of the Executive and Legislative
arms of government, but wholly independent. For
this Court to
dictate the manner in which elections ought to be conducted in the
future undermines the Commission’s ability
to, independently,
ensure that elections are free and fair.
[129]
That is not to say that elections should occur without any
regard for the law and obligations imposed on the Commission by
legislation
and the courts. Previously, these obligations have
resulted from reactive challenges where concrete evidence of material
irregularity has been presented. Here, we are exercising our
powers in the air without any understanding of what might result.
Nothing good can come of such an exercise.
[130]
South Africa’s democracy and electoral system are robust
enough to withstand a challenge to the voters’ roll. Where
the challenge fails, our electoral system will be invigorated by
confirmation that its systems operate to prevent irregularities.
Where the challenge succeeds, our electoral system is
invigorated by the knowledge that irregularities will come to light
and be dealt with in a manner that ensures the integrity of our
elections.
Conclusion
[131]
The Commission has, during the period of suspension from
14 June 2016 until 30 June 2018, complied with its
obligation,
in terms of the
Mhlope
order, to obtain and record
all reasonably available addresses. There is no justification
or need for the extension of suspension
sought.
[132]
For these reasons, I would dismiss the application.
For the
Applicant:
S Budlender and N Luthuli instructed by Gildenhuys Malatji Inc.
For the Fourth
Respondent:
A Katz SC and K Pillay instructed by Minde Schapiro & Smith Inc.
For the Sixth
Respondent:
K J Kemp SC and S Pudifin-Jones instructed by Lourens De Klerk
Attorneys.
For Mr Mhlope and Ms
Xaba:
M G Roberts SC and E Roberts instructed by Moolman & Pienaar
Incorporated.
[1]
An independent state institution supporting constitutional democracy
under Chapter 9 of the Constitution, established under section
181(1)(f) and sections 190-1 of the Constitution, and functioning in
terms of the Electoral Act 73 of 1998 (Electoral Act).
Section
190(1) provides that t
he Commission must manage
local, provincial and national elections, ensure that the elections
are free and fair, and declare election
results. The
Commission’s further powers and functions are prescribed in
the Electoral Commission Act 51 of
1996 (Commission Act), which
is legislation required by section 190(2) of the Constitution.
[2]
Electoral Commission v Mhlope
[2016] ZACC 15
;
2016 (5) SA 1
(CC);
2016 (8) BCLR 987
(CC) (
Mhlope
). So far relevant
now, the
Mhlope
order read:
“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.”
[3]
Section 1 of the Constitution, which is in Chapter 1 (Founding
Provisions) reads:
“The Republic of South Africa is one, sovereign, democratic
state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement
of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the [C]onstitution and the rule of law.
(d) Universal adult suffrage, a national common voters’ roll,
regular elections and a multi-party system of democratic
government,
to ensure accountability, responsiveness and openness.”
[4]
34 of 2003. Section 5 of this statute introduced two new
subsections, section 16(3) and (4), into the
Electoral Act
.
[5]
See
Mhlope
above n 2 at paras 117 and 134.
[6]
See [24] to [27] below.
[7]
Zondi v Member of the Executive Council for
Traditional and Local Government Affairs
[2005]
ZACC 18
;
2006 (3) SA 1
(CC);
2006 (3) BCLR 423
(CC) at paras 45-6.
[8]
Minister of Justice v Ntuli
[1997] ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6) BCLR 677
(CC) (
Ntuli
) para 31.
[9]
Section 172(1)
provides:
“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.”
[10]
Zondi
above n 7.
[11]
Id at para 47.
[12]
Section 19 of the Bill of Rights 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.”
[13]
Section 19(1).
[14]
Section 19(2).
[15]
See [25] to [28], [30] to [31], [33] to [35], [38] and [48] below.
[16]
The Commission is still popularly known, and cited in litigation, as
the Independent Electoral Commission or IEC. That
was the
title of the Commission established under the
Independent Electoral
Commission Act 150 of 1993
to manage South Africa’s first
democratic elections on 27 April 1994. In 1996, the IEC was
superseded by the Commission
and its functions embodied in the
Commission Act. Judgments of this and other courts still
however refer to the Commission
as “the IEC”.
[17]
They are the African National Congress (third respondent),
Democratic Alliance (fourth respondent), Economic Freedom
Fighters
(fifth respondent), Inkatha Freedom Party (sixth
respondent), National Freedom Party (seventh respondent),
United Democratic
Movement (eighth respondent), Freedom Front
Plus (ninth respondent), Congress of the People (tenth respondent),
African
Christian Democratic Party (eleventh respondent), African
Independent Congress (twelfth respondent), Agang SA (thirteenth
respondent), Pan Africanist Congress of Azania (fourteenth
respondent) and African People’s Convention (fifteenth
respondent).
[18]
Minister of Home Affairs (sixteenth respondent), Minister of
Cooperative Governance and Traditional Affairs (seventeenth
respondent)
and National House of Traditional Leaders (eighteenth
respondent).
[19]
Though the Commission conceded Mr Mhlope and Ms
Xaba should have been informed of the new proceedings, it protested
that they
need not have been cited. In truth, Mr Mhlope and Ms
Xaba were entitled to be cited only because the Commission brought
this extension application under the same case number as
Mhlope
.
Nothing stopped it from bringing these proceedings as fresh process,
to which the Court would have assigned a new case
number.
[20]
73 of 1998.
[21]
Section 8(3)
of the
Electoral Act.
[22
]
Kham v Electoral Commission
[2015] ZAEC 2 (Electoral Court
judgment).
[23]
Kham v Electoral Commission
[2015] ZACC 37; 2016 (2) SA 338
(CC)
;
2016 (2) BCLR 157 (CC).
[24]
Kham
Electoral Court judgment above n 22 at para 1.
[25]
Id at para 2.
[26]
Id at para 78.
[27]
Id at paras 67-8.
[28]
Id at para 79.
[29]
Kham
above n 23 at para 72.
[30]
Id at para 73.
[31]
Id at para 75.
[32]
Id at para 76.
[33]
Id at para 94-5.
[34]
Para 5(c) of the
Kham
order above n 23.
[35]
The training encompassed that 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, staff would obtain a written affirmation
from the voter
that registration was in respect of the correct voting district.
[36]
Mhlope v Independent Electoral Commission of South Africa
[2016] ZAEC 1 at para 1, quoting para 3 of the order.
[37]
Mhlope
above n 2
under which the Commission brought the present proceedings, evoking
the ire of Mr Mhlope and Ms Xaba.
[38]
Mhlope
above n 2 was argued in this Court on 10 September
2015 and judgment delivered on 30 November 2015.
[39]
The relief this Court refused the Commission in
Mhlope
above
n 2 appears from what it sought in its notice of motion:
“In conducting the 2016 local government elections and 2019
national and provincial government elections, the [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
The [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.”
[40]
The minority judgment written by Madlanga J (Khampepe J and Mhlantla
J concurring) held that
section 16(3)
requires the Commission
to provide addresses even of voters who were registered before
December 2003. Paragraph 20 states:
“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 [Commission’s] database
cannot be
canvassed in [a] direct and focussed manner. . . .
Nor can the validity of their registrations
be verified with
relative ease.”
At paragraph 21,
the minority held that the obligation to provide a voters’
roll with addresses is ongoing in that each
time political parties
and independent candidates require a voters’ roll with
addresses for election purposes, the Commission
is required by
section 16(3)
to provide it. “It cannot be an answer
that the addresses of pre December 2003 voters were never
captured”.
The Commission, the minority said, must take
reasonable steps to get all addresses to comply with their
continuing obligation.
[41]
Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J and
Zondo J concurring).
[42]
Mhlope
above n 2 at paras 115-7, differing from the reading
propounded in the judgment of Madlanga J.
[43]
Id at para 110.
[44]
Id.
[45]
Id at para 108.
[46]
Id at para 8 of the order.
[47]
13 June 2017 Report of the Electoral Commission (Report) at para
1.3.
[48]
Id at para 1.6.
[49]
Id at para 1.9.
[50]
Mhlope
above n 2
at paras 105-12, 117 and 134.
[51]
Id at para 134.
[52]
Id at paras 105 and 112-3.
[53]
In September 2017, the Commission instructed all its Provincial
Electoral Officers (PEOs) to ask municipalities to provide
residents’ databases with addresses.
[54]
Section 49(2) of the Constitution provides:
“If the National Assembly is dissolved in terms of section 50,
or when its term expires, the President, by proclamation
must call
and set dates for an election, which must be held within 90 days of
the date the Assembly was dissolved or its term
expired. A
proclamation calling and setting dates for an election may be issued
before or after the expiry of the term of the
National Assembly.”
[55]
Since the hearing, media reports indicate that the Commission has
fixed the dates of the planned voter registration weekend as
Saturday, 26 January and Sunday, 27 January 2019.
[56]
Invoking
Competition Commission of South Africa v Pioneer Hi-Bred
International Inc
[2013] ZACC 50; 2014 (2) SA 480 (CC); 2014 (3)
BCLR 251 (CC).
[57]
Mhlope
above n 2 at para 82. See also
South African
Social Security Agency v Minister of Social Development
[2018]
ZACC 26
; 2018 JDR 1451 (CC);
2018 (10) BCLR 1291
(CC) at paras 21-2.
[58]
See
Minister of Agriculture, Forestry and Fisheries v National
Society for the Prevention of Cruelty to Animals
[2016] ZACC 26
;
2016
JDR
1560
(CC)
;
2016 (11) BCLR 1419
(CC) (
NSPCA
);
Acting
Speaker of the National Assembly v Teddy Bear Clinic for Abused
Children
[2015] ZACC 16
;
2015 JDR 1198
(CC);
2015 (10) BCLR 1129
(CC) (
Teddy Bear Clinic
);
Minister for Justice and Constitutional Development v Nyathi
[2009] ZACC 29
;
2010 (4) SA 567
(CC);
2010 (4) BCLR 293
(CC)
(
Nyathi
);
Zondi
above n 7.
[59]
Zondi
above n 7 at paras 44-6.
[60]
NSPCA
above n 58 at para 23.
[61]
See
Teddy Bear Clinic
above n 58 at para 12;
Nyathi
above
n 58 at para 26;
Zondi
above n 7 at para 47.
[62]
Mhlope
above n 2 at para 133.
[63]
The relevant portions of the
Mhlope
order read:
“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.”
[64]
Mhlope
above n 2 at para 39.
[65]
Id at para 105 where it is stated:
“‘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.”
[66]
Id at para 153.
[67]
Id at para 40 where Madlanga J stated:
“[T]his 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.”
See also the
statement per Mogoeng CJ at para 106 where it is stated that
“millions of voters in villages and informal settlements
did
not and still do not have recordable addresses available”.
See also the
statements per Jafta J at para 149:
“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.”
[68]
Id at para 117.
[69]
Id at paras 150 and 153.
[70]
According to the Commission’s website, as at 4 October 2018,
there were 26 094 478 registered voters. See
Independent Electoral Commission, “Registration Statistics” available at
http://www.elections.org.za/content/Voters-Roll/Registration-statistics/
.
In the 2014 national and provincial elections, the IEC had over 25
million registered voters on the voters’ roll
and just over
18.6 million votes were cast. The voter turnout that year was
73.48%. In comparison, voter turnout
in the 2009, 2004 and
1999 elections was 77.3%, 76.73% and 89.3% respectively. See
Electoral Commission,
National and Provincial Elections Report
2014
available at
http://www.elections.org.za/content/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=3291
,
at page 43 table 14.
[71]
Mhlope
above n 2 at para 42.
[72]
See [30] above.
[73]
Kruger v President of the Republic of South Africa
[2008]
ZACC 17
;
2009 (1) SA 417
(CC);
2009 (3) BCLR 268
(CC) at para 103.
See also
Cool Ideas 1186 CC v Hubbard
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) at para 112;
S v
Thunzi
[2010] ZACC 27
; 2010 JDR 1472 (CC) at para 5;
Matatiele
Municipality v President of the Republic of South Africa
[2006]
ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) (
Matatiele
)
at para 67;
Azanian Peoples Organisation v President of the
Republic of South Africa
[1996] ZACC 16
;
1996 (4) SA 671
(CC);
1996 (8) BCLR 1015
(CC) (
Azapo
) at para 16;
S v DD
2015 (1) SACR 165
(NCK) at para 72 and
Maqhunyana v Minister of
Safety and Security
2012 (1) SACR 630
(ECM) at para 19.
[74]
City of Cape Town v Aurecon South Africa (Pty) Ltd
[2017]
ZACC 5
;
2017 (4) SA 223
(CC);
2017 (6) BCLR 730
(CC) at para 34 and
Azapo
id at para 16. See also
Matatiele
id at
para 67 where it was stated:
“It is trite that this Court is not bound by a legal
concession if it considers the concession to be wrong in law.
Indeed,
in
Azanian Peoples Organisation (AZAPO) and Others
v President of the Republic of South Africa and Others
, this
Court firmly rejected the proposition that it is bound by an
incorrect legal concession, holding that ‘if that concession
was wrong in law [it] would have no hesitation whatsoever in
rejecting it’. Were it to be otherwise, this could lead
to an intolerable situation where this Court would be bound by a
mistake of law on the part of a litigant.”
[75]
Botha v Minister of Justice and Constitutional Development
2014
(1) SACR 479
(NCK) at para 7. See also
Klub
Lekkerrus/Libertas v Troye Villa (Pty) Ltd
[2011] ZASCA 101
;
[2011] 3 All SA 597
(SCA) at para 24.
[76]
Matatiele
above n 73 at para 67. Similar sentiments
were expressed by the Supreme Court of Appeal in
Government of
the Republic of South Africa v Von Abo
[2011] ZASCA 65
;
2011 (5)
SA 262
(SCA) at para 19, where it held that the court could not be
bound by what was legally untenable:
“It would be similarly intolerable if, in the current
situation, this court would be precluded from investigating the
legal soundness of the first order, as a result of the incorrect
advice followed by the appellants or an incorrect concession
made by
them.”
See also
Paddock
Motors (Pty) Ltd v Igesund
1976 (3) SA 16
(A);
[1976] 3 All SA
332
(A) at 23F where the court held:
“[I]t would create an intolerable position if a Court were to
be precluded from giving the right decision on accepted facts,
merely because a party failed to raise a legal point, as a result of
an error of law on his part.”
[77]
Matatiele
above n 73 at para 67.
[78]
Gwadiso v Member of the Executive Council
[2008] ZAECHC 181
at para 32.
[79]
Botha
above n 75 at para 7. See also
Klub
Lekkerrus/Libertas
above n 75 at para 24.
[80]
Saayman v Road Accident Fund
[2010] ZASCA 123
;
2011 (1) SA
106
(SCA) at para 29.
[81]
In
SS v VV-S
[2018] ZACC 5
; 2018 JDR 0275 (CC);
2018 (6) BCLR
671
(CC), Kollapen AJ stated at paras 21-3:
“A court’s role is more than that of a mere umpire of
technical rules, it is ‘an administrator of justice .
. . [it]
has not only to direct and control the proceedings according to
recognised rules of procedure but to see that justice
is done’.
A further factor which fortifies the conclusion that this Court was
not only entitled but obliged to have
raised and dealt with the
non compliance with the Order by the applicant, lies in the
nature of the obligations that the
Order and the settlement
agreement which accompanied it evidenced. All court orders
must be complied with diligently, both
in form and spirit, to honour
the judicial authority of courts. There is a further and
heightened obligation where court
orders touch interests lying much
closer to the heart of the kind of society we seek to establish and
may activate greater diligence
on the part of all.”
(Footnotes omitted.)
See also
Minister
of Health v New Clicks South Africa (Pty) Ltd
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (8) BCLR 872
(CC) at para 22 where, in
respect of suspensions of declarations of invalidity, it is stated:
“The court that makes the declaration of invalidity is the
court that is best placed to determine what is just and equitable
in
the circumstances and whether an order suspending the declaration of
invalidity should be made pending the appeal or any other
event or
period of time, and, if an order of suspension should be made, on
what conditions, if any.”
[82]
Mhlope
above n 2 at para 113.
[83]
Rail Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at para
86.
[84]
The Founding Affidavit states:
“The critical dependency on the usability of addresses from an
external source is whether it accords or confirms the voters’
registration in relation to the boundaries of the voting district.
This exercise, however, requires an address that has
corresponding
GPS co-ordinates (geo coded). This is important to fulfil
the CEO’s obligation in terms of
section 8(3)
of the
Electoral
Act. The
underlying analysis of this data therefore requires
additional time.”
In the Commission’s
Fourth Report at para 2.9, it indicates:
“Several measures are planned to improve the record of
addresses of registered voters on the national common voters’
roll:
. . .
Address data from external sources will be cleaned (to ensure format
compatibility), linked to Identity numbers of registered
voters,
geo-coded (to determine and assign longitude and latitude
co-ordinates to addresses), and analysed (to determine which
addresses are located in voting districts and wards where voters are
registered).”
See also para
2.9.3-4 where it is stated:
“Ahead of the general voter registration weekend planned for
February 2019 ahead of NPE 2019, the Commission plans to procure
new
voter registration technology, which is premised on improving the
accuracy and quality of information provided by voters
when applying
to register to vote, such as address details. The new
registration technology has been specified with a view
to mitigating
the key risks present in the current registration value chain,
including: immediately recording onto a digital
device voter
registration details, including address, at the point of application
to register – thus rendering paper registration
forms
superfluous; the use of digital mapping capabilities to more
accurately place the address of the voter in the correct voting
district and ward . . . the use of the new registration technology
in places without formal conventional addresses, such as informal
settlements and former homelands, is imperative to a sustained
improvement of addresses of registered voters.”
[85]
See [30].
[86]
See [58]:
“The second conclusion is that the big post-
Mhlope
break-through in address-collection came from voting day in the 2016
local government elections. There, the Commission
succeeded in
doubling the number of voters registered with adequate addresses.
Instead of having to entice voters to report
at temporary stations
for the sole purpose of stumping up their addresses, this is
achieved when the voter arrives at a voting
station to vote.
The exercise of the franchise provides the inducement to the voter
to arrive and provide address details.
This eliminates the
separate cost and effort of a massive national address-garnering
apparatus.”
[87]
In its supplementary affidavit, the Commission defines a “complete
address” as, amongst other things, one which contains
a street
number, street name, suburb and city.
[88]
“REC AS” addresses are obtained using the new “REC
AS” form and have sufficient details so as to place
the
registration applicant in the correct voting district.
[89]
An incomplete or generic address is one which contains some of the
values required for a complete address but not all of them.
[90]
Mhlope
above n 2 at para 134.
[91]
Maharaj v Rampersad
1964 (4) SA 638
(A);
[1964] 4 All SA
466
(A). See also
Unlawful Occupiers, School Site v City of
Johannesburg
[2005] ZASCA 7
;
[2005] 2 All SA 108
(SCA) at para
22:
“Nevertheless, it is clear from the authorities that even
where the formalities required by statute are peremptory it is
not
every deviation from the literal prescription that is fatal.
Even in that event, the question remains whether, in spite
of the
defects, the object of the statutory provision had been achieved.”
[92]
Above n 7.
[93]
Mhlope
above n 2 at para 127. See also at para 85 where
it is stated:
“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, 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?”
[94]
Id at para 132 which reads:
“
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 ‘any
order
that is just and equitable’. This means that
whatever considerations of justice and equity point to as the
appropriate
solution to a particular problem, it 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.”
[95]
Id at para 133.
[96]
Id at para 84.
[97]
The Founding Affidavit states:
“Accordingly, if the period of extension is not extended,
there is a very real risk that parties dissatisfied with the
outcome
of 2019 electoral results will seek to challenge the outcome of the
elections by relying on the incomplete / generic
/ missing
addresses. Even if such challenges were ultimately to fail,
this could imperil the public credibility of the
election results.
This is self-evidently a prospect that should be avoided if at all
possible.”
See [52] which
states: “[T]he main effect of that extension, and the
Commission’s main objective in seeking it, would
be to bar
pure address-based challenges to the 2019 elections”.
[98]
Mhlope
above n 2 at para 106 reads:
“
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.”
(Emphasis added.)
[99]
Id at para 125. See also the statement by Madlanga J at para
92:
“Let me emphasise a point I made earlier. 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.”
(Footnotes omitted.)
[100]
Id at para 106.
[101]
See [74] to [77] above.
[102]
See [41] above.
[103]
Mhlope
above n 2 at paras 94-5. The remedy proposed by
the minority judgment was adopted by the majority judgment.
[104]
Executive Council, Western Cape Legislature v President of the
Republic of South Africa
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC) at para 106.
[105]
Mhlope
above n 2 at para 70.
[106]
Id at para 72.
[107]
Id at paras 203-5.
[108]
Richter v Minister for Home Affairs
[2009] ZACC 3
;
2009 (3)
SA 615
(CC);
2009 (5) BCLR 448
(CC) at para 53.
[109]
See [55].