Kham v Electoral Commission

JurisdictionSouth Africa
JudgeDSS Moshidi J and Shongwe JA and Wepener J
Judgment Date19 March 2015
Docket Number006/2013
CourtElectoral Court
Hearing Date16 January 2015
Citation2015 JDR 0683 (EC)

Moshidi J (Shongwe JA, Ms S Pather and Mr M Mthembu, members concurring):

[1]

At the heart of this matter are the collective contentions of the applicants that the voter registration and the subsequent voters' roll compiled by the Electoral Commission, the first respondent ("the Commission"), in regard to the municipal by-elections held at Tlokwe Local Municipality during August 2013, September 2013 and December 2013, were inaccurate, incorrect, and therefore unreliable. In essence, the assertions of the applicants came to this: a large number of voters who were registered and/or voted in the said by-elections were ineligible voters and were bussed in from other wards or areas.

THE RELIEF SOUGHT BY THE APPLICANTS

[2]

In the amended notice of motion, [1] the relief sought by the applicants was framed in the following terms:

"1.

The First Respondent (at its own expense), is ordered to instruct a suitably qualified, reputable and independent firm of forensic investigators to conduct a comprehensive forensic investigation into the registration process adopted and implemented by the First Respondent for the by-elections held on 6 and 7 August 2013, 17 and 19 September 2013 and those held on 10 and 11

2015 JDR 0683 p4

Moshidi J (Shongwe JA, Ms S Pather and Mr M Mthembu, members concurring)

December 2013 in the district of the Tlokwe Local Municipality, Northwest Province (the 'by-elections') within 30 days of date of this order.

1.1

The First Respondent is ordered to revert and make available to this court the full written report of the forensic investigation, within 90 days from date upon which the order is granted.

2.

The terms of reference and mandate for purposes of the forensic investigator's report must require and contain, inter alia, the following:

2.1

The names and addresses (under separate headings) of all voters in the by-elections that were:

2.1.1

registered with the First Respondent for the first time ('first time registrations');

2.1.2

re-registered with the First Respondent from an address and/or municipal ward that falls within a district outside the district of the Tlokwe Local Municipality ('outside re-registrations');

2.1.3

re-registered from another ward within the Tlokwe Local Municipality;

2.1.4

registered to cast a special vote.

2.2

The number and full particulars of all voters not susceptible to have voted, for whatsoever reason, in vacant wards in respect of the by-elections on 6 and 7 August 2013, 17 and 18 September 2013 and 10 and 11 December 2013, respectively.

2.3

A recommendation in respect of those voters (a list with full particulars should be included) to be removed from the voters roll by the First Respondent.

2.4

A full indication on any adverse effect that the lists in paragraph 2.2 and 2.3 supra may have had on the freeness and fairness of the by-elections held on 17 and 18 September 2013 and 10 and 11 December 2013, within the district of Tlokwe Local Municipality.

2.5

The names and full particulars of officials of the First Respondent that may reasonable have been party to or at least aware of contraventions of the Electoral Act in respect of the 2013 by-elections in the Tlokwe Local Municipality.

2015 JDR 0683 p5

Moshidi J (Shongwe JA, Ms S Pather and Mr M Mthembu, members concurring)

2.6

The name(s) of any political party(ies) that may reasonable be suspected to have been involved with or that may have orchestrated a process of illegal registration in the by-elections in 2013 in the Tlokwe Local Municipality.

2.7

All registered candidates and political parties will have observer status during the process in paragraph 2.

3.

The Applicants are granted leave to supplement their papers once the full forensic report is made available to the First Respondent, within 20 days of date thereof.

4.

Should the report contain any adverse findings in respect of the by-elections in 2013 within the Tlokwe Local Municipality, which findings indicate irregularities which may have had an adverse effect on the freeness and fairness of the by-elections in the Tlokwe Local Municipality in the 2013 by-election, it is ordered that:

4.1

the unlawful election of any candidate in any particular ward be set aside and that the First Respondent be ordered to convene new by-elections in such ward where such candidate(s) was/were elected;

4.2

any political party and/or candidate of a political party involved with or responsible for an orchestrated or collective effort or the provision of assistance to voters to illegally register in any ward where by-elections in the Tlokwe Local Municipality were held in 2013, be disqualified from participating in the by-elections;

4.3

the First Respondent must take all reasonable steps to lay criminal charges against all or any persons that have committed a criminal offence during the registrations and by-election dates as provided for 2.2 above.

5.

Further and/or alternative relief."

THE PARTIES

[3]

The eight applicants are almost collectively cited as community leaders and/or politicians resident in Ikageng, district of Potchefstroom, within the

2015 JDR 0683 p6

Moshidi J (Shongwe JA, Ms S Pather and Mr M Mthembu, members concurring)

Tlokwe Local Municipality. The Commission is a body established in terms of the Constitution, [2] which sets out the Commission's functions as:

"(1)

The Electoral Commission must —

(a)

manage elections of national, provincial and municipal legislative bodies in accordance with national legislation;

(b)

ensure that those elections are free and fair; and

(c)

declare the results of those elections within a period that must be prescribed by national legislation and that is as short as reasonably possible.

(2)

The Electoral Commission has the additional powers and functions prescribed by national legislation. [3]"

In addition, secs 4 and 5 of the Electoral Commission Act 51 of 1996, ("the Commission Act"), deal with essential duties, functions, objects and powers of the Commission. The objects include, to strengthen constitutional democracy and promote democratic electoral processes. Some of these objects and powers will become more pertinent later in the judgment. The second respondent, who did not participate in these proceedings, is the Member of the Executive Council, Department of Local Government and Traditional Affairs, North West Provincial Government ("MEC"). The latter was joined in this application in her official capacity, and by virtue of the powers vested in her in terms of sec 8 of the Local Government: Municipal Electoral Act 27 of 2000 ("the Municipal Electoral Act").

2015 JDR 0683 p7

Moshidi J (Shongwe JA, Ms S Pather and Mr M Mthembu, members concurring)

THE BACKGROUND

[4]

The matter was heard by a full complement of this Court during the January 2015 court recess. At that stage it had accumulated a long and substantial history. The record of the proceedings had also grown into huge volumes. This was caused largely by the amended notice of motion, which in turn resulted in a rejoinder by the Commission, [4] and the applicants' surrejoinder. [5] All these pleadings contained various and numerous annexures. At a previous hearing i.e. on 22 October 2014, this Court also postponed the matter and ordered that other potential interested parties and political parties be joined. However, none of such parties opted to join the proceedings. In spite thereof, some nine additional bundles of papers were filed shortly before the current hearing.

SOME COMMON CAUSE FACTS

[5]

From the entire documentation, certain facts or events were either common cause or not seriously disputed. These were that, some of the applicants previously took part in the Tlokwe Municipal by-elections under the banner of the African National Congress ("the ANC"). The ANC expelled those members, such as the first, second and the third applicants. For the present, the applicants were described as community leaders, selected politicians and leaders earmarked to contest in the Tlokwe Municipal by-

2015 JDR 0683 p8

Moshidi J (Shongwe JA, Ms S Pather and Mr M Mthembu, members concurring)

elections that took place on 7 August 2013, and those scheduled for 18 September 2013 and 11 December 2013.

[6]

Despite the relief currently sought by the applicants, the by-elections of 7 August 2013 were held mostly uneventful. There was no known challenge to these by-elections by any political party and candidates in terms of sec 65 of the Municipal Electoral Act or sec 15 of the Electoral Act 73 of 1998 ("the Electoral Act"). The results were duly declared by the Commission. However, in regard to the by-elections scheduled for 18 September 2013, there were certain developments and obstacles. The second, third, fourth, fifth, sixth and seventh applicants launched urgent proceedings in this Court against the Commission on 17 September 2013. The proceedings ended in the present second, third, fourth, fifth and sixth applicants being allowed to register as candidates in their respective wards. The by-elections were postponed pursuant an order, and judgment of this Court in Johnson and Others v Electoral Commission and Others. [6]

[7]

In essence, the complaints and grievances of the applicants against the conduct of the Commission commenced in earnest on 8 August 2013. These persisted right up to the by-elections of September 2013 and December 2013, leading up to the present proceedings.

[8]

In my view, and for purposes of determining the applicants' main relief set out in the amended notice of motion, i.e. mandatory injunction ordering the

2015 JDR 0683 p9

Moshidi J (Shongwe JA, Ms S Pather and Mr M Mthembu, members concurring)

Commission, at its own expense, to commission an independent forensic investigation, it was unnecessary to detail here all the...

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