Inkatha Freedom Party v The Electoral Commission
| Jurisdiction | South Africa |
| Judge | Mthiyane JA |
| Court | Electoral Court |
| Citation | 2011 JDR 0816 (EC) |
| Docket Number | 005/11 IEC |
Mthiyane, JA:
INTRODUCTION
On 20 April 2011, the applicant, Inkatha Freedom Party, launched an application to this Court on notice of motion seeking two forms of relief. In the first, it sought leave to appeal against the decision of the respondent, the Electoral Commission, 'refusing to allow [Mr] Mzwandile Beatus Mbhele to contest the municipal election in Ward 4 Indaka Hotel Municipality and refusing to accept the Applicant's documentation in terms of sections 14(1) and 17(1) and (2) of the Local Government: Municipal Electoral Act 2000, at the Respondent's offices in Indaka Municipality'. The second and alternative form of relief sought is the review and setting aside of that decision. In its written submissions, the Applicant appears to have abandoned the application for leave to appeal and limited itself to the application for review. Accordingly, this matter will be dealt with as a review, which is, in any event, more appropriate.
FACTUAL BACKGROUND
On 25 March 2011, two representatives of the applicant visited the office of the respondent's local representative in Indaka Municipality, in order to submit party lists, nomination forms and supporting documentation in respect of its candidates for the local government elections in Indaka Municipality. The applicant wished to nominate Mr Mbhele as its candidate for Indaka Municipality Ward 4 and tendered documentation for submission in support of that nomination. The officials of the Respondent informed the applicant's representatives that Mr Mbhele's name did appear on Indaka Municipality's
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segment of the voters' roll, but rather on the segment for Msinga Municipality, and that they could therefore not accept his nomination. Confronted with this predicament, the applicant's representatives then nominated Sboniso Vincent Ndlovu as the applicant's candidate for Indaka Municipality Ward 4. This nomination was duly accepted by the respondent's officials.
Mr Mbhele, who deposed to the applicant's founding affidavit, affirms that he did not register as a voter in Msinga Municipality. During the last registration weekend on 5 and 6 March 2011, Mr Mbhele visited his voting station in Indaka Municipality, to confirm that he was registered there, and indeed this was confirmed. This visit is corroborated by the respondent's records. However, the respondent's records also reflect that on the morning of 6 March 2011, Mr Mbhele registered as a voter in Msinga Municipality.
Having heard that his nomination was not accepted by the respondent, due to his registration in Msinga, Mr Mbhele visited the respondent's offices in Msinga Municipality on 28 March 2011, and demanded that the respondent's officials produce the relevant registration documentation. He was informed that the relevant documentation, namely an "REC 1" application for re-registration form, could not be located. The respondent, in its first written submissions in this matter, confirmed that the documentation had still not been located. It stated, however, that the scanner that was used to scan Mr Mbhele's identity document had been operated jointly by the presiding office and deputy presiding officer of the station, who had both deposed to sworn statements to this effect, although neither could explain the missing documentation.
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This Court requested copies of these sworn statements, in its directives dated 6 May 2011, but the respondent has neither provided the statements nor explained its failure to do so. Such non-compliance is unhelpful indeed. However, the respondent did provide the requested copies of relevant parts of the voters' roll, namely (a) the page of the Msinga Municipality's segment of the voters' roll on which Mr Mbhele's name is indeed printed, and (b) the page of the Indaka Municipality's segment of the voters' roll on which Mr Mbhele's name is printed but struck out. His name is however not the only name that has been struck out. It appears that that is the way in which a removal from the voters' roll is reflected, when a voter is removed for some or other reason, including, presumably, death. There is no annotation to indicate the reason for the striking out of a person's name, which is apparently effected simply by ruling a line through the name.
Mr Mbhele suspects that his re-registration in Msinga was a fraudulent attempt by 'individuals' to disqualify him from standing as a candidate for Indaka Municipality Ward 4, although he did not identify who the culprits could be. When he was asked by the respondent's officials to produce his identity document for...
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