Inkatha Freedom Party, Nongoma v Electoral Commission

• Jurisdiction: South Africa
• Judge: DS SMoshidi J, (Mthiyane DP and Wepener J concurring)
• Judgment Date: 29 April 2014
• Citation: 2014 JDR 1869 (EC)
• Docket Number: 005/13
• Court: Electoral Court

Moshidi, J (Mthiyane DP and Wepener J concurring):

INTRODUCTION

[1]

This application concerns the failureby the Electoral Commission ("the first respondent"), to take into account certain special votes cast in terms of the provisions of s 55 of The Local Government:Municipal Electoral Act 27 of 2000 ("the Municipal Electoral Act") in respect of municipal by-elections held on 23 October 2013. The by-elections were held in Ward 11, Nongoma, KwaZulu-Natal ("the by-election").

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Moshidi, J (Mthiyane DP and Wepener J concurring):

[2]

By way of introduction, and for present purposes, the events leading to the present proceedings may be stated briefly as follows:Based on the above failure by the presiding officer, the applicants on 25 October 2013 lodged an objection with the first respondent in terms of s 65 of the Municipal Electoral Act. The basis of the objection was a failure to comply with statutory provisions contained in ss63, 64 and 65(1) of the Municipal Electoral Act. In particular, it was contended that the presiding officer and/or counting officer failed to have regard to, and failed to include the special votes which had been cast prior to declaring the results of the by-election.

2.1

In November 2013, the first respondent informed the appellants that it had investigated the objection and resolved to uphold same, as dealt with more fully later below.The first respondent also held the view as contained in its written submissions that the nature of the irregularities revealed by the investigation may justify the setting aside of the entire by-election. Based on this view, the first respondent informed the applicants that it had decided to refer the objection to this Court for its decision. The referral was made in terms of s 65(7)(b) of the Municipal Electoral Act.

2.2

The applicants, aggrieved by the decision of the first respondent to refer the matter to this Court, launched urgent proceedings in this Court on 29 November 2013.In the urgent proceedings the

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Moshidi, J (Mthiyane DP and Wepener J concurring):

applicants sought certain relief as set out in paragraph [3]of this judgment.

2.3

In opposing the urgent proceedings and the referral of the objection to this Court, the first respondent cited itself as the "applicant" and the present applicants as the "respondents".The first respondent simultaneously launched a conditional counter-application and an application for consolidation of the applications in terms of Rule 11 of the Rules of Court.The present applicants opposed these applications.It isconvenient to refer to the parties in the present matter as hereinbefore.

[3]

For the sake of proper context, it is convenient to set out in full the relief sought by the applicants as set out in paragraph 13 of the notice of motion. It reads as follows:

"13.1

That the applicants are granted leave to appeal in terms of section 20 of the Electoral Commission Act 51 of 1996 against a decision of the first respondent on 25 November 2013 (and communicated to the applicants' attorneys on 26 November 2013) in terms of which the first respondent referred the objection by the applicants in respect of the municipal by-elections held on 23 October 2013 in Ward 11 Nongoma ('the by-election') to the Electoral Court for its decision;

13.2

The Electoral Commission is ordered to include the box of twenty special ballots (serial numbers 0051450 and 0051449 at the Nzobo Voting Station in Ward 11, Nongoma) in the counting of votes in the by-election;

13.3

The Electoral Commission is ordered to amend the results of the by-election in terms of section 65(7)(a) of the Local Government; Municipal Electoral Act 27 of 2000 to the following:

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Moshidi, J (Mthiyane DP and Wepener J concurring):

13.3.1

NkosinathiMzukhonaNzimande (IFP) – 895 votes;

13.3.2

Nombuyana Samuel Ncube (NFP) – 893 votes;

13.3.3

Nhlanhla Michael Mthembu (ANC) – 711 votes;

13.3.4

The Electoral Commission is ordered to declare that the second applicant is the winner of the by-election;

13.3.5

The Electoral Commission, together with those other respondents (if any) who oppose this application, be ordered to pay the applicants' costs in this application jointly and severally, the one paying the other(s) to be absolved."

COMMON CAUSE FACTS

[4]

The Inkatha Freedom Party ("IFP"), and "first applicant" and the National Freedom Party ("NFP")hereinafter ("the second respondent") as well as the African National Congress ("the ANC"), hereinafter ("the fourth respondent"), are all registered political parties in terms of Chapter 4 of the Electoral Commission Act 51 of 1996 ("the Commission Act").All these political parties have an interest in the by-election as they had nominated candidates for election thereat. The second applicant is Mr NkosinathiMzukhonaNzimande who stood as the first applicant's candidate in the by-election ("the second applicant").The first respondent is the Electoral Commission, a body established by s 181(1)(f) of the Constitutionand s 3(1) of the Commission Act .In terms of the Constitution, the first respondent shall be independent, subject only to the Constitution and the law, and shall be impartial and exercise its powers and perform its functions without fear, favour or prejudice.The duties, functions, objects and powers of the first respondent are all set out in ss 4 and 5 of the Commission Act.Mr Nombuyana Samuel

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Moshidi, J (Mthiyane DP and Wepener J concurring):

Ncube ("the third respondent") stood as the second respondent's candidate in the by-election.Finally, Mr Nhlanhla Michael Mthembu ("the fifth respondent") stood as the fourth respondent's candidate in the by-election.

[5]

In regard to special votes, s 55 of the Municipal Electoral Act provides:

"Any voter who is unable, on voting day, to cast his or her vote at the voting station in the voting district where he or she is registered, may in the prescribed manner apply and be allowed, prior to voting day, to cast a special vote within that voting district."

[6]

In this matter, it is not in dispute that special votes were cast in Ward 11, Nongoma a day before the by-election i.e. 22 October 2013.The latter date was set aside for the casting of such special votes.There was nothing untoward in the process of casting these votes.The votes were cast in the presence of the delegated presiding officer together with the representatives of the interested political parties mentioned above.The votes were properly secured and preserved and placed in a box with serial numbers 0051450 and 0051449.In addition, the manner in which the special votes were cast, significantly made it possible for the interested parties to know in advance which party or candidate received the vote. However, and regrettably, after the normal voting took place the following day, i.e. 23 October 2013, in the process of counting all the votes, the counting officer omitted to open and count the special votes in the ballot box.When questioned by the representative of the first applicant (IFP), the presiding officer allegedly responded that:

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Moshidi, J (Mthiyane DP and Wepener J concurring):

"I forgot to stamp the ballot papers",

andsaid that he intendeddisregardingthe special votes in their entirety,and would noteven scrutinisethem at all.

[7]

The version of the first respondent (EC) in this regard and in opposing the instant application, is set out fully in its founding affidavit in the conditional counter-application and answering affidavit in an urgent application brought by the applicants.In that answering affidavit, the first respondent, whilst referring the dispute to this Court in terms of s 65(7)(b) of the Municipal Electoral Act, as dealt with below, essentially made several concessionary allegations. These included that the presiding officer realised on 23 October 2013 that he had omitted to stamp the back of the ballot papers that were given to the special voters; that s 61 of the Municipal Electoral Act directs that a ballot paper, 'that does not bear the official mark', i.e. stamp, on the back of the ballot paper must be rejected;that on 23 October 2013, before the opening and counting the ballots cast on 22 October 2013 and 23 October 2013, the presiding officer advised the party agents and officials present of the error made in relation to the special votes that had been cast the previous day;and that the ballot box with the special votes had remained sealed as a decision had to be taken later on how to treat those ballots;that the consensus arrived at by those present was that the provisions of s 61(1)(c) of the Municipal Electoral Act should apply to the special votes and that they should not be counted (see paras 31-33 of the first respondent's conditional counter-application and condonation application).

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Moshidi, J (Mthiyane DP and Wepener J concurring):

[8]

As to the reasons for the error, the first respondent maintained that it was a bona fide mistake on the part of the presiding officer and his team in not opening and counting the box containing the special votes.This mistake is attributable to the possible "tense environment"within which the special votes were cast.I deal later below with this contention.The upshot is that the special votes were not counted.

[9]

It is further not in dispute that the declared results of the by-election, excluding the box of the special votes, were as follows:

9.1

The NFP (the third respondent) – 889 votes;

9.2

The IFP (the first applicant), represented by the second applicant – 880 votes;

9.3

The ANC (the fourth respondent) represented, by the fifth respondent – 710 votes.

On this basis, the NFP was declared the winner of Ward 11, Nongoma, by 9 votes.It is also not in dispute that the error or omission in not...