Johnson v Electoral Commission

• Jurisdiction: South Africa
• Judge: Wepener J, (Mthiyane AP and Moshidi J concurring)
• Judgment Date: 09 October 2013
• Citation: 2013 JDR 2347 (EC)
• Hearing Date: 17 September 2013
• Court: Electoral Court
• Docket Number: 004/2013

Wepener J: (Mthiyane AP and Moshidi J Concurring):

[1]

On the 17th of September 2013 this court made an order in the following terms:

'1.

The Electoral Commission (First Respondent) is ordered to request, as contemplated by Section 8 of the Local Government: Municipal Electoral Act 27 of 2000, the Member of the Executive Council to postpone the by-election to be held on 18 September 2013 in Wards 1, 4, 11, 12 and 20 of the Tlokwe Municipality, North West Province.

2.

The First Respondent is ordered to lodge a full investigation into the conduct of the Second Respondent, Dise John Makodi, for the period between 8 August 2013 and 27 August 2013 pertaining to the registration of the Applicants as candidates for the municipal by-elections which were due to take place on 18 September 2013.

3.

The 2nd, 3rd, 4th, 5th and 6th Applicants are allowed to register as candidates in their respective wards in the postponed by-election.'

2013 JDR 2347 p3

Wepener J: (Mthiyane AP and Moshidi J Concurring)

[2]

Due to the urgency of the matter we did not give reasons for the order which was made. We indicated that the reasons for it would be handed down in due course. This judgment is the embodiment of those reasons.

[3]

The applicants are all individuals who intended registering as independent candidates in the municipal by-elections to be held in several wards in the Tlokwe Municipality, North West Province.

[4]

The first respondent is the Electoral Commission (the Commission), a body established pursuant to the Constitution, with its objects set out in s 4 of the Electoral Commission Act 51 of 1996 (Electoral Commission Act) as being to 'strengthen constitutional democracy and promote democratic electoral processes'. The Constitution obliges the Commission to manage elections in accordance with national legislation, in this case the Local Government: Municipal Electoral Act 27 of 2000 ('the Municipal Electoral Act').

[5]

The second respondent is a project co-ordinator in the employ of the Commission who, in his official capacity, at all material times dealt with the applicants at the Commission's local office in Potchefstroom.

[6]

The third respondent is the Member of the Executive Council for Co-operative Governance and Traditional Affairs for the North West Province (MEC), joined in the application in her official capacity by virtue of the powers vested in her in terms of s 8 of the Municipal Electoral Act.

[7]

The applicants sought an order directing that the holding of the by-elections in several wards of the Tlokwe Municipality on 18 September 2013 be postponed as contemplated in s 8 of the Municipal Electoral Act. The section provides:

2013 JDR 2347 p4

Wepener J: (Mthiyane AP and Moshidi J Concurring)

'Postponement of elections

8(1) The Commission may request the Minister or, in the case of a by-election, the MEC, to postpone the voting day determined for an election if the Commission is satisfied that it is not reasonably possible to conduct a free and fair election on that day.

(2) On receipt of such a request, the Minister by notice in the Government Gazette, or the MEC by notice in the Provincial Gazette, must postpone the voting day for the election to a day determined in the notice, but that day must fall within a period of 90 days of the applicable date mentioned in section 24(2) or 25(3) of the Municipal Structures Act.'

The result is that, if the Commission requests the MEC to postpone the voting day, the MEC is obliged to postpone the voting day by notice as prescribed.

[8]

The applicants also sought an order that they be allowed to register as candidates in the postponed by-elections and an order directing the Commission to investigate the conduct of the second respondent.

[9]

During August 2013 it became necessary to call municipal by-elections in the Tlokwe Municipality as a result of vacancies which occurred in several wards of that municipality. The process adopted by the Commission pursuant to the provisions of s 11 of the Municipal Electoral Act resulted in it issuing a draft timetable, setting out the dates by when steps had to be taken regarding the by-elections. According to the timetable, a notice calling the by-election was to be given on or before 19 August 2013; the certification of the voters' roll and making certified segments available for inspection was to occur on 22 August 2013; the cut-off date and time for submission of the nomination of candidates was 17h00 on 26 August 2013; the cut-off date to notify a party or independent nominees of non-compliance of outstanding documents was 27 August 2013; the cut-off date and time for parties and independent candidates to submit outstanding ward candidate documents was 17h00 on 30 August 2013. A number of further dates, including the date when the by-elections were to be held on 18 September 2013, are provided for.

2013 JDR 2347 p5

Wepener J: (Mthiyane AP and Moshidi J Concurring)

[10]

The applicants are all part of a group of persons without affiliation to any political party who decided to contest the by-elections as independent candidates. As such they were subject to the same rights and obligations as candidates who were nominated by political parties in order to contest the by-elections, save that they were, in addition, required to be nominated as candidates by at least fifty voters registered in the ward in which each candidate intended to contest the election.

[11]

The common cause facts before this court show that the first to third applicants, in the company of others, approached the second respondent, an official in the employ of the Commission, on 8 August 2013. The purpose of the visit was to ensure that they were not 'caught off guard at the proverbial eleventh hour due to some discrepancy or deficiency in [their] application to be registered' as candidates for the by-elections. One of the requirements that a prospective candidate in a by-election should comply with is the submission of a form, referred to as Appendix 8, which should contain particulars and signatures of fifty voters concerning the nomination of an independent ward candidate as enacted in s 17(2)(a) of the Municipal Electoral Act. Although there are references to other requirements which independent candidates should comply with, it was common cause in this court that the applicants complied with all other requirements. It is only the issue of Appendix 8 which is in dispute.

[12]

Although it was argued, on behalf of the Commission, that this court should apply the principles laid down in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) and that the version of the Commission should be accepted where there are disputes of fact and that, accordingly, the fourth, fifth and sixth applicants did not form part of the group of persons who visited the second respondent on 8 August 2013, this submission, although legally sound, does not find application in this matter.

2013 JDR 2347 p6

Wepener J: (Mthiyane AP and Moshidi J Concurring)

[13]

All of the applicants allege that they were part of a group of persons who visited the second respondent in his official capacity as employee of the first respondent on 8 August 2013 in order to get their nominations in order. There are two affidavits filed on behalf of the respondents. The first attested to by the Chief Electoral Officer of the Commission and the second attested to by the second respondent. The first respondent's affidavit does not deal with the allegations of the persons who state that they visited the second respondent on 8 August 2013. The second respondent avers that he was approached by 5 persons on 8 August 2013. He supplies their names as including first, second and third applicants. The documents of the fourth to sixth applicants were indeed in possession of the Commission. It is common cause that the officials of the Commission looked at their documents and rejected them as candidates. It does not explain how and where the Commission received these documents. In the circumstances there can be no real or genuine factual dispute regarding the submission of the documents of these three applicants to the second respondent even if the rules of the Plascon-Evans case should find application. By virtue of the conclusion reached herein regarding the duties of the officials of the Commission, it is not important whether the fourth to sixth applicants handed in their forms for registration as candidates to the respondents on 8 August or on any other later date. It is not in dispute that this group of applicants handed in their forms prior to the cut-off time on 26 August 2013.

[14]

The next issue raised by the Commission was that the applicants were seeking to prevent the by-elections from continuing in all the wards where elections were to be held the following day and not only in those wards where the applicants were prospective candidates. This issue can be dealt with briefly. Counsel on behalf of the applicants could advance no ground as to why the elections in the wards that were not affected by the prospective candidature of the applicants should not proceed as planned. Counsel argued that it would be more expedient to postpone the elections in all the wards so that the elections in all the wards could take place on the same day. The

2013 JDR 2347 p7

Wepener J: (Mthiyane AP and Moshidi J Concurring)

argument has not basis in law and it cannot be sustained. By-elections properly called and where there are no allegations or proof of any untoward conduct, cannot be postponed as a matter of convenience to persons who have no interest in the by-elections in those particular wards. The applicants, in their replying affidavit, did not persist with the relief sought regarding wards 18 and 26. In the circumstances the relief sought regarding the postponement of the elections...