Kham and Others v Electoral Commission and Another

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van Der Westhuizen J, Wallis AJ and Zondo J
• Judgment Date: 30 November 2015
• Citation: 2016 (2) SA 338 (CC)
• Docket Number: CCT 64/15 [2015] ZACC 37
• Hearing Date: 10 September 2015
• Counsel: J Roux (with M Riley and CJ Markram) for the applicant. MTK Moerane SC (with L Gcabashe) for the first respondent. No appearance for the second respondent.
• Court: Constitutional Court

Wallis AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, F Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J and Zondo J concurring):

Introduction

[1] This case is a by-product of eight by-elections held in various wards G in the Tlokwe Local Municipality between August and December 2013. The applicants were unsuccessful candidates in the wards in which each of them had stood for election. They challenged the outcome of the by-elections in the Electoral Court, but their challenge failed and they now apply for leave to appeal to this court. The order they seek is that the results in the by-elections be set aside and that the respondent, the H Electoral Commission (IEC), [1] be ordered to hold fresh by-elections in the affected wards. Their application is opposed by the IEC.

[2] This local electoral dispute might be thought to be of little moment, save to the citizenry of Tlokwe, but the applicants' challenge to the I outcome of the by-elections poses questions that go to the heart of our constitutional commitment to a democratic and open society in which

Wallis AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J and Zondo J concurring)

government is based on the will of the people. [2] The founding values of A the Constitution include universal adult suffrage, a national common voters' roll and a multi-party system of democratic government to ensure accountability, responsiveness and openness. [3] The political rights of all citizens are enshrined in the Bill of Rights. [4] The Constitution requires that one of the state institutions supporting constitutional democracy B must be an Electoral Commission with responsibility for the management of elections at all three levels of government. [5] The Electoral Commission's core responsibility is to ensure that those elections are free and fair. [6]

[3] The IEC was established in terms of the Electoral Commission Act [7] C (Commission Act). This case requires us to examine the manner in which the IEC discharged its functions in relation to the Tlokwe by-elections. Commendably, the IEC has asked that this court should provide it with guidance on its responsibilities, particularly in relation to the registration of voters — the primary source of the disputes in this case.

The facts D

[4] The first three applicants were formerly members of the African National Congress (ANC) and elected councillors, in wards 18, 13 and 20, respectively, in the Tlokwe Local Municipality. They fell out with their party and, in the by-elections in question, stood as 'independent E candidates united against corruption'. The other five applicants joined them and stood under the same banner in other wards. They are not a political party, but are informally aligned with one another as a group of which Mr Kham, the first applicant, is the leader. They all lost to candidates representing the ANC.

[5] The first by-election was held in ward 9 on 7 August 2013 and the F eighth applicant was unsuccessful in his bid for election. According to the official poll results issued by the IEC, he received 504 votes as against the 738 votes recorded for the successful candidate.

[6] The second by-election was held in ward 18 on 18 September 2013, G where Mr Kham was a candidate. He received 520 votes and his successful opponent 884 votes. In the immediate aftermath of this by-election Mr Kham lodged a complaint against the outcome with the IEC in terms of s 65 of the Local Government: Municipal Electoral Act [8] (Municipal Electoral Act), but the IEC dismissed the complaint. The basis for the complaint was that he believed that voters had been H

Wallis AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J and Zondo J concurring)

A registered and permitted to vote in ward 18 even though they were not entitled to do so, because they were not resident in the ward when they registered. He suspected that his political opponents had orchestrated these improper registrations so as to ensure his defeat at the polls. Whether and, if so, to what extent his suspicions of electoral impropriety B were justified is a matter to which I will revert.

[7] On 20 September 2013, when preparations were under way for further by-elections to be held on 23 October 2013, Mr Kham sought information from the IEC concerning the registration of voters in all wards in which by-elections were held in Tlokwe, both on his own behalf C and on behalf of members of his group. The request was made formally in terms of PAIA. [9] Some documents were furnished to him pursuant to this request on 1 November 2013. These too will be dealt with later.

[8] The further by-elections scheduled for 23 October 2013 were to take place in wards 1, 4, 11, 12, 13 and 20. Objections were lodged to this D date with the IEC, on behalf of those of the applicants who wished to contest them. As a result, the by-elections were postponed. [10] A fresh date was fixed for 11 December 2013. This date also attracted an objection, this time that it was inconvenient to voters because of its proximity to the Christmas holiday season. The IEC rejected the objection and it plays no further role in the events leading up to the present E litigation.

[9] Once again the spectre of improper registration of voters in the wards where by-elections were to be held reared its head. In addition the segments of the national voters' roll to be used for the purposes of the F by-elections were only given to candidates on 4 December 2013, instead of 26 November 2013, the date applicable in accordance with the electoral timetable published by the IEC. [11] The segments of the voters' roll for each ward given to the candidates were unhelpful in that they did not include residential addresses for any of the voters, rendering it G difficult, if not impossible, for candidates to find, visit and canvass voters.

[10] In the light of these problems and concerns, the applicants approached the Electoral Court for an order that the by-elections be again postponed and for further relief. Unfortunately, due to the lamented death of the late President Mandela, the Electoral Court was H unable to convene to hear the application. [12] Accordingly, the by-elections proceeded as scheduled and the six applicants who were candidates lost. [13]

Wallis AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J and Zondo J concurring)

[11] In the founding and supplementary affidavits, the applicants sought A to paint a picture of wide-ranging irregularities in regard to the registration of voters. They said that more new voters had been registered in certain wards than was feasible given the stability of the population in those wards and the absence of any significant influx of new residents. They relied upon a statement by an unidentified whistle-blower that B some 2100 voters from other wards had been registered to vote in all of the affected wards as well as in two others. The documents received by Mr Kham from the IEC, consisting of copies of voter registration forms, [14] were said, on analysis, to support the proposition that voters who did not reside in these wards had been permitted to register there.

[12] Mr Kham complained that the analysis of these forms was logistically C difficult, as the applicants lacked sophisticated facilities, manpower and resources to analyse the forms and that without addresses it was impossible to verify the existence of particular voters or their right to be registered in a particular ward. Furthermore, some of the addresses on D the forms were confusing because they merely showed the voter to be resident in a named informal settlement, the boundaries of which spanned more than one ward. The result, so he said, was that voters from wards 17 and 21 were registered in ward 13. He complained that, in the ward he had contested in September, there were 612 registration forms bearing addresses that did not fall within the boundaries of the ward. E

[13] The founding affidavit culminated with the following statement:

'It is impossible for the applicants to accurately reflect the irregularities in respect of each ward, given the limited time, resources and manpower. As such the relevant bundles dealing with ward 13, ward 19 and F ward 20 constitute clear evidence of the irregularities. A sampled result in all the other wards suggests the same pattern. I state without hesitation that the investigation envisaged in the notice of motion will reveal the fatally flawed process in the wards not covered by the clear evidence referred to herein.'

[14] After the December by-elections, and in response to the present G litigation, the IEC conducted its own investigation into the allegations that voters not entitled to registration in these wards had been registered and that their participation had affected the result of the by-elections. It concluded that there were a number of such registrations and that some of those voters had voted, but that in no case had they done so in H

Wallis AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J and Zondo J concurring)

A sufficient numbers to affect the result of the elections. [15] Its stance was, and in this court is, that this meant that the result of the by-elections could not be disturbed. It accepted that the relevant segments of the voters' roll were only distributed on 4 December 2013 and that all the parties involved in the election had complained of this. It also accepted that the segments of the voters' roll that it made available to the parties B did not contain the addresses of the voters.

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