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Republican Party of Namibia and Another v Electoral Commission of Namibia and Others (A387/05 ; A387/05) [2005] NAHC 2 (26 April 2005)

.RTF of original document

CASE NO.: A 387/2005

IN THE HIGH COURT OF NAMIBIA

In the matter between:

REPUBLICAN PARTY OF NAMIBIA 1^ST APPLICANT

CONGRESS OF DEMOCRATS 2^ND APPLICANT

and

ELECTORAL COMMISSION OF NAMIBIA 1^ST RESPONDENT

SWAPO PARTY OF NAMIBIA 2^ND RESPONDENT

DTA OF NAMIBIA 3^RD RESPONDENT

MONITOR ACTION GROUP 4^TH RESPONDENT

NATIONAL UNITY DEMOCRATIC

ORGANISATION OF NAMIBIA 5^TH RESPONDENT

UNITED DEMOCRATIC FRONT OF NAMIBIA 6^TH RESPONDENT

NAMIBIA DEMOCRATIC MOVEMENT

FOR CHANGE 7^TH RESPONDENT

SWANU OF NAMIBIA 8^TH RESPONDENT

CORAM: DAMASEB, J.P., MARITZ, J. et MTAMBANENGWE, A.J.

Heard on: 2005-03-03, 04 and 07

Delivered on: 2005-04-26

REASONS FOR ORDER OF THE COURT: DAMASEB, J.P., MARITZ, J. et MTAMBANENGWE, A.J.: We have before us an election application (“the application”) brought in terms of s 109 of the Electoral Act, No. 24 of 1992 (“the Act”) in respect of the National Assembly election that took place on 15^th and 16^th November 2004 (“the election’). The application has been brought by two political parties; namely Republican Party of Namibia and Congress of Democrats. Eight Respondents have been cited in the application. No relief is sought against the Second to Eighth Respondents – all of them political parties which took part in the election alongside the applicants.

The applicants seek the following relief in their Notice of Motion:

“1. An order declaring the election for the National Assembly held on 15^th and 16^th November 2004 null and void and of no force and effect and that the said election be set aside.

Alternatively to prayer 1 above

2. An order declaring the announcement of the results on 21^st November 2004 of the National Assembly election held on 15^th and 16^th November 2004 null and void and of no force and effect.

3. Ordering the First Respondent to recount in Windhoek the votes cast in the said election as provided for in the Electoral Act No. 24 of 1992 (as amended) and to allow the Applicants and other Respondents to exercise their rights in regard to such counting as provided for in the said Electoral Act.

In any event

3. Ordering the First Respondent and any other Respondent(s) opposing this application to pay the costs thereof jointly and severally, the one to pay the other to be absolved.

3. Further and/or alternative relief.”

The application is opposed by the First Respondent, the Electoral Commission of Namibia – established in terms of s 3 of the Act. Section 4(1) of the Act provides:

“Subject to the provisions of this Act, the Namibian Constitution or any other law, the Commission shall be the exclusive authority to direct, supervise and control in a fair and impartial manner any elections under this Act.” [Our emphasis]

At the conclusion of the hearing on 7^th March 2005, we reserved judgment. With the date on which the term of the 3^rd National Assembly of Namibia would expire in terms of Article 50 of the Constitution barely 2 weeks away, a considerable degree of constitutional urgency attached to the application, requiring expeditious determination of the application. However, given the wide front on which the validity of the election was being attacked; the diversity of the objections raised and the complexity of the factual and legal arguments advanced, the Court would not have done justice to the issues and contentions raised and advanced if it had to prepare its reasons in an overly hasty fashion. We, therefore, albeit with a considerable degree of reluctance in view of the importance of the matter, deemed it necessary to make known the result of our deliberations and considered conclusions and to hand down our reasons for those conclusions in due course. Therefore, on 10^th March 2005, we made an order refusing to avoid the election but declaring the announcement of the results thereof null and void and ordered the first respondent to cause a recount of the votes cast in accordance with the Act. We advised then that our reasons would follow. What now follow are those reasons.

In paragraph 4 of the Founding Affidavit deposed to by Anna Carola Engelbrecht for the applicants, the underlying thrust of the petition is set out thus:

“The conduct of elections is governed by the Electoral Act No. 29 of 1992 (sic) (as amended) ... As will become apparent from what is stated hereinafter the provisions of the Act was as a rule rather disregarded than honoured. In fact so widespread was the disregard for the provisions of the Act that it is submitted that no election as envisaged in the Act took place.” [It must be Act 24 of 1992]

Engelbrecht deposes that the applicants’ respective Presidents sought certain documentation from the First Respondent in the aftermath of the election – in view of information that came to their knowledge (presumably about irregularities in the election). Because the First Respondent refused the information sought, she says, the applicants then brought an urgent application. The application was opposed, but Hoff J, on 16^th December 2004, granted an order in the following terms:

“1. That a final mandatory interdict is granted ordering respondent not later than 14h00 on 16^th December 2004 to make available and allow applicants to make copies of the following documents:

1. Those documents referred to in paragraphs 2(a) (i), 2(a) (ii), 2(a) (iii), 2(a) (iv) and 2(a) (v)¹ of applicants’ notice of motion; and

2. Those documents referred to in paragraphs 2(b) (i) and 2(b) (iii)² of applicants’ notice of motion.

2. That the respondent to pay the costs of this application which costs shall include the wasted costs occasioned by the postponement on 13^th December 2004.”

Armed with this order the applicants went to the offices of the First Respondent. For the reasons explained in her affidavit, Engelbrecht says, applicants decided “to focus on certain documentation only.” These are the “Elect” 16, 17, 18, 30A and 30B forms devised and used by the first respondent in the election.

We will now proceed to summarise the complaints raised in respect of the election in the founding papers.

Complaint 1: Absence of serial numbers on ballot papers

The applicants aver that the ballot papers used in the election did not bear serial numbers as is, in their view, required by s 74(2) of the Act which provides as follows (in its amended form):

“For the purposes of any election, the Director shall provide every political party taking part in such election with –

1. a list containing the numbers allotted to the ballot boxes; and

2. a list containing the serial numbers of the ballot papers,

to be used at each polling station.”

Engelbrecht avers that the fact that the ballot papers did not bear serial numbers was admitted by the Director of Elections of the First Respondent (Philemon Kanime) who, when this was put to him, stated that the Act does not require serial numbers on ballot papers and that the counterfoils bore the serial numbers in terms of regulations³ issued by the first respondent. She then continues:

“This means that ballot papers can be substituted by unscrupulous persons and this cannot be detected provided the substitutions equal the number of ballot papers removed.” [Our emphasis]

Immediately after the passage quoted above, Engelbrecht continues:

“This is not mere speculation as is evidenced by the ballot papers found near Okahandja which is currently the subject matter of a police probe. Ballot papers for the National Assembly election were found in a riverbed near Okahandja subsequent to the elections. It was clear that ballot papers had been burned. Of the 22 ballot papers still intact to the extent that one could ascertain in whose favour they were brought out all reflected votes in favour of opposition parties, i.e. parties other than Second Respondent.”

She later concludes on this point:

“The net effect of the ECN’s non-compliance with the Act is that it is impossible to state with any certainty that the cast ballot papers in its possession consist only of ballot papers lawfully completed.”

The first respondent’s response to these allegations is contained in its answering affidavit deposed to by Mr Kanime in his capacity as Director of Elections of the First Respondent. We shall continue to refer to him as the “Director”.

The first respondent admits that the actual ballot papers used in the election did not bear serial numbers but disputes that the law requires that serial numbers should be printed on ballot papers, considering that s 81(1), as read with s 130 of the Act, does not contain such a requirement. The Director maintains that the form of a ballot paper prescribed in the Regulations by the first respondent in terms of s 130 of the Act, does not require that the actual ballot papers bear serial numbers and that what the first respondent instead prescribed in the Regulations is that the counterfoil of the ballot paper should bear a serial number. The Director concludes in respect of this complaint that:

“…in the absence of an attack on the relevant provision of s 130 of the Act, the regulations and the specimen of the ballot paper and counterfoil prescribed therein, the applicant’s claim are (sic) unfounded.”

The Director also points out that the applicants did not present evidence to show instances were ballot papers were unlawfully substituted, and he denies it ever happened.

In reply, the applicants persist that the serial numbers must be printed on the ballot paper and not on the counterfoil. This issue, therefore, presents itself as a question of law to be determined with due regard to the provisions of the Act (most notably sections 74(2), 81(1) and 130) and the constitutional principles relating to an election of this nature. That question, we shall endeavour to answer later in this judgment.

Complaint 2: Announcement of Contradictory of results

Engelbrecht avers that the Director announced contradictory results of the election. She alleges that four different results were in fact announced on different occasions by the Director. She states that she made a note of the results as announced by the Director on 21^st November 2004. She attaches those to her papers and it reflects the following:

These results and tallies are identical to the ones announced by the Director in his media release on the occasion of the official announcement of the final results. The release also gives the following tallies:

Total votes cast: 825 376

Votes Spoiled: 11 421

Valid Votes: 813 955

These tallies, Engelbrecht says, differ from those previously announced by the Director.

The Director then gave the following seat allocations in the media release:

The Director answers to this complaint as follows: The ballots cast in the election were counted at the various counting centers by returning officers who in turn forwarded the results to the “Central Election Results Center” (the “Results Center”) at the first respondent’s offices in Windhoek. There, the results were unofficially published as soon as they were “verified”. Eventually, the Results Center consolidated all the results received from the returning officers and the Director officially announced the result of the election as required by s 89 of the Act.

The Director states that when he made the announcement on 21 November 2004, he mistakenly stated that the total votes cast were 838 447 when he should have stated them as 827 042. He explained that the total votes rejected country-wide were 11 405 and, instead of those being deducted from the total number of votes cast, they were mistakenly added – thus giving the incorrect total of 838 447 announced. The Director says that it was simply an error in arithmetic. He says that the final and official results were eventually published on 3 January 2005 in the Government Gazette as follows:

The Director concedes that when the results were announced as shown above, there were 1682 votes which had not yet been allocated to the participating political parties, but explains that it was because it was so agreed with the participating political parties and that, in any event, such omission did not make any difference to the number of seats allocated to the different political parties.

The applicants were unmoved by this explanation. They dispute the role which the Results Center played in the process - saying that, in terms of the Act, the returning officers ought to have sent results to the Director and that the Results Centre had no business verifying results. They also make the point that in many cases the results forwarded by returning officers were changed after these were discussed with the Results Center. They also make the point that the political parties were not privy to the queries forwarded by or to the Results Center and were only allowed access to incomplete results after they had been verified by the Results Center – a statutory function which, they say, does not fall within the competence of the Results Center.

They also maintain that they cannot on face value accept the results announced because of the number of different results announced – a fact, they maintain, which justifies a recount at the very least as this may affect the number of seats allocated to participating parties.

Complaint 3: More votes cast than time would have allowed

Next, Engelbrecht describes the procedure that took place in polling stations during the election and concludes that it took about 3 – 5 minutes for one voter to be authenticated and to vote. As she puts it:

“As can be imagined, even without any hiccups this process took an average of at least between three and five minutes. Yet when the number of persons who voted is divided into time allowed for voting, it is clear that many more people had voted than was physically possible of doing so.”

She then refers to a calculation done by Ms Schimming-Chase of the Second Applicant to buttress this allegation. This averment is based on a false premise: It assumes that only one voter was, or could be, in the polling station at any given time during the 3 – 5 minute period it was suggested it took for a voter to be processed. In reality though, several other voters could be in the polling station doing different activities associated with the voting process during the 3 – 5 minute period it would take one voter to vote. Such that, for example, when voter X was being issued with the ballot paper to vote (the last stage of the process), voter Y would be marked with “indelible” ink on one of his or her nails, and voter Z would be busy having his voter card certified, etc, etc. Mr Frank SC, appearing on behalf of the applicants, conceded this much during argument and that should dispose of the need for this Court to deal any further with this complaint.

Complaint 4: “Elect 16” accounts and verifications either not made or not signed

Engelbrecht next avers that “Elect 16” forms to which they (the applicants) gained access as a result of the order made by Hoff J - forms whose purpose is to account in terms of s 85(3) of the Act for ballot papers issued to presiding officers - were either not verified, or were inadequately verified, in conflict with s 87 of the Act. The forms on which specific reliance is placed for this allegation are attached to the founding papers as “D1 to D49”; but in argument counsel also referred to “Elect 16” forms annexed in support of other complaints.

On the face of it “Elect 16” reads:

“Covering Ballot Paper Account by Presiding officer (section 85(3) of the Electoral Amendment Act, 1994”.

[It then has the following provision towards the bottom:]

“I, the undersigned, returning officer of the above mentioned constituency do hereby report that I have verified the ballot paper account handed to me by the presiding officer, and that the result of such verification is that the said account are correct, except for the following particulars:…………………………..

Date: ……… Place: …………… Returning Officer: …………….……”

Of the 49 “Elect 16’s” relied on by the applicant, only 28 of them relate to the election in dispute. That much became common cause during argument. And of these 28, 17 are signed by a presiding officer only; 8 are not signed at all; 2 are signed by a returning officer only and only one has been signed by both a presiding officer and a returning officer. It falls to be mentioned that a number of the forms are part of a series of returns or substituted and corrected duplicates thereof. For purposes of further calculations and our deliberations on the merits of this complaint hereunder, we shall bear that in mind. The ones attached under annexure “D” which we have taken into account relate to 10 197 ballot papers issued to the following constituencies: Kongola, Berseba, Ogongo, Engela and Gibeon.

Based on the allegations initially made, Engelbrecht states:

“As is evident from the said annexure “D” hereto, the non-compliance was not an isolated case but widespread … In fact it would appear that this was a widespread disregard to the provisions of the Act.”

The respondent admits that some of the “Elect 16’s” had not been signed either by the presiding officers, or by returning officers. He avers that the majority of them consist either of draft working documents or pages removed from a bundle of documents originally properly arranged and stapled together, but selectively removed by the applicants and are now presented in a manner (in this application) that is misleading. He then proceeds to give specific examples and, bolstered by supporting affidavits, endeavours to explain some of the omissions away. As to the rest of the forms complained about, he says:

“there were few instances where the returns were not properly completed by some of the presiding or returning officers. In those instances all the votes cast were properly accounted for… the incomplete returns did not violate the principles contemplated in Part 5 of the Act, in terms of which the first respondent and the Directorate of elections conducted the elections.”

The Director avers further that the applicants failed to show that the irregularities relied upon by them have or might have affected the results of the election and that their candidates, or those of other registered political parties would, or might have, been elected, had the irregularities not taken place. He concludes that the applicants failed to satisfy the requirements of sections 95 and 116 of the Act.

Replying to these explanations, the applicants deny that the instances of returns improperly completed are few and say that it was more the rule than the exception and maintain that such non-compliance affected the result of the election. Dismissing the Director’s explanation that some of the documents were working documents, Engelbrecht points out that it is of some significance that the Director fails to provide the proper returns in his answer.

Complaint 5: “Elect 16” forms not completed

Engelbrecht alleges that 7 returns: (E1 – E7), relating to 3 100 ballot papers, are incomplete returns as none of the identifying details relating to polling stations, constituencies and regions are provided and that some are also not signed by the presiding officer, nor verified by a returning officer.

Whereas the Director admits that those details had not been entered on these annexures, he maintains that the first respondent was and still is able to allocate votes to constituencies in respect of certain polling stations whose returns had not been adequately verified. This, he says, was done by cross-referencing the ballot papers’ serial numbers recorded in Elect 16, Elect 21 and Elect 22 forms.

He adds that those forms were in any event in envelopes and that they were clearly marked with the names of the polling stations where they had been used. He attaches photocopies of those envelopes as a bundle marked annexure “PK18”.

The Director then continues that-

“any genuine omission on the part of the returning officer to endorse the Elect 16 form as indicated by the Deponent, do not constitute a violation of any of the provisions of the Act.”

As for annexures E1, E2 and E5 to E7 - being documents emanating from Tsaraxa-Aibes and DRC polling stations respectively according to the Director - the deponent Engelbrecht remarks in reply that the Director does not give any reasons for his view, considering that support for it is not so self-evident by looking at those documents. She points out that the Director failed to explain the origin of annexures E3 and E4. She then makes the point that it is not acceptable for the Director to simply say that they have in place a system of tracking ballots which only they know how as those participating in the election should also be able to do so and that in any event such system must comply with the provisions of the Act. The assertion that the first respondent could through a network of electoral forms track all sensitive electoral material is denied in any event by this deponent.

Complaint 6: “Elect 16” incorrect accounting and verification of ballots

Next Engelbrecht says:

“Furthermore not in all cases where returns were done, albeit incompletely, the figures add up correctly. As examples I annex hereto Annexures “G1 to G5”, copies of such returns which on their faces indicate that more ballots were counted than ballot papers issued.”

It is now common cause that of these annexures, only 2 relate to the present election, and they account for 1500 ballot papers received and relate to the Karibib and Elim constituencies. Therefore, we shall only summarise the Director’s response to those.

The Director disputes that annexure G1 is a “return” and avers that it is a scrap paper used by the presiding officer to calculate results which needed to be recorded on the Elect form. This much is confirmed by the confirmatory affidavit of the presiding officer concerned – one Mondias Karimubue.

The Director admits the error on the face of the return marked “G2” and says that if the “accounted ballot papers” are added together it gives a total of 1000.

Complaint 7: “Elect 16” omitting serial numbers

Engelbrecht then deposes that returns from the Karasburg and Windhoek-West constituencies do not indicate serial numbers of ballot paper books. This, she says, makes it impossible to scrutinize and verify the results and “opened the door to undetected fraud.” These returns account for 8300 ballot papers received.

As regards the “Elect 16” returns from the Karasburg constituency, the Director says that they were not official returns but the working documents of one Isabella Meriam Swartbooi, a returning officer for the Aussenkehr polling station in that constituency. Those returns, as far as this election is concerned, relate to 5700 ballot papers and are indeed signed by Swartbooi in her capacity as returning officer. There is no signature of a presiding officer. It falls to be noted that Swartbooi does not, with her confirmatory affidavit, include the actual return she submitted.

The “Elect 16” return from the Windhoek West Constituency relates to 2400 ballot papers. The Director does not explain why the serial numbers of those ballot papers have not been entered in this return and how it could have been signed by the presiding officer and verified by a returning officer in those circumstances.

Another of those returns has no identifying details and refers to 2 100 ballot papers received. It is not clear which election it relates to. Similarly, the last of those returns also does not indicate which election it relates to but is dated 16.11.04 (presiding officer) and 18.11.04 (returning officer) and relates to 1 200 ballot papers. The Director does not comment on these two returns – he does not even deny that they relate to the election.

Complaint 8: Ballot paper books with more than 100 ballot papers

Engelbrecht then avers that in the previous application the Director had deposed that ballot paper books contained 100 ballot papers each. This, Engelbrecht says, is incorrect because annexures J 1 to J 5 evidence ballot paper books containing ballot papers in excess of 100, contradicting the version of the Director.

The Director explains that through an inadvertent error of the printers, some ballot paper books had one or two more than 100 ballot papers but contends that this error did not affect the integrity or result of the electoral process.

Complaint 9: Unsigned amendments of “Elect 16”

Engelbrecht also complains that on a number of returns (annexures K 1 to K 6) changes were made without any signature “verifying or relating to such changes”. These returns relate to 5 705 ballot papers. Annexures K 3 and K 5, it was later conceded, do not relate to the election. The remainder involve 5 002 ballot papers.

The Director does not take issue with the absence of verifying signatures on those documents, but points out that errors made had to be corrected. The officers, he says, are not lawyers accustomed to such formalities and the shortcomings, in any event, did not affect the outcome of the result of the election.

Complaint 10: Fourfold accounting for tendered ballots at Anumalenge

Next, Engelbrecht complains that in respect of the Anamulenge constituency, tendered ballots were accounted for four times. She points to “L 1 to L 5” to buttress this allegation. On this version 88 votes are involved. The Director denies this allegation, saying that what the applicants are relying on are simply 4 photocopies of the same document.

Complaint 11: Double voting

Engelbrecht then alleges that in some constituencies voters voted twice, once normally and once by tendered ballot. She annexes “M 1 to M 20” in support of this allegation. Those annexures are copies of “Elect 23” forms on which particulars of voters to whom tendered ballots had been issued, were recorded. If the entries made are to be believed, a number of tendered votes have been issued in certain constituencies to voters registered in those (not other) constituencies. On this version 410 votes are affected.

The Director denies the allegation. He says that the error committed by the presiding officers concerned is apparent: instead of writing the name of the constituency where the tendered ballots were cast at the top of the form, the polling officers wrote the names of the constituencies where the voter casting the tendered ballot was registered. He says this can be verified from the voters’ register.

Complaint 12: Unsigned “Elect 22” forms

Engelbrecht then alleges that ballot papers distributed to polling stations were not all allocated or signed for on receipt, making it impossible to ascertain whether any irregularities occurred. She annexes “N 1 to N 45” in support of this allegation. It must be noted in passing that no averment is made that the annexures relate to the election in dispute.

Complaint 13: Unsigned “Elect 21” forms

Engelbrecht then alleges that in a number of constituencies, as evidenced in her annexures “O 1 to O 13”, presiding officers did not sign to acknowledge receipt of ballot paper books. She alleges that this raises the question whether those books were in fact received. She adds that without a cross reference to the returns in terms of sections 85 and 87, there was no way of knowing how the ballots concerned were accounted for. Here too, no averment is made that the annexures relate to the election in dispute.

As for annexures “N1 to N45” and “O1 to O 13” (this and the previous complaint), the Director disputes they are forms required by statute. He says that they have been used to keep track of “all sensitive electoral material” and that the first respondent had systems in place for that purpose. The first respondent thus disputes the allegation that they were unable to reconcile electoral material. The Director specifically disputes that ballot papers used could not be accounted for even though the forms had not been signed.

Complaint 14: Disregard of tendered votes cast abroad and elsewhere

Engelbrecht next alleges that the results of the election were announced without taking into account the overseas votes; and that some tendered votes were only forwarded to the Director subsequent to the announcement of the results. These votes were thus not included in the final results announced on 21 November 2004. It is common cause that the overseas votes amount to 804, while the tendered ballots referred to total 504 votes, thus giving a total of 1 308 votes.

The Director does not dispute that these votes were not included in the final result announced on 21 November 2004. He points out, however, that the applicants consented to the final results being announced without the 804 overseas votes, and that the 504 tendered votes did not affect those results. The outstanding foreign votes, the Director says, were discussed at a meeting with representatives of political parties and it was clear that these would not affect the allocation of the number of seats in the National Assembly. He persists that when the queries were finally replied to by the returning officers affected, and the foreign vote finally allocated, there was an “overall difference of just 1 682 in respect of valid votes, and none of the political parties gained or lost a seat, as a result of this difference.”

The applicants dispute the Director’s assertion that they agreed to the results being announced without the foreign vote and annex a letter dated 20 November 2004 showing first applicant did not agree with the course taken by first respondent. Engelbrecht says that the parties were not told that the foreign vote was still outstanding.

Complaint 15: Failure to preserve original returns

It is alleged that not all original returns are being preserved as evidenced by the documents annexed as “Q 1 to Q 5” found at the dump of the Government Garage.

The Director disputes the allegation on which this complaint is based and points out that the applicants have failed to show the circumstances in which these annexures were found. He also says that Engelbrecht fails to allege that she found the documents and for that purpose her complaint amounts to inadmissible hearsay. He also denies that the originals are not being preserved. Moreover, the Director also denies that it has been demonstrated that the documents referred to in any way affected the outcome of the election.

Complaint 16: Failure to refer to voters’ register at Omusati Project polling station

It is said that the Omusati Project polling station was so remote and isolated that it could not have had access to a computer to gain access to the electronic voters’ register. Yet, it is pointed out, that a high number of tendered votes had been cast there. The applicants complain that, in the absence of a computer there, the voters roll could not be checked and, therefore, the inference must be drawn that either double voting took place or that the ballot boxes were stuffed by some unscrupulous person. The tendered votes referred to total 251.

The Director firstly denies that Omusati Project is isolated and, secondly, he says the allegations are speculative and have no factual basis.

Complaint 17: Failure to record voters’ registration numbers at Okalongo

It is alleged that in the Okalongo constituency of the Omusati region, 71 voters were allowed to vote without voters’ registration numbers being recorded.

The Director disputes that any voter voted without a registration card. He makes the point that voter registration cards are issued with serial numbers. He avers that although the presiding officer did not write down the voters’ registration numbers on the Elect 23 form as he was required to do, he instead wrote down the names of the voters on that form. At the polls the registration numbers of those voters were in any event recorded on the counterfoils of the ballot papers issued to them and they could in turn be verified with the voters’ register, which the applicants have access to. The error is confirmed by the affidavit of the returning officer concerned.

Complaint 18: Difference between reported and announced results

It is complained that in the named constituencies, there is a difference between the tallies forwarded by returning officers and those announced by the first respondent. In respect of Ongwediva, it is alleged, the difference is 367 while in respect of Oshakati it is 6039.

As for Complaint 18, the Director avers that he does not know where Engelbrecht got the numbers she refers to and says that he stands by the results as announced and gazetted. The Director retorts that the applicants were aware that the results announced as an-ongoing-information-exercise during the counting process, were provisional and subject to change as queries from the first respondent to the counting centers were being replied to and that some of the responses were only received several hours or days later. This, he says, explains why results were sometimes different and contradictory and concludes his response on this complaint as follows:

“Due to the low level and extent of inconsistencies and their statistical insignificance, the first respondent consulted with the political parties at the meeting held on 20^th November 2004, and thereafter decided that the announcement of the results be made, notwithstanding the outstanding queries.”

Complaint 19: Difference between account and verification at Walvis Bay

It is complained that in the Walvis Bay Rural Constituency the return of the presiding officer gives a total of 2900 ballot papers, while the return of the returning officer totals 929 votes. It is alleged that this shows that between the polling station and the return to the first respondent, 1971 votes “went missing”.

The Director disputes the calculations of the applicants and sets out the tally given by the returning officer in which the ballots, the votes cast, and those rejected, are set out. The Director admits though that the returning officer in error failed to record the 956 tendered votes (of which 6 were rejected) on the Elect 17 form but instead recorded that on the Elect 30(b) form. The tendered votes, he says, were in any event allocated to the political parties for whom the votes were cast. The form erroneously completed is annexed to the papers in substantiation of the explanation.

Complaint 20: Voting percentages in excess of 100%

An extract is then provided from a local daily, Republikein 2000, showing that the first respondent had issued results on the internet showing more than 100% votes recorded in 10 named constituencies. It is then alleged that in no constituency can more people vote than are registered. In the same vein, another reference is made to a report by a non-governmental organization known as “National Society for Human Rights” pointing to what are referred to as ‘ridiculous discrepancies’ in the final results allegedly published by the first respondent on its internet website.

In response to this complaint, the Director makes the point that applicants have failed to have regard to the fact that on account of tendered votes being cast in a constituency, and depending on the percentage turn-out of the local voters, there is the potential that the tendered votes may push the percentage of voters in a given constituency to more than the number of voters registered there. The Director denies what he characterizes as the “unsubstantiated” allegation that in the 10 named constituencies which at the time when the provisional results were announced showed more than a 100% voter turnout as shown on the website, did not in the final results show such a turnout. The Director attaches “PK 27”, which is an extract of the final result in respect of the Windhoek East Constituency (one of the 10 referred to by the applicants), to show that it records a more than 100% percentage votes cast.

The Director dismisses as speculation the statements attributed to the National Society for Human Rights.

In reply, the applicants do not accept the Director’s explanation of this phenomenon on the basis of the tendered votes cast and says that, in terms of the Act, tendered votes ought to have been accounted for in the constituencies where the voters casting them were registered. Furthermore, they maintain, no result of any constituency could have been announced before all votes, including tendered votes, could be accounted for in the constituency.

Complaint 21: Difference between results released and returns rendered

It is complained that in Anamulenge, Elim and Tsandi constituencies, the results released do not tally with the returns provided. The difference, taking together all those constituencies, is a total of 2769 votes. No supporting document is annexed to buttress this allegation. The Director disputes the allegations underpinning this complaint and provides Annexures “PK 28”, “PK 29” and “PK 30” to gainsay the discrepancies alleged by the applicants in respect of those constituencies.

Complaint 22: Swakopmund irregularities

Again reference is made to the internet website of the first respondent in relation to the Swakopmund constituency, which, it is alleged, indicates that 16016 ballots were cast, while the returns (Elect 17) indicate only 12549 valid votes, giving a discrepancy of 3457 votes. The further allegation is made in respect of Swakopmund that the valid votes cast (as per Elect 16) differs from that posted on the first respondent’s website, by a margin of 1887 votes. It is also alleged that in Swakopmund the returns show that 8771 votes were cast as tendered votes, but that none of the returns in respect of such tendered votes is signed by the returning officer.

As regards this complaint, the Director avers that all ballot papers issued to Swakopmund are accounted for. The Director also attaches the confirmatory affidavit of the returning officer for that constituency, one Vilho Kaulinge, who says that the Elect 32(b)-forms in respect of the Swakopmund constituency represents the complete picture of the total number of ballots cast. We note in passing that the applicants’ allegation that not a single return is signed, is not dealt with by the Director. He however annexes a “Summary of Results of Ordinary and Tendered Votes” to show how the ordinary ballots, tendered ballots, ballots rejected, ballots counted were recorded. This “Summary” is however not signed by anyone.

Complaint 23: “Stuffing” of ballot boxes and election fraud

Many of the applicants’ complaints are presented either as the causes of or as the consequences of inferred ballot box-stuffing. As we shall soon show, they allege that first respondent’s failure to print serial numbers on the ballot papers allowed for unscrupulous persons to substitute ballot papers without any mechanism to detect such an irregularity. In support of the inference they seek to draw, they cite as examples the excessive number of ballots cast within the limited time allowed at certain polling stations; the excessive voting percentages in a number of constituencies, the Okahandja incident of discarded ballots cast in favour of minority parties, etc.

The first respondent firmly rejects these allegations as unfounded and speculative. The Director emphatically denies the suggestions of election fraud and widespread irregularities. To put the alleged mistakes and irregularities into perspective, the Director explains the manner in which the first respondent conducted the election and makes reference to measures taken to ensure transparency and to assure that the election was fair.

In this regard he refers to the existence of a voters’ roll to which all participating political parties have access. Participating political parties were able to know from the voters’ roll, the details of all Namibian citizens registered as voters. The Director then refers to the fact that participating political parties, as registered political parties, were entitled to appoint electoral agents who in turn were entitled to attend, inspect and observe the premises where ballot papers were printed; the actual printing of the ballot papers (a process in fact observed by the political parties’ agents, including those of the applicants); the emptying of all ballot boxes delivered at all polling stations 30 minutes before voting commenced; the inspection and sealing of ballot boxes at polling stations; voting when it takes place at polling stations; the sealing and placing of seals of their political parties when ballot boxes are full, and the sealing of packets containing all ballot paper books and other electoral material by presiding officers after voting had stopped.

The Director further avers that the participating political parties are also entitled to appoint counting agents who in turn are entitled to be present when ballot boxes are opened and to inspect seals affixed thereon before the ballot boxes are opened for counting; observe the actual counting of ballot papers by returning officers and to request a recount of ballot papers whenever they are not satisfied with the initial counting.

The Director makes the point that the applicants were entitled to ensure that their counting agents attended counting stations and he then invites the applicants to indicate whether their counting agents attended counting stations, and if not, why they chose not to be present.

The Director points out that first respondent appointed presiding officers who were responsible for the control of voting at polling stations. Also appointed, were returning officers who were responsible for the receipt of ballot boxes and other election material and equipment from presiding officers after polling stations had been closed; and verification of returns submitted by returning officers. Crucially, such verification includes the number of ballot papers used and not used at polling stations; the counting of ballot papers and the rendering of returns and reports on the result of the election in constituencies.

The Director avers that all constituencies received, before voting commenced, ballot boxes and ballot paper books with ballot papers. The serial numbers of the counterfoils of ballot papers thus allocated were then recorded by the electoral logistics personnel on “Elect 21” forms. The Director avers that delivery of election material to polling stations was escorted by members of the Namibian Police and election agents of participating political parties were required to keep records of serial numbers of ballot paper books delivered to polling stations.

The Director avers that when voting commenced, there were instances where ballot papers ran out at some polling stations. In those cases, additional ballot paper books with ballot papers would be provided from reserves or from other polling stations which had more than enough ballot papers. In those cases, “Elect 21” and “Elect 31” forms would be completed.

The Director avers further that during polling, the Namibian Police secured the premises and election agents were also present as observers. After polling, ballot boxes were sealed by presiding officers and election agents or registered political parties present at polling stations were entitled to affix seals of their political parties on the ballot boxes containing ballot papers before these were transported to counting stations. The Namibian Police were present at every polling station to safeguard election materials and equipment, particularly the ballot boxes with ballot papers.

The Director then avers that at the counting venues, no ballot box with ballot papers was opened until the presiding officer had reconciled the ballot papers in the ballot box, the unused ballot papers and the spoiled ballots. The reconciliation was recorded on the “Elect 17” form.

The Director points out that the counting of votes that commenced on 17 November 2004 was controlled by returning officers. Votes counted were recorded per political party on “Elect 17” forms. Counting agents were also informed about the final results before they were announced and before they were transmitted to the Results Centre in Windhoek.

At the end of counting, ballot boxes containing used and unused ballot papers were sealed by the returning officers, and by election agents who chose to do so. The above process, the Director avers, shows that the election was conducted in accordance with the principles in Part V of the Act. The involvement of the Namibian Police, it is alleged, displaces the allegation of systematic cheating and manipulation of ballot papers and stuffing of ballot boxes.

The Director says that “Elect” 21– 27 and 31 forms are administrative forms not required by law – in the sense that they are prescribed “returns”. They were, it is alleged, taken by the applicants contrary to the order of Hoff, J. All applicants were entitled to in terms of the Court’s order, the Director states, were official returns contemplated in s85 of the Act. The Director further avers that the applicants were given access to all statutorily required returns but that they refused to copy all of them and instead demanded access to other documents – presumably not covered by the order. The Director states that Elects 16, 17, 18, 19, 20, 20(a), 30(b), 31(a), 32(a), 32(b) “are all returns designed to provide accurate information as regards results sent from the counting centers all over the country and received at the first respondent’s Results Centre.”

He then says:

“The forms were designed to provide a comprehensive supplementary system of checks and balances, so that minor mistakes contained in one or other of them would be detectable from the remainder of the electoral forms.”

Referring to the “Results Centre” process, the Director states that:

“It will require conspiracy on a grand scale to manipulate and rig elections in the way and manner alleged by the applicants.”

He also refers to the involvement of local and foreign observer missions, who, he says, effectively gave the election process a clean bill of health.

The Director concedes that in the conduct of the election “minor human errors” occurred but that these had no bearing on the number of seats allocated to the participating political parties. He states further that the applicants failed to make out a case that the totality of ballots cast and counted are more than the ballot papers lawfully issued to voters.

As far as the ballot papers found at Okahandja are concerned, the Director says that is now the subject of a police investigation. He refers to the various confirmatory affidavits on the issue which point to the fact that on 24^th November 2004, some election material fell from a Government truck which was driving from Okahandja to Windhoek. This material turned out to be about 22 ballot papers cast in favour of only opposition parties. Suggestions are being made in some of these confirmatory affidavits that those who came to handle the ballot papers subsequent to them falling off the truck, deliberately burnt some of them in order to strengthen the case of having the election declared null and void. An official of the second applicant has been implicated by one of the deponents to these confirmatory affidavits as the person who instigated the burning of the election material found in order to bolster the case, then impending, for the setting aside of the election.

In the replying affidavit filed on their behalf by Engelbrecht, the applicants persist in their allegation of ballot stuffing and the underlying cause thereof. Although they have not taken issue with many of the material and essential features of the election as explained by the Director, they seem to suggest that some of the rights accorded to political parties to monitor and verify the election process were more illusive than real. Without saying why, Engelbrecht avers that in some polling stations party agents could not enter the premises where the voting took place and were not able to observe the voting. It is not clear to us if she is alleging that the first respondent or anyone prevented them from exercising their statutory rights. She also points out that lack of manpower and financial resources resulted in the applicants being unable to assign counting agents to all constituencies but that that did not absolve the first respondent from completing returns properly. It has to be said that she does not say at how many constituencies they were not represented by counting agents in order to place the matter in some perspective.

She also says that the consultative mechanism referred to by the respondent was not of any use and that no minutes were kept of meetings and all the suggestions which the applicants made were ignored. As for the elaborate process set out by the Director of the manner the election was conducted, we discern in the reply that the deponent says that most averments (it is not said which ones) are hearsay but that in so far as the averments are intended to convey how the process should have been conducted, it is not disputed.

Engelbrecht also denies that any of the material relied upon by them in their founding papers and obtained in consequence of the order of Hoff, J are internal documents as stated by the Director in respect of some of the material, but that even if they were only internal material, the irregularities apparent from such documents characterize the chaos and flaws associated with the process such that no reliance can be placed on the results announced by the first respondent.

The deponent says that the reports of the Observers constitutes inadmissible hearsay, and, by reference to what is stated in the reports of the observers, points out that they did not give an unqualified approval of the process.

She also disputes that the applicants went beyond the terms of the order made by Hoff J in obtaining documents from the first respondent and states that all documents they took were made available to them by officials of first respondent.

The deponent states that the absence of an electronic voters’ register made it impossible for them, in the 5 days they had to check, whether the same voters’ registration numbers or other personal details occurred twice.

It is evident from this summary of the applicants’ complaints and the first respondent’s answers thereto that the litigants have diverging views on an important question of law bearing on the interpretation of s 74(2) of the Act and that a large number of factual disputes have presented themselves. Mr Maleka SC, appearing on behalf of the first respondent, refers to the interpretation contended for by the applicants as “the centerpiece” of their case. It is indeed the sole basis of the 1^st complaint concerning the serial numbers of ballot papers and the Court’s finding in that regard will also impact on the validity of a number of other complaints, as we shall presently show. For this reason we find it expedient to firstly deal with this legal issue and to address the factual issues that the other complaints present on the papers later in this judgment.

Legal Issue: Serial numbers of ballot papers and the interpretation of s74(2)

Central to the applicants’ contention that the election should be invalidated stands their interpretation of s 74(2)(b) of the Act. They contend that, properly construed, the provisions thereof require that the serial numbers of the ballot papers should have been printed on the ballot papers and not, as it were, on the counterfoils thereof. That interpretation constitutes the basis of a two-pronged attack: The failure to print the serial numbers on the ballot papers, they submit - (a) constitutes a “non-compliance” with the provisions of Part V of the Act on account of which the election should be avoided by the Court under s95 of the Act and (b) has also opened the door to the commission of an “irregularity” in the election process on account of which the Court should set the election aside as provided for in s 116(4) of the Act.

The “irregularity” complained of relates to the alleged fraudulent “stuffing” of ballot boxes alluded to under complaint 22: Without serial numbers printed on the face of the ballot papers, the applicants argue, unscrupulous persons intent on manipulating the results of the election could, without fear of discovery in the subsequent process of verification, remove ballots cast in favour of one or more political parties from ballot boxes and substitute them for ballots marked in favour of another. In support of this contention, they rely mainly on 3 alleged occurrences: (i) that more votes were cast at certain polling stations than time would have allowed for (complaint 3); (ii) that more votes were cast in certain constituencies than the number of voters actually registered there (complaint 20) and (iii) the so-called “Okahandja-incident”.

Without serial numbers printed on the ballot papers, the applicants contend, it is not possible to relate them to a particular polling station, constituency or region. That, in turn, makes it virtually impossible to ascertain whether ballot papers have been removed from or added to ballot boxes and diminishes the mechanisms needed to effectively scrutinise and verify the election process in the interest of transparency.

It is with these submissions in mind that we shall analyze the merits of the applicants’ complaints and assess their individual or cumulative impact, if any, on “the result of the election” as contemplated in sections 95 and 116(4) of the Act.

The essence of those complaints, as we have pointed out earlier, lies in the interpretation of s 74(2) supra of the Act and we shall deal with that first.

Mr Frank submits on behalf of the applicants that, properly construed, the words “serial numbers of the ballot papers” used in paragraph (b) of that subsection require by necessary implication that each ballot paper must have a serial number printed on it. Whilst he readily concedes that serial numbers have been printed on the counterfoils of the ballot papers as prescribed by annexure 3 of the regulations, he contends that the regulations are, to the extend of their inconsistency with the Act, either ultra vires or tacitly repealed.

Mr Maleka takes issue with the construction contended for by the applicants. He submits that the applicants are seeking to read the phrase “serial numbers of the ballot papers” as “serial numbers on the ballot papers” and argues that the requirement contended for by the applicants is not one of those expressly prescribed in s 81(2) of the Act. That subsection is specifically designed to define the form and contents of ballot papers. It provides:

“Every ballot paper shall be in the form as prescribed and shall contain –

1. in the case of an election on party lists –

9. the names, in alphabetical order, of the political parties taking part in the election;

2. the abbreviated name, if any, of each such political party;

3. the distinctive symbol, if any, of each such political party; and

4. the photo of the head of each such political party submitted in accordance with section 59(4) … and

(c) such other particulars as may be prescribed.”

Mr Maleka reasons that, in the absence of any express requirement that the serial numbers of ballot papers should be printed on the face thereof, the first respondent was entitled to prescribe by regulation that they should be printed on the counterfoils thereof instead. In response to the applicants’ contention that the regulations are invalid to the extent that they require the serial numbers to be printed on the counterfoils of the ballot papers and not on the ballot papers themselves, he states that they are precluded from raising that point in reply. If the first respondent had been alerted to such an attack in the notice of motion or founding affidavit, it could have made out a case in the answering affidavit that the Court should not strike it as ultra vires but to rather make an order in terms of Article 25(1)(a) of the Constitution.

We pause here to point out that when the regulations were promulgated in 1992 and amended in 1994, s 74(2) was not yet part of the Act in its current form. That subsection was initially repealed by section 30(b) of the Electoral Amendment Act, 1994 and only inserted in its current form by s 12(b) of the Electoral Amendment Act, 1998. The first respondent was therefore acting entirely within its vires when, in 1992 and 1994, it prescribed in annexure 3 of the regulations that the serial numbers should be printed on the counterfoils of ballot papers. What falls to be considered is the effect, if any, of the 1998 introduction of s 74(2)(b) on the contents of a ballot paper and the regulations which had been made in that regard.

Mr Frank contends that if the Legislature intended the serial numbers to be printed on the counterfoils, it would have used the words “serial numbers of the counterfoils of the ballot papers” instead of “serial numbers of the ballot papers”. He points to other provisions of the Act from which it is apparent that Parliament was clearly aware of the difference between a “ballot paper” and the “counterfoil of a ballot paper”. He refers, for example, to the wording of s 82(9) of the Act which requires of a presiding or polling officer to “enter the voter registration number of the voter in the ballot paper book on the counterfoil of a ballot paper” (see: par (a) thereof) and to “detach such ballot paper from its counterfoil and deliver it to the voter” (par (b) thereof). Other similar examples are to be found in sections 83(c) and 85(1)(b)(iii). The first respondent was also aware of the statutory distinction: that much is clear from the different forms for ballot papers and their counterfoils prescribed in the regulations. In that context, it is of some significance that the regulations label the number to be printed on the counterfoil of the ballot paper as the “serial number of counterfoil” and does not refer to it as the “serial number of the ballot paper”.

There is some authority for the contention that a difference in the phraseology employed by the Legislature in the same statute (e.g. between “ballot paper” and “counterfoil of the ballot paper”) prima facie justifies an assumption that it imports a change in the intention of the Legislature (c.f. Shalom Investments (Pty) Ltd and Others v Dan River Mills Incorporated, 1971 (1) SA 689 (A) at 701C; Port Elizabeth Municipal Council v. Port Elizabeth Electric Tramway Co. Ltd., 1947 (2) SA 1269 (AD) at 1279, and R. v. Sisilane, 1959 (2) SA 448 (AD) at 453F).

This is, however, only one of the presumptions employed as an aid in the construction of statutes and, as Ogilvie Thompson JA said in R v Shole, 1960 (4) SA 781 (A) at 787B “…a change in wording does not always and inevitably denote a change of intention (see Craies Statute Law, 5th ed. pp. 135 - 136)”. Devenish, Interpretation of Statutes, (1^st ed., 2^nd imp., 1996) points out at p 218, correctly so in our view, that the decisive factor is, as always, the intention of the Legislature and that contextual interpretation takes precedence over the presumption of consistency in the construction of the same word in different parts of a statute (c.f. S v ffrench-Beytagh (1), 1971(4) SA 333 (T) at 334) and the converse of that presumption - on which Mr Frank relies.

When assessing the import of the distinction drawn in the statute between the phrases “ballot paper” and “counterfoil of the ballot paper”, it is vital to consider the ordinary meaning of the word “counterfoil”: it is defined in “The Shorter Oxford English Dictionary on Historical Principles ” (Vol 1, 3^rd ed., 1990 reprint) as “a complimentary part of a bank cheque, receipt, or the like, containing the particulars of the principal part, to be retained by the person who gives out that part”. Three things characterise a counterfoil according to the definition: The counterfoil is a complimentary part of the principal document; it contains the particulars of the principal part and is to be retained by the person who gives out the principal part. From these characteristics, the function of a counterfoil is at once apparent: it is retained as a complimentary part of the principal document by the person who has issued the latter as a record containing particulars of the principal document. So, for example, in the case of bank cheques issued, may it contain particulars of the cheque number, the date thereof, the name of the drawee and the amount for which it has been issued (c.f. Law Society of the Cape of Good Hope v C, 1986 (1) SA 616 (A) at 624H and 626B); in the case of a postal order counterfoil, it may contain the postal order number and amount thereof (c.f. S v Williams, 1965 (2) SA 567 (C) at 567G) and in the case of a driver’s licence counterfoil, it may contain the driver’s licence number and particulars of the person to whom it has been issued (c.f. S v Jass, 1965 (3) SA 248 (E) at 249F).

The complimentary nature of a counterfoil as part of a ballot paper becomes all the more clear when one considers the information to be printed (the serial number of the counterfoil, the nature of the election, the name of the constituency and the date of the election) and noted (the registration number of the voter) thereon in terms of Annexure 3 of the regulations.

The Legislature, it seems to us, was alert to the fact that, by definition, a counterfoil is a complimentary part of the principal document (in this case, the ballot paper). This much is apparent from the corrections brought about by s 36(h) of the Electoral Amendment Act, 1994 to the earlier formulation of s 82(9)(a) and (b) of the Act. Before their amendment those paragraphs required of a presiding or polling officer to –

“(a) enter the registration number of the voter on the counterfoil on the ballot paper book;

(b) tear out a ballot paper from the ballot paper book marked on the back with the official stamp;”

The phrase “counterfoil on the ballot paper book” in paragraph (a) was, even on a beneficial construction, not a clear reference to the “counterfoil of the ballot paper”. Similarly, it was not clear from para (b) whether the counterfoil, being a complimentary part of the ballot paper, should also be torn out of the ballot paper book. Hence, by the substitution of those paragraphs in 1994, the Legislature made it clear in paragraph (a) that the presiding or polling officer must “enter the voter registration number of the voter in the ballot paper book on the counterfoil of a ballot paper” and, in paragraph (b), that he or she must then “detach such ballot paper from its counterfoil and deliver it to the voter” (our emphasis). The words in italics (and in particular the use of the word “its” in paragraph (b)) make it clear that the counterfoils are, correctly so, considered by the Legislature as complimentary and detachable parts of the ballot papers in a ballot paper book.

Inasmuch as the counterfoil is part of the ballot paper to which it is attached – albeit a complimentary and detachable part – the particulars to be printed and noted thereon are, according to the ordinary grammatical meaning of the word “counterfoil”, “particulars of the principal document”, i.e. the “principal document” being the detachable ballot paper to be handed over to the voter. It follows as a matter of logic that the serial numbers printed on counterfoils of ballot papers are therefore “the serial numbers of the ballot papers”. This phrase is the one used in s 74(2) of the Act and, for the reasons given, it was not necessary for the Legislature to use the phraseology suggested by the applicants.

What is more, we find strong support for this construction upon a contextual approach to the interpretation of the phrases “counterfoil of a ballot paper” and “ballot paper”.

It is not in issue that the secrecy with which every enfranchised voter should be allowed to cast his or her vote is one of the most fundamental principles of the election process written into the provisions of Part V of the Act. This is to be expected in any democratic society. The guaranteed and demonstrable secrecy of the ballot is an indispensable prerequisite for the free election of the people’s representatives in a democratic state. Without the knowledge that his or her vote will be cast and kept in secret, the freedom with which a voter will exercise his or her fundamental democratic right to participate in the conduct of public affairs through elected representatives is likely to be compromised. Without the knowledge and guarantee of secrecy, real and imaginary fears of retribution, discrimination and rejection are likely to influence the political choices of enfranchised voters. Instead of the ballot being an instrument of political freedom, it may become one of oppression if the principle of secrecy is violated: thereby negating the very reason and essence of its existence.

After all, the historical context in which the word “ballot” found its way into the English language implies an element of secrecy in the vote cast. The history and meaning of the word was discussed by the Australian Federal Court in the matter of Len Colbung; Dennis Eggington; Terrence Garlett; Robert Isaacs; John Kalin; Larry Kickett; John Mcquire; Jim Morrison; Frank Nannup; John Pell; Neil Phillips; Spencer Riley; Rob Riley; Jack Walley; Gloria Walley; Ted Wilkes; Laurel Winder and The Australian Electoral Commission NO., (1992) 107 ALR 514 at par [27]:

“The word ‘ballot’ derives from the Italian ‘ballotta’ meaning a round bullet or little ball. Ballotta was used in mid 16th century Italy to designate a system of secret voting using coloured balls, beans or other objects - Fredman - The Australian Ballot: The Story of an American Reform (1968) Mich. State U.P. It also described the objects used in the system.

In its original ordinary English meaning it imported the notion of secrecy being variously defined in the Oxford English Dictionary as ‘a small ball used for secret voting; hence by extension a ticket or paper so used’ and ‘the method or system of secret voting, originally by means of small balls placed in an urn or box; an application of this mode of voting; also the whole number of votes thus recorded’. The word ‘ballot’, it has been said, implies secrecy of voting although ‘sometimes used loosely and perhaps incorrectly - in a more general way as indicating a method of voting by written or printed slips of paper as contrasted with open voting’ - The Maple Valley Case (1926) 1 DLR 808 at 813”

One of the more profound lessons in democracy learnt from history is that a vote, other than by secret ballot, leaves itself open to abuse. Commenting on parliamentary elections conducted more than a century ago in Britain by poll whereby a voter's name, qualification and vote were recorded in a book open for public inspection, Lord Denning M.R. described the result thereof as follows in Morgan v Simpson, (1974) 3 All ER 722 at 726:

“Such was the method of election at common law. It was open. Not by secret ballot. Being open, it was disgraced by abuses of every kind, especially at parliamentary elections. Bribery, corruption, treating, personation, were rampant.”

The freedom of choice which must permeate all procedures devised for the election of parliamentary representatives is also echoed in the preamble to the Constitution (“Whereas the said rights are most effectively maintained and protected in a democratic society, where the government is responsible to freely elected representatives of the people, operating under a sovereign constitution and a free and independent judiciary”) and entrenched in Article 17(1) (“freely chosen representatives”) thereof. Without adequate balloting procedures to observe secrecy and a public awareness that the person or party voted for will remain an inviolable secret of every voter, an election is not truly free. Thus, the concept of secrecy - as far as the ballot paper is concerned - is pivotal to a free election and, as such, constitutes a principle which outweighs many - if not most - of the other contained in Part V of the Act.

That principle will be negated if the same serial number appears on both the ballot paper and its counterfoil: It will theoretically be possible to determine exactly how every voter has voted if regard is being had to the registration numbers of voters noted on the counterfoils. That much is common cause. Would it be different if s 74(2) of the Act falls to be interpreted - as the applicants contend – that the serial numbers must be printed on the ballot papers and not on the counterfoils? We think not.

Ballot papers are bound in ballot paper books. In the interest of transparency and accountability, the serial numbers of all the ballot papers in those books are recorded in relation to each polling station on lists provided to every political party taking part in the election (s 74(2)(b)); they are accounted for by the presiding officers receiving them at such polling stations (s 85(3)) and verified by returning officers at counting stations (s 87(2)(a)). Moreover, the registration number of each voter to which a ballot paper is issued, must be noted on the counterfoil of that ballot paper (s 82(9)(a)).

If the serial numbers of ballot papers are printed on the ballot papers, it will be easy to determine for which party the last voter at a particular polling station has voted, i.e. by simply looking at the number of the first remaining ballot paper in the book and finding the ballot paper in the ballot box with a serial number immediately preceding that one. So too, would it be possible to determine for which person the second last person had voted for …and the one before that … and, eventually, by a process of counting backwards, how every person had voted at a particular polling station. This is perhaps best illustrated by an example: If the first remaining ballot paper in a ballot paper book is numbered 1050, the registration number of the 49^th last person who had voted would appear on the first counterfoil of the ballot paper book containing serial numbers 1001 – 1100 and the serial number on the ballot paper issued to him or her would therefore be 1001; the voter’s registration number of the second last person who had voted would appear on the second last counterfoil from which a ballot paper had been detached and the serial number of the detached ballot paper would be 1048, etc.

The determination of a voter’s vote by the process of counting backwards and cross-referencing voter’s registration numbers with the serial numbers of ballot papers will be so much easier if one bears in mind that each ballot paper book contains a specific number of ballot papers - with a few exceptions, all the ballot paper books used in this election contained 100 ballot papers – and that the serial numbers of the ballot papers in different books handed to presiding officers also follow in sequential order on one another (e.g. if 3 ballot paper books are handed over to a presiding officer, the serial numbers of the 300 ballot papers contained therein are likely to follow in sequential order, i.e. from 1001-1100, 1101-1200 and 1201-1300).

In short, a person in possession of a ballot paper book will be able to determine and note the serial number of each ballot paper on the counterfoil thereof and, by simply looking for the ballot paper with that serial number in the ballot box and comparing it with the voter’s registration number on the counterfoil, will be able to determine the identity of the voter from the voters’ register and see which party he or she has voted for.

The interpretation contended for by the applicants therefore has the capacity to destroy the secrecy of the ballot and to undermine a principle which constitutes an essential element of a free election. As we have illustrated earlier, without adequate balloting procedures in place to observe and protect the secrecy of every vote cast, an election of this nature would not be free. To suggest that by the 1998 amendment of s 74(2) Parliament sought to destroy the principle of secrecy, which it has previously so carefully woven into the cloth of election procedures devised in Part V of the Act, is untenable. Such an unjust – if not absurd – result could not have been countenanced, much less intended, by Parliament.

In the premises, we reject the applicants’ contention that s 74(2)(b) of the Act requires that the serial numbers of ballot papers must be printed on the face of ballot papers to be issued to voters. By causing the numbers of the ballot papers to be printed on their counterfoils, the first respondent acted both within the letter and “spirit” of the Act. It follows from this finding that the absence of printed serial numbers on the detached ballot papers issued to voters does not constitute a “mistake or non-compliance” on account of which the Court may set aside the election under s 95 of the Act. The applicant’s attack on the validity of the election brought on that premise must therefore fail. So too, must the applicant’s contention that respondent’s alleged “non-compliance” with s 74(2)(b) has allowed for the perpetration of an “irregularity” (such as the stuffing of ballot boxes) envisaged by s 116(4) of the Act.

What remains, however, is for the Court to consider whether, quite apart from the rejection of the applicants’ contentions as regards the interpretation of s 74(2), any stuffing has been established as a matter of fact on the evidence and, if so, whether it constitutes an irregularity which affected the result of the election. That is but one of the many issues that arises from the affidavits that we shall shortly discuss. Before we do that though, we shall pause to reflect on the circumstances under which the Court may invalidate the election and the burden of proof which each of the parties bear in that regard. With that in mind, we shall turn to the approach which the Court will adopt in deciding the disputes of fact and analyze the merits of the applicants’ complaints and their entitlement to the relief sought.

Election Applications and the Burden of Proof

Section 109 of the Act allows for an election application to be brought upon either one or both of the following complaints: in the case of an undue election of any person to the office of President or as any member of the National Assembly or a regional council or local authority council or in the case of an undue return in any of those elections. The factors which may give rise to the complaint, whether it is one about an undue election or one about an undue return, are the same, i.e. “by reason of want of qualification, disqualification, corrupt and illegal practice, irregularity or by reason of any other cause whatsoever”.

What is of significance though, is that in terms of s 116(4) of the Act, the Court may not set aside an election referred to in s 109 on account of any of those factors unless its impact – either singularly or collectively with others - is so substantial in the circumstances of the case that it can be said to “affect the result of the election”. As such, s 116(4) gives effect to the longstanding approach that an election of this nature is not inherently so fragile that it may be avoided for the slightest of reasons, but that it is robust enough to withstand attack unless shown to be so significantly flawed that its result is affected. Expounding the underlying reasons for this approach, Wessels JA said in De Villiers v Louw, 1931 AD 241 at 268:

"When, however, the election is sought to be set aside, the interest is as much that of the constituency as that of the parties to the election. If an election is set aside the whole electorate is affected, business is dislocated, expenses are incurred by the electors going to the poll, the business of hotels and public-houses is interfered with, and generally speaking a large number of people are greatly inconvenienced. It