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THE ELECTORAL COURT OF SOUTH AFRICA

REPUBLIC OF SOUTH AFRICA

Case No: 04/2009

THE CHIEF ELECTORAL OFFICER........................................................... Appellant

and

THE ELECTORAL COMMISSION.....................................................First Respondent

PARTIES AS PER ANNEXURE 'A' ............................Second to Further Respondents

Neutral citation: The Chief Electoral Officer v The Electoral Commission (04/2009) (4 April 2009)

Coram: Mthiyane JA (Concurring Masipa J and S Abro (member))

Heard: 01 April 2009

Delivered: 30 April 2009

Summary: Nominated candidates not qualified to stand for election on various grounds - their nomination in breach of the Constitution and the Electoral Act 73 of 1998 — Chief Electoral Officer's objection to the nomination in terms of s 30(1)(a) rejected by the Electoral Commission - On appeal objection found to be well founded — appeal upheld and decision of the Commission set aside - reasons for the Electoral Court's decision to follow.

REASONS FOR JUDGMENT

[1] On 4 April 2009 this Court (Mthiyane JA with Masipa J and Ms S Abro (member) concurring) made an order allowing an appeal by the first respondent, the Electoral Commission dismissing her objection to the nomination of certain candidates for election on 22 April 2009. We indicated then that reasons for the granting of the order and other relief would be given later. Here follows those reasons.

[2] The success of the appeal renders it unnecessary to give reasons where the granting of leave to appeal is concerned. In any event it is not the practice of this Court to give reasons in such applications: they are dealt with as petitions for leave to appeal in the Supreme Court of Appeal. Accordingly these reasons are confined solely to the merits of appeal.

[3] The Chief Electoral Officer's case was that the candidates concerned were not qualified to stand for election on 22 April 2009. She relied on the following grounds, namely that:

(a) their names did not appear on the voters roll;

(b) they did not appear on the voters roll as according to the National Population Register, their identity numbers were invalid;

(c) they were not on the voters roll because they were not, according to the National Population Register, South African Citizens; and (d) they were not on the voters roll as according to the National Population Register, they were deceased.

[3] The above objections were dismissed by the Electoral Commission without giving reasons. The Commission ruled as follows: 'On 22 March 2009 the Electoral Commision decided-

(1) to dismiss all the objections in terms of section 30 (1) (a) of the Electoral Act, 1998 on the grounds that the candidates are "not qualified to stand... because he/she is not on the certified copy of the Voters Roll for elections taking place on 22 April 2009. "'

[4] The political parties of which the affected candidates are members were advised of the Chief Electoral Officer's objections, the grounds therefore and the further steps taken by her in this regard. Most of them either supported the Chief Electoral Officer or elected to abide the decision of this Court. On the papers only the African National Congress took issue with the Chief Electoral Officer. That party disputed that their nominated candidate, Mr Peter Holmes Maluleka, was not qualified to stand for nomination. They maintained that Maluleka's name was on the voters roll and that he was the holder of a valid identity document.

[5] According to s 19 of the Constitution only South African citizens may participate in the election. In each of the three sub-sections reference is made to a 'citizen'. Sub-section (3) introduces the element of adulthood. It reads as follows: '(3) Every adult citizen has the right:

(a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and

(b) to stand for public office and, if elected, to hold office.'

[6] The qualification for nomination is further amplified in s 8 of the Electoral Act 73 of 1998 which provides that only a South African of 18 years of age may vote. In addition the name of the citizen concerned or

the candidate, as the case may be must have a valid identity document and his or her name must appear 'in the certified segment of voters' roll'. That is spelled out in s 38 (2) of the Electoral Act. The section reads as follows:

'(2) A voter is entitled to vote at a voting station -

(a) on production of that voter's identity document to the presiding officer or a voting officer at the voting station;

and

(b) if that voter's name is in the certified segment of the voter's roll for the

voting district concerned.' (Emphasis added.)

[7] It follows that the decision of the Electoral Commission to the effect that candidates whose names did not appear in the certified copy of the voters roll were qualified to stand for nomination, flew in the face of the provisions of s 38(2) of the Electoral Act and is therefore clearly wrong.

[8] In her founding papers the Chief Electoral Officer listed the candidates and the respects in which their candidature was flawed and caused this to be communicated to the parties concerned. The affected candidates are fully set out in paragraph 7.1 of the submissions filed on the Chief Electoral Officer's behalf. I do not propose to burden this record by regurgitating the list of names. In any event they are well known to the political parties concerned.

[9] Apart from Maluleka of the African National Congress none of the candidates have as much as attempted to respond to the allegations of the Chief Electoral Officer. Accordingly her averments and her case based thereon stand unchallenged. This then brings me to the case of Maluleka who was also disqualified on the basis of the alleged invalidity of his identification document and all the problems associated with it.

[10] Maluleka registered as a voter under identification document number 5403055717087 which was issued to him by the Home Affairs Department on 3 August 2000. On 15 August 2006 he was issued with a new identity document bearing registration number 5403255272081. The reason for this was that his first name and date of birth were incorrectly recorded in the first document. Upon his nomination by the African National Congress he used his new identity document to accept nomination in terms of s 27(2)(c) of the Electoral Act. This created a problem because the identity number on acceptance of nomination did not tally with the identity number appearing on the voters' roll. This led to his nomination being objected to by the Chief Electoral Officer in terms of s 30(1)(a) of the Electoral Act.

[11] In my view the Chief Electoral Officer cannot be faulted in the stance that she adopted. Sometime before the election, in November 2008 and March 2009, the Electoral Commission invited all the voters to register (those that had not registered) and (those that were registered) to check if their registration was in order. It is at this stage that Maluleka should have sorted out this problem and regularised his registration. He failed to avail himself of the opportunity. It is now not clear whether his old identity document (5403055717087) which is reflected on the voters roll is still valid or whether it was replaced by the new one (5403255272081). The fact that he accepted nomination under the new identity document suggests that even he himself regards the new identity document as being the valid and operative one and not the old one. Clearly he cannot hold and utilise two identity documents. Surely only one of them can be valid and indications are that the latest document

(5403255272081) is one that should take priority. In that event Maluleka has insurmountable problems in that his name does not appear on the voters roll under the new identity document.

[12] In my view and in the light of the foregoing the Chief Electoral Officer was justified in taking the view that Maluleka was not qualified to stand for election and to raise the objection that she did. Such is the case also in respect of the other affected candidates. Her objections were legally sound and should have been upheld by the Electoral Commission.

[13] It is for these reasons that we made the order upholding her appeal.

K K MTHIYANE

JUDGE OF APPEAL

CONCUR: MASIPA J

ABRO S Ms (Member)

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