Mwali v The Electoral Commission of South Africa

• Jurisdiction: South Africa
• Judge: WL Wepener J and Adv. Mthembu and Ms Pather – Members
• Judgment Date: 22 November 2016
• Citation: 2017 JDR 0691 (EC)
• Docket Number: 019/2016
• Court: Electoral Court

Wepener J (Adv Mthembu and Ms Pather concurring):

[1]

The applicant was a duly nominated candidate for the national municipal elections which were held on 3 August 2016. He was an independent ward candidate for ward 23 in the Newcastle municipality, Kwazulu-Natal.

[2]

The first respondent is the Electoral Commission, commonly known as the Independent Electoral Commission or IEC ('the Commission'), a body established pursuant to the Constitution with its objects set out in s 4 of the Electoral Commission Act [1] ('the 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, inter alia, the Local Government: Municipal Electoral Act (the Municipal Electoral Act). [2]

[3]

The second respondent is the African National Congress (the ANC), a political party who contested the election relevant to this application. Only the Commission appeared at the initial hearing despite other interested parties having been served with the papers. At the second hearing, during November 2016, the ANC was represented by counsel who confirmed that the ANC had received the papers in this matter but due to internal administrative difficulties failed to appear at the first hearing. Counsel for the ANC requested time in order to make submissions by 18 November 2016 but agreed that the proceedings should be concluded at the November hearing. Initially, counsel

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Wepener J (Adv Mthembu and Ms Pather concurring)

for the ANC sought leave to intervene in the proceedings but it was accepted that such leave was not necessary, as the ANC was served with the documents being an interested party in the matter.

[4]

The applicant, who was unhappy with a number of issues or irregularities relating to the election that occurred in ward 23, initially sought from the Commission certain relief. That relief was sought pursuant to s 65 of the Municipal Electoral Act when the applicant lodged an objection with the Commission regarding the result of the election in ward 23.

[5]

The Commission, after an enquiry (the first enquiry), which I will refer to again, rejected the applicant's objection. The applicant then approached this court for relief. The approach is competent both by virtue of this court's power to review a decision of the Commission [3] and by virtue of the applicant's right

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Wepener J (Adv Mthembu and Ms Pather concurring)

to lodge an appeal against a decision of the Commission in terms of s 65(9) of the Municipal Electoral Act. Although an electoral dispute is not defined, it is not difficult to conclude that such is to relate to an election, the latter being

'1. A formal procedure whereby a person is elected to political office.

2. The action or fact of electing or being elected.' [4]

The applicant's complaint is in relation to such a dispute.

[6]

The significance of the distinction between the review and appeal proceedings lies therein that the court is empowered to make the orders pursuant to s 65(10) of the Municipal Electoral Act when an appeal is heard whilst the Electoral Commission Act does not specifically provide for the relief set out in s 65(10) of the first mentioned Act.

[7]

The applicant's objection to the outcome of the election was based on a number of grounds, some of which he did not pursue before us. Due to the paucity of information but the seriousness of the allegations, this court directed that oral evidence be heard pursuant to the provisions of Rule 11(2)(e) of the Rules. [5]

[8]

Save for the main issue of voters who voted in incorrect voting districts, the applicant persisted with a complaint that the Commission had failed to mark the identity documents of voters as provided for in s 38(5)(aA) of the Electoral Act [6] (the Electoral Act). However, during the municipal elections the latter Act only applies to the extent as stated in the Municipal Electoral Act. [7] The Municipal Electoral Act does not import the requirement contained in the

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Wepener J (Adv Mthembu and Ms Pather concurring)

Electoral Act regarding the marking of identity documents, which will only apply to national elections. The Municipal Electoral Act provides in s 47 for the procedure to be followed when voting takes place and the reference to the marking of identity documents is absent. In this respect the Municipal Electoral Act is more advanced than the Electoral Act as many citizens do not have identity documents as there is now a system of issuing identity cards in the place of identity documents and the cards do not allow for a marking thereon. The requirement of the marking of the identity document, although still applicable and a possible problem at the next national elections or a by-election unless attended to, is not applicable to the election under consideration.

[9]

During the course of the day on 3 August 2016, while the local government elections were in progress, the applicant who was a duly nominated candidate in ward 23, realised that there were irregularities regarding votes being cast in ward 23 and neighbouring wards. The main irregularity was that voters who resided outside of ward 23 were voting in ward 23 whilst voters who resided in ward 23 were sent away to vote elsewhere. This was the essence of the complaint or objection which the applicant lodged with the Commission. At the outset, the applicant estimated the number of persons who were unlawfully allowed to vote in ward 23 to be approximately five hundred in number. After submitting his complaint and after the Commission rejected his objection to the outcome of the election, the applicant made a detailed analysis of the voters roll and concluded that more than six hundred addresses of voters who voted in ward 23, fell outside of that ward and in other wards. When the applicant brought the objection to the notice of the Commission, it appointed an attorney to investigate the merits of the objection. The less I say about that investigation the better. The applicant's...