IN THE ELECTORAL COURT OF SOUTH AFRICA
HELD AT BLOEMFONTEIN 

Case no: 5/2009
In the matter between:

NJABULISO ROBERT MVELASE ........................................................Appellant
THE AFRICAN NATIONAL CONGRESS..........................................Appellant 

and

THE ELECTORAL COMMISSION....................................................Respondent
THE CHIEF ELECTORAL OFFICER............................................Respondent
LINDANI MAXWELL MLABA........................................................... Respondent
THE INKATA FREEDOM PARTY..................................................Respondent
IMBABAZANE LOCAL MUNICIPALITY.............................................Respondent

JUDGMENT

Pillay J,
Introduction:
This appeal concerns the outcome of a by-election held on 4 March 2009 to fill a vacancy for Ward 3 on the Imbabazane Local Municipality Kwa-Zulu Natal.   Only two political parties contested the elections.   They were the
African National Congress (ANC) whose nominated member for the position was the first appellant and the Inkatha Freedom Party (IFP) whose nominated member was the third respondent. The ANC is a registered party in terms of the law and has as much interest in this matter as the first applicant and has clearly taken up this matter on its own behalf as well as that of the first applicant. The IFP is also a legally registered party with similar interest in the matter:
The result was published by the first respondent and the third respondent was declared duly elected having obtained 1068 votes as against 1043 of the first applicant.
Background:
On 6 March the ANC applied to the first respondent for a declaration that the results of the by-election were invalid and therefore set aside. This seems to be a notice of objection to the declared result as envisaged in 65 (1) of Act 27 of 2000. It is in essence an objection to the results because of an alleged violation(s) of Chapter 7 of the Municipal Electoral Act and its code of conduct as well as alleged violations of Section 87 of the Electoral Act as also Section 9 of Schedule 2 of its code of conduct. Therein, the applicants allege that persons under the auspices of the IFP had intimidated persons including those referred to as ANC voters. Their actions included abusive and threatening language, malicious damage to property, grievous bodily harm and attempted murder of ANC members at the five voting stations within ward three. The effect was that such voters did not vote and consequently the first and second applicants were prejudiced as these voters would have cast their votes in favour of the applicants.
On 10 March 2009, the first respondent responded ('response") indicating that: (a) it was of the view the section 65 procedure may not provide the most appropriate vehicle for proper investigation; (b) it had decided to proceed with the investigation of the incidents complained of by gathering information itself but also taking cognisance of the results of the investigations carried out by others;(c) after the investigation it would consider other legislative measures to deal with the matter. It also requested the second applicant to supply further information by 18 March 2009. The letter reads as follows:
ELECTORAL COMMISSION
10 March 2009
Mr Senzo Mchunu
ANC Provincial Secretary-General
Kwa-Zulu Natal
[Fax: (03) 307-5400]
Dear Mr Mchunu,
application for invalidation of by-election results for kz236 imbabazane, ward 3 held on 4 march 2009-06-30
By director of the Electoral Commission, I wish to inform you that the Commission has noted the contents of the documentation submitted in support of your objection under section 65 of the Local Government: Municipal Electoral Act, 2000.
In view of the following considerations section 65 objection procedures may perhaps not provide the most appropriate vehicle for a proper investigation of alleged irregular conduct before, during and after the election or for the pursuit of the relief you are seeking:
(1) Section 65 prescribes extremely tight timelines and was probably intended to provide an informal and inexpensive procedure to challenge the announced result of an election. Lengthy formal investigations of contested factual allegations were perhaps not intended.
(2) You have indicated that you intended forwarding further information to the Commission as it becomes available. To date you have not furnished us with that information.
The Commission has, however, decided to proceed with the investigation of the incidents complained of by gathering information itself but by also taking cognisance of the results of the investigations carried out by others, e.g., The South African Police Service. After completion of our investigation we shall consider other legislative measures to deal with the matter.
To facilitate the further consideration of the complaints, the Commission requests that by not later than Wednesday, 18 March 2009, you lodge with my office -
(1) further information you may wish to submit;
(2) by way of affidavit to cover any aspects of your allegations not yet so covered; and
(3) submission on how the alleged irregular conduct complained of had affected the number of votes cast for each of the candidates.
A copy of this letter will be sent to the Inkatha Freedom Party. That Party will be asked to lodge with me any submission they may wish to make, on or before Wednesday, 18 March 2009.
Yours sincerely.
HEAD: commissioner services
(Fax No: 012 428 5508)"
Second applicant indeed filed with the first respondent party forty affidavits on the 18 March 2009. These form part of the papers placed before this court and clearly allege assault, intimidation and even worse for the purpose of preventing them from voting. The vast majority of the deponents, in excess of thirty five, depose to having had the intention to cast their votes in favour of the Applicants. Those who did not declare their choice however confirm that the prevailing situation was tense and intimidating resulting in people either running away or being chased away from the voting stations before casting their votes.
Neither the fourth nor fifth respondents responded to the first respondent in regard to the allegations.
Further communication(s) in regard to the situation was addressed to the first respondent by the second appellant's representative enquiring about any progress and indicating that urgent resolution to the matter was sought and that the second respondent intended to join any proposed legal proceedings.
On the 3 April 2009, first respondent directed a letter to the second respondent indicating that a further report on the situation had become available, that the IFP had not made submissions and that it had decided to invoke section 77(1) of the Act in order to institute proceeding before an appropriate court.
There were further instances of communication between the first respondent and the representative of the second appellant until the 21 April 2009 when attorneys representing the second respondent sent a letter to the attorney representing the second appellant indicating that they were advising appropriate action to their client, (the first respondent)
On 30 April 2009 second appellant wrote to first respondent's legal representative again seeking information about progress in the matter especially in the light of the second appellant's "significant victory in ward 3 Imbabazane during the national election". The telephonic response was that no instruction had been forthcoming up till then.
On 5 2009, second appellant, through its legal representative, made a written demand of the first respondent for a decision in terms of section 65.
The second appellant contends that the failure of the first respondent to make a decision in terms of section 65(4) constituted a rejection of the objection.
An application for leave to appeal against the decision to reject the objection was granted by this Court.
Second appellant, first respondent and fourth respondent made written submission to this Court.
Ambit of Section 65
The first respondent contended that it did not have the power to deal with the complaints about infringements of the code of conduct and this was the terrain of the Electoral Court. Neither, it was contented, is Section 65(4) of the Act appropriate in the circumstances as the complaints do not fall within the purview of Section 65. Nor is it material to the determined and declared results.
It is further argued that the appellants ought to have resorted to taking up these issues in a court of law as it is the Electoral Court an not the first respondent which had jurisdiction to deal with all electoral disputes and complaints regarding infringement of the code of conduct.
The first respondent further contends that the application of Section 65 of the Act is confined specifically to voting or counting proceedings in the elections. It held the view that it did not have the power to determine that the by-election in question was not free and fair and consequently to declare the results invalid.
Section 65 (1) provides that:
"(1) An interested party may lodge an objection concerning any aspect of an election that is material to the declared result of an election with the commission........."
This submission overlooks the import and the actual complaint(s). It specifically calls into question the declared results of the by-election because of the alleged infringements. It does not ask the first respondent to deal with the violations of the code of conduct per se.
The violations are in fact secondary to the actual complaint or objection which is that the declared result is defective (because of the secondary issues).
This is precisely the misinterpretation of the Act by the first respondent. It lead to confusion and therefore the present situation. The infringements of the code of conduct relied upon by the appellants clearly fall within the purview of Section 65(1) because of the material effect that such infringements had on the declared result of the election in question. As was held in Mketsa and others v African National Congress and others 2003(2) SA 1 SCA at para 9, expression 'any aspect of an election' is wide enough to encompass the (an) objection in question, particularly when considered in the light of the effect which the objection would have on the election result.
If the focus of the appellant's objection was indeed the infringements of the code of conduct, then these would conceivably have been dealt with in terms of section 78 of the Act. But the objection is not a complaint about the infringements but rather it is the basis for the objection.
The Response by the Commission (First Respondent)
In considering any objection in terms of Section 65, the first respondent has certain options it may adopt in order to place itself in a position to decide the objection. These options are included in section 65(3) and reads as follows.-
"In considering and deciding the objection, the commission may -(a),    investigate the factual basis of the objection;
(b),    afford interested parties an opportunity to make written or verbal submissions;
(c),    call for written or verbal submissions from other persons or parties;
(d) upon the objecting party to submit further information or arguments in writing or verbally; and
(e) a hearing on the objections,"
It seems that the first respondent did its own investigation as it was entitled to do in terms of Section 65(3) and, inter alia, for further information from the appellants and invited submissions from the other parties including the fourth respondent.
Only the second appellant responded by providing further information as requested.
The first respondent contends that it responded to the second appellant's objection in terms of Section 65 negatively and therefore there is no outstanding decision.
No direct evidence or submission by the first respondent has been placed before this court to indicate that its response to the second appellant was indeed in the negative save its vague suggestion that Section 65 objection procedures may not prove to be an appropriate vehicle for the pursuit of the relief sought.
If it is intended by the first respondent to rely on the response as a communication to the second appellant that its objection had been rejected, then it was not clearly stated that this was the case. It must be pointed out that in that very response, the first respondent clearly indicates that it intended to proceed with the investigation of the incidents complained of and after completion thereof 'we shall consider other legislative measures to deal with the matter'.
Again dealing with it in terms of Section 65 is not excluded, given that the investigation could only have been contextually proceeded with in terms of Section 65(3) of the Act. This is fortified by first respondent's request for further information from the second appellant.
Section 65(4) reads as follows: "The Commission must-
(a)    consider the objection and decide it within three days after it was served on the commission, and either
(i) the objection;
(ii) the declared result of the election; or
(iii) the declared result of the election; and
(b)    immediately notify the objector and any other parties involved in the objection, of the decision."
The fourth respondent also made submissions to this Court. These submissions deal mostly with the formalities, which it contended, were not complied with by the applicants, viz. strict time limits. It is argued on behalf of the fourth respondent that this appeal is too far out of time and no provision is made for the condonation of presenting a late appeal in this regard.
Secondly the fourth respondent contends that the appellants acquiesced to the first respondent investigating the matter and 'deal with the matter under other legislative provisions and not under section 65' (my underlining). That being the case, it was argued, the rights to an appeal had been waived.
The fourth respondent concedes in its submissions to this Court that the first respondent's 'decision could have been expressed with greater clarity' and that it obviously can be argued that the commission erred in its approach and the decision was not one that gave effect to the legislation.' Fourth respondent nonetheless supported the actions of the first respondent in regard to the objection.
Chapter 7 of the Act
It is necessary to deal briefly with Chapter 7 of the act in so far as it may be construed from the response of the first Respondent that the prescribed procedure therein ought to have been followed by the appellants.
Part 1 of Chapter 7 of the act sets out the essence of the code of conduct by which all who are affected by it must operate in relation to elections. Part 2 (sections 77 and 78) provides for procedures which follow upon complaints about infringements of the code of conduct.
Section 77(1) reads as follows:
"Subject to this Act and any other law, the chief electoral officer, acting on behalf of the Commission, may institute civil proceedings before a court, including the Electoral Court, to enforce a provision of this Act or the Code".
Section 78(1) grants this court the jurisdiction to deal with electoral disputes and complaints about infringement of the code.
Section 78(2) provides that any court having jurisdiction by virtue of section 20(4)(b) of the Electoral Commission Act may, in the interest of a free and fair election impose any appropriate penalty or sanction on that person or party,
including....... The section then lists a number of options but it is clearly not
an exhaustive list of sanctions.
The second respondent had not, up till the stage of the filing of this appeal, acted in terms of section 77. This would have invoked section 78. Such failure in my view also constitutes a rejection of the objection or complaint and puts the appellants in exactly the same position.
In the light thereof, the position in this specific matter as adopted hereunder, is not affected by the procedure set out in part 2 of chapter 7 and in my view the outcome will in any event be the same.
Time limits
One of the main issues in determining this matter is the time limits which have bedevilled the process embarked upon by the appellants.    The first respondent, though to a much lesser extent, also relies on the contention that the appeal is out of time. Its submission in this regard reads as follows: "18.   The Commission finds itself at a disadvantage in that it has not been informed about whether the second appellant will be appealing against a decision and if so, what decision. Or whether the second appellant will be appealing against the commission's failure to make a decision
and if so, that decision it failed to make and by when it should have made that decision. If the second appellant alleges that they did lodge an objection in terms of Section 65 of the Act, then the commission would have been obliged by Section 54(4) of the Act to decide the objection within three days after it was served i.e. by not later than 11 March 2009. Then the second appellant would have been obliged by Section 65(5) of the Act to lodge the appeal within the three days thereafter, i.e. by not later than 16 March 2009." (sic)
The submission is somewhat perplexing. If the commission was or is unaware of whether the appellant raised their objection by way of Section 65, then its response thereto in which it deals with the appropriateness of Section 65 makes the matter even more confusing. It perhaps demonstrates the position in which the second appellant now finds itself.
In its response, the commission clearly called for further information. In the spirit of having launched the objection in terms of Section 65 of the Act, it is not too difficult to understand the request for further information and undertaking to investigation allegations as being in terms of Section 65(3) of the Act. In any event it would have been a reasonable conclusion for the second appellant to have drawn in the circumstances and to have acted thereon.
At the best of times, such investigation cannot be completed within the narrow time limit of three days. (See the unreported judgment of Inkatha Freedom Party v the Independent Electoral Commission Case No 3/2001 ECSA handed down on 3 October 2001). Strictly speaking the Commission ought to have made a decision as provided for in Section 65(4). However there was ongoing communication between the commission, its legal representatives and legal representatives ofthe appellants.
By the 5thMay 2009, after a few similar letters, the legal representatives for the appellants still sought a decision to the objection in terms of Section 65(4).
There was no response to it and the appellants then launched this appeal on basis that the failure to act in accordance with the law by the commission constituted a rejection of the objection. The long delay and the failure to make a decision and to communicate the result in clear terms to the appellants frustrated, at best for the first respondent, the processes open to the appellants and must be regarded as having been rejected. Indeed the explanation now given by the first respondent amounts to having rejected the objection. It is noteworthy that neither the first respondent nor the fourth respondent took issue with this contention. Support for this approach is to be found in Pharmaceutical Society of South Africa v Tshabalala Msimang 2005 (3) SA 238 SCA at para's 30,31 and 38.
It ought to have been clear to the commission as at 5 May 2009 that the appellants still awaited a decision from it. If the commission did in fact make a decision by the 10 March 2009, as it submits it did, then it should have at least clarified the matter with the appellants in response to the letter of the 5 May 2009. It is difficult to understand the commission's present attitude in the circumstances.
In my view the ongoing communication and the failure by the commission to clarify the position clearly enhances the idea that the decision was still pending. It is therefore understandable that the appellants launched the appeal only when it got no joy from the commission to a request on 5 May 2009 for a decision.
If the response can at all be construed as a proper rejection of the objection, its cryptic nature lured the appellants (albeit perhaps unintentionally) into thinking the decision was outstanding pending investigation. Its content certainly does not suggest in clear terms finality as far as the objection is concerned. Indeed the ongoing communication on the matter fortifies this.
It is clear that it is this conduct of the matter which lead to the alleged late filing of the appeal.
In the present circumstances, there is still no clear response to the objection and the failure to do so has been assumed by the appellant through the operation of law. It consequently becomes difficult to compute the time limits in which the appeal had to be filed. It is a situation that has been brought on essentially by the first respondent and one for which the appellant should hardly be penalised.
Quite apart from this, a failure to observe the limits cannot be fatal. Time limits provided for in the legislation will in many instances be unrealistic as occurred in this matter when the first respondent, as it was entitled to do, sought to investigate the allegations. In such circumstances, objectors might be prevented from exercising their legal rights and the legislature could not have intended this situation, especially in matters such as these, where enfranchisement would always be sought to be promoted. This is particularly so where the appellants cannot be said to have been dilatory.
For these reasons, the contentions of both first and fourth respondents in calling for the appellant's appeal to be dismissed for failure to observe proper time spans, cannot be sustained. See: Makhaya v University of Zululand 6218/08 [2009] ZASCA 69 at para 22; Weenen TLC vs Van Dyk 2002 (4) SA 653 (SCA); ACDP v The Electoral Commission 2006(3) SA (CC) and R v Dhlumayo 1948(2) SA 677(A) at 705(1).
Furthermore the assertion that the appellants waived their right to a decision (and therefore the appeal) by accepting the actions of the commission (in cooperating with it) also cannot hold water. Political parties are expected and indeed should co-operate with bodies such as the first respondent in order to enhance the smooth operation of elections and indeed the computation of results. They ought to allow such bodies to complete their work in a structured manner despite the prospects of being put under time pressure. In doing precisely that, the appellants cannot be held to have waived of their rights.
Merits
I turn now to the merits of the appeal.
Significantly, fourth respondent does not deal with the allegations of assault and other crimes. Neither does the first respondent.
The appellants have provided sworn evidence that a number of prospective voters did not exercise their right to vote essentially out of fear of being assaulted or intimidated. Indeed the majority of them were intimidated by what they saw near the respective polling stations and by what they had heard. There are more than thirty five deponents who declared that they would have voted for the second appellant in that particular election. Such allegations of assaults, intimidation, threats and declared intentions are undisputed.
The declared result of the election in the ward in question was that the fourth respondent had obtained twenty-five votes more that the second appellant.
In considering the merits, it is clear that, but for reasons that the voters in question were prevented from voting, the declared results would conceivably have been materially different.
The commission should not have rejected the objection but should have rescinded the declared results in terms of Section 65(4).
The appeal therefore falls to succeed.
Costs
The question of costs has already been settled by this Court and as a rule it does not make costs orders. I therefore do not propose to make an order in that regard.
In the result,
The appeal succeeds and the first respondent's decision to reject the objection is set aside and substituted with the following: The declared result of the by-election held on 4 March 2009 for Ward Three in the Imbabazane Municipality is hereby rescinded.'

JUDGE PILLAY J.
JUDGE OF THE HIGH COURT

S.Abro and S. Moodaley concurred.
S.Abro and S. Moodaley concurred.