REPUBLIC OF SOUTH AFRICA

IN THE ELECTORAL COURT
HELD AT BLOEMFONTEIN

CASE NO:  005/13
DATE: 3 April 2014

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

         ……………………..		………………………...
                   DATE			        SIGNATURE

In the matter between:

INKATHA FREEDOM PARTY, NONGOMA                                First Applicant

NKOSINATHI MZUKHONA NZIMANDE                                Second Applicant

and

THE ELECTORAL COMMISSION			          First Respondent

NATIONAL FREEDOM PARTY, NONGOMA		     Second Respondent

NOMBUYANA SAMUEL NCUBE				         Third Respondent

AFRICAN NATIONAL CONGRESS, NONGOMA               Fourth Respondent

NHLANHLA MICHAEL MTHEMBU                                        Fifth Respondent

______________________________________________________________ 

J U D G M E N T
______________________________________________________________

SUMMARY:

Election law – Powers, duties and functions of Electoral Commission– Presiding officer failing to open and count box of special votes cast in terms of s 55 of the Local Government : Municipal Electoral Act 27 of 2000 (Municipal Electoral Act) in municipal by-election – objection launched by aggrieved political party in terms of s 65 of the Municipal Electoral Act – Electoral Commission upholding objection but referring objection to the Electoral Court in terms of s 65(7)(b) of the Municipal Electoral Act - Powers of Electoral Court – Integrity of the electoral process depending on free and fair elections.
 
MOSHIDI, J (MTHIYANE DP AND WEPENER J CONCURRING):

INTRODUCTION

[1] 	This application concerns the failure  by the Electoral Commission (“the first respondent”), to take into account certain special votes cast in terms of the provisions of s 55 of The Local Government:  Municipal Electoral Act 27 of 2000 (“the Municipal Electoral Act”) in respect of municipal by-elections held on 23 October 2013. The by-elections were held in Ward 11, Nongoma, KwaZulu-Natal (“the by-election”).

[2] 	By way of introduction, and for present purposes, the events leading to the present proceedings may be stated briefly as follows:  Based on the above failure by the presiding officer, the applicants on 25 October 2013 lodged an objection with the first respondent in terms of s 65 of the Municipal Electoral Act. The basis of the objection was a failure to comply with statutory provisions contained in ss 63, 64 and 65(1) of the Municipal Electoral Act. In particular, it was contended that the presiding officer and/or counting officer failed to have regard to, and failed to include the special votes which had been cast prior to declaring the results of the by-election.

	2.1 	In November 2013, the first respondent informed the appellants that it had investigated the objection and resolved to uphold same, as dealt with more fully later below.  The first respondent also held the view as contained in its written submissions that the nature of the irregularities revealed by the investigation may justify the setting aside of the entire by-election. Based on this view, the first respondent informed the applicants that it had decided to refer the objection to this Court for its decision.  The referral was made in terms of s 65(7)(b) of the Municipal Electoral Act.

	2.2 	The applicants, aggrieved by the decision of the first respondent to refer the matter to this Court, launched urgent proceedings in this Court on 29 November 2013.  In the urgent proceedings the applicants sought certain relief as set out in paragraph [3] of this judgment.  

	2.3 	In opposing the urgent proceedings and the referral of the objection to this Court, the first respondent cited itself as the “applicant” and the present applicants as the “respondents”.  The first respondent simultaneously launched a conditional counter-application and an application for consolidation of the applications in terms of Rule 11 of the Rules of Court.  The present applicants opposed these applications.  It is   convenient to refer to the parties in the present matter as hereinbefore.  

[3] 	For the sake of proper context, it is convenient to set out in full the relief sought by the applicants as set out in paragraph 13 of the notice of motion. It reads as follows:

	“13.1 	That the applicants are granted leave to appeal in terms of section 20 of the Electoral Commission Act 51 of 1996 against a decision of the first respondent on 25 November 2013 (and communicated to the applicants’ attorneys on 26 November 2013) in terms of which the first respondent referred the objection by the applicants in respect of the municipal by-elections held on 23 October 2013 in Ward 11 Nongoma (‘the by-election’) to the Electoral Court for its decision;

13.2	The Electoral Commission is ordered to include the box of twenty special ballots (serial numbers 0051450 and 0051449 at the Nzobo Voting Station in Ward 11, Nongoma) in the counting of votes in the by-election;

13.3	The Electoral Commission is ordered to amend the results of the by-election in terms of section 65(7)(a) of the Local Government; Municipal Electoral Act 27 of 2000 to the following:

13.3.1	Nkosinathi Mzukhona Nzimande (IFP) – 895 votes;

13.3.2	Nombuyana Samuel Ncube (NFP) – 893 votes;

13.3.3	Nhlanhla Michael Mthembu (ANC) – 711 votes;

13.3.4	The Electoral Commission is ordered to declare that the second applicant is the winner of the by-election;

13.3.5	The Electoral Commission, together with those other respondents (if any) who oppose this application, be ordered to pay the applicants’ costs in this application jointly and severally, the one paying the other(s) to be absolved.”

COMMON CAUSE FACTS

[4] 	 The Inkatha Freedom Party (“IFP”), and “first applicant” and the National Freedom Party (“NFP”)  hereinafter (“the second respondent”) as well as the African National Congress (“the ANC”), hereinafter (“the fourth respondent”), are all registered political parties in terms of Chapter 4 of the Electoral Commission Act 51 of 1996 (“the Commission Act”).  All these political parties have an interest in the by-election as they had nominated candidates for election thereat. The second applicant is Mr Nkosinathi Mzukhona Nzimande who stood as the first applicant’s candidate in the by-election (“the second applicant”).  The first respondent is the Electoral Commission, a body established by s 181(1)(f) of the Constitution and s 3(1) of the Commission Act .  In terms of the Constitution, the first respondent shall be independent, subject only to the Constitution and the law, and shall be impartial and exercise its powers and perform its functions without fear, favour or prejudice.  The duties, functions, objects and powers of the first respondent are all set out in ss 4 and 5 of the Commission Act.  Mr Nombuyana Samuel Ncube (“the third respondent”) stood as the second respondent’s candidate in the by-election.  Finally, Mr Nhlanhla Michael Mthembu (“the fifth respondent”) stood as the fourth respondent’s candidate in the by-election.

[5] 	In regard to special votes, s 55 of the Municipal Electoral Act provides:

“Any voter who is unable, on voting day, to cast his or her vote at the voting station in the voting district where he or she is registered, may in the prescribed manner apply and be allowed, prior to voting day, to cast a special vote within that voting district.”

[6] 	In this matter, it is not in dispute that special votes were cast in Ward 11, Nongoma a day before the by-election i.e. 22 October 2013.  The latter date was set aside for the casting of such special votes.  There was nothing untoward in the process of casting these votes.  The votes were cast in the presence of the delegated presiding officer together with the representatives of the interested political parties mentioned above.  The votes were properly secured and preserved and placed in a box with serial numbers 0051450 and 0051449.  In addition, the manner in which the special votes were cast, significantly made it possible for the interested parties to know in advance which party or candidate received the vote. However, and regrettably, after the normal voting took place the following day, i.e. 23 October 2013, in the process of counting all the votes, the counting officer omitted to open and count the special votes in the ballot box.  When questioned by the representative of the first applicant (IFP), the presiding officer allegedly responded that:	
	“I forgot to stamp the ballot papers”,

and said that he intended  disregarding  the special votes in their entirety, and would not  even scrutinise them at all.

[7] 	The version of the first respondent (EC) in this regard and in opposing the instant application, is set out fully in its founding affidavit in the conditional counter-application and answering affidavit in an urgent application brought by the applicants.  In that answering affidavit, the first respondent, whilst referring the dispute to this Court in terms of s 65(7)(b) of the Municipal Electoral Act, as dealt with below, essentially made several concessionary allegations. These included that the presiding officer realised on 23 October 2013 that he had omitted to stamp the back of the ballot papers that were given to the special voters; that s 61 of the Municipal Electoral Act directs that a ballot paper, ‘that does not bear the official mark’, i.e. stamp, on the back of the ballot paper must be rejected;  that on 23 October 2013, before the opening and counting the ballots cast on 22 October 2013 and 23 October 2013, the presiding officer advised the party agents and officials present of the error made in relation to the special votes that had been cast the previous day;  and that the ballot box with the special votes had remained sealed as a decision had to be taken later on how to treat those ballots;  that the consensus arrived at by those present was that the provisions of s 61(1)(c) of the Municipal Electoral Act should apply to the special votes and that they should not be counted (see paras 31-33 of the first respondent’s conditional counter-application and condonation application). 
[8] 	As to the reasons for the error, the first respondent maintained that it was a bona fide mistake on the part of the presiding officer and his team in not opening and counting the box containing the special votes.  This mistake is attributable to the possible “tense environment” within which the special votes were cast.  I deal later below with this contention.  The upshot is that the special votes were not counted.

[9] 	It is further not in dispute that the declared results of the by-election, excluding the box of the special votes, were as follows:

9.1 	The NFP (the third respondent) – 889 votes;

	9.2 	The IFP (the first applicant), represented by the second applicant – 880 votes;

	9.3 	The ANC (the fourth respondent) represented, by the fifth respondent – 710 votes.

On this basis, the NFP was declared the winner of Ward 11, Nongoma, by 9 votes.  It is also not in dispute that the error or omission in not taking into account the special votes revealed that:

(a)	The IFP received 15 of the 20 special votes;

(b)	The NFP received 4 of the special votes; and
(c)	The ANC received 1 of the special votes.

For these reasons, the applicants contend that, had the special votes been taken into account, the IFP emerged as the winner of the by-election with 895 votes to the 893 votes of the declared winner, the NFP.  It is further contended by the applicants that, as a consequence of the error, the voters who legitimately cast their special votes have not had their votes counted, and that the political party which received the most number of votes in the by-election has not been declared the rightful winner. 

[10] 	The applicants, aggrieved by the declared results, duly lodged an objection with the first respondent in terms of the provisions of s 65 of the Municipal Electoral Act, which provides as follows:

	“(1) 	An interested party may lodge with the Commission an objection material to the result of an election, concerning –

(a)	any aspect of the voting or counting proceedings provided for in Chapter 5 or Chapter 6, respectively; or

(b)	alleged unlawful –

(i)	interference with or obstruction of election activities or processes in the vicinity of, at or in a voting station; or 

(ii)	interference with or influencing, intimidation or obstruction of voters or prospective voters in the vicinity of, at or in a voting station.

	(2) 	An objection must be lodged by serving by no later than 17:00 on the second day after the voting day, at the Commission’s national office at the prescribed address, a written notice containing -

(a)	a reference to the election concerned and the relevant section of the Act in terms of which the objection is brought;

(b)	the full name and physical address of the objecting party;

(c)	the postal address and telephone number where the objecting party can be contacted and, if available, the party’s facsimile number and e-mail address; 

(d)	the interest of the objecting party in the matter;

(e)	details of the objection and the aspect of the election concerned;

(f)	detailed reasons for the objection;

(g)	the relief sought;

(h)	a list of supporting documents accompanying the notice of objection; and

(i)	proof of service of copies of the notice and annexures on all other interested parties.

	(3) 	The Commission may, on good cause shown, condone a late objection.

	(4) 	In considering and deciding the objection referred to in this section, the Commission may take one or more, or all, of the following actions:

	            (a) 	Investigate the factual basis of the objection or cause it to be investigated;

                      (b) 	afford other interested parties an opportunity to make written or verbal submissions;
(c)	call for written or verbal submissions from other persons or parties; 

(d)	call upon the objecting party to submit further information or arguments in writing or verbally; or

(e)	conduct a hearing on the objection.

	(5) 	The Commission must consider the objection and either reject it or uphold it.

	(6) 	If the Commission decides to uphold the objection before the result of the election had been determined, the Commission may -
(a)	decide that the votes cast at a particular voting station do not count in whole or in part;

(b)	decide that the votes cast at a particular voting station in favour of a party or candidate must be deducted in whole or in part from the votes cast in favour of that party or candidate in the election; or

(c)	reduce the number of votes cast in favour of a party or a candidate.

	(7) 	It the Commission decides to uphold the objection after the result of the election had been declared, the Commission may -

(a)	amend the results; or

(b)	if it is of the opinion that the seriousness and extent of unlawful conduct or irregularities that occurred may justify the setting aside of the election, refer the objection to the Electoral Court for its decision.

	(8) 	The Commission must immediately notify the objecting party and any other interested parties involved in the objection of its decision in terms of subsection (5).

	(9) 	An objecting party or other party involved in the objection who feels aggrieved by the decision of the Commission may, within seven days of the Commission’s decision, lodge and appeal to the Electoral Court in terms of section 20 of the Electoral Commission Act and the Rules of the Electoral Court.

(10)	The Electoral Court must –

(a)	consider an appeal contemplated in subsection (9) and either –

(i) 	reject the appeal;

			(ii) 	amend the decision of the Commission; 

(iii)	set aside the election; or

(iv)	make an appropriate order; and

		(b) 	notify the parties to the appeal of its decision.

	(11) 	The Electoral Court -

(a)	may, after having considered an objection referred to it by the Commission, in terms of subsection (7)(b), either –

(i)	reject the objection;

(ii)	amend the result of the election;

(iii)	set aside the election; or

(iv)	make an appropriate order; and

(b)	must notify the objecting party of its decision.

	(12) 	The declared result of an election is not suspended by an appeal in terms of subsection (9) or a referral to the Electoral Court in terms of subsection (7)(b).”  (Underlining added)

THE APPLICANTS’ OBJECTION

[11] 	The first respondent, as it was entitled to do, and in terms of the provisions of s 65(4) of the Municipal Electoral Act, duly investigated the objection.  The investigation confirmed substantially the allegations of the applicants.  As a result, the first respondent was compelled to uphold the objection. This is mirrored in a letter dispatched by the first respondent to the applicant’s legal representatives on 26 November 2013.  The letter read as follows:

“The Commission has considered the objection that you have lodged on behalf of your client, the Inkatha Freedom Party in respect of the results of the by-election that was held in Ward 11, Nongoma, on the 23rd October 2013.  The Commission has conducted an investigation into the factual basis of the objection and the investigation objection revealed that:

•	The twenty (20) unstamped ballots, had they been counted, would have changed the results of the by-election.

•	The names of the twenty (20) voters who casts a special vote in the voting district 43500585 were not crossed off the segment of the voters’ roll for the voting district used for the by-election in question.

•	The number of voters whose names were crossed off the segment of the voters’ roll for voting district 43500585 used for the by-election in question as having cast their votes at the Nzobo Primary School voting station did not reconcile with the number of marked ballots in the Commission’s possession emanating from that voting station.  In the light of the report of the investigation, the Commission has decided to uphold the objection.  The Commission is of the opinion that the abovementioned irregularities may justify the setting aside of the by-election and has consequently decided to refer the objection to the Electoral Court for its decision.”

[12] 	It is indeed the latter decision of the first respondent in referring the findings of its investigation to this Court that prompted the applicants to place the matter before us on appeal.  In addition to the reasons for referring the matter to this Court as contained in the above letter, the first respondent advanced other considerations. These are:

“The serious nature and extent of the unlawful conduct or irregularities that were objected to”;

that s 19 of the Constitution guarantees the right of every citizen to free, fair and regular elections for any legislative body established in terms of the Constitution; that the first respondent considered the implications of the mandate conferred in s 65(7)(a) and (b) of the Municipal Electoral Act;  and that the right to vote in Municipal elections is a constitutional imperative which the first respondent is enjoined to uphold.

[13] 	 The applicants contend otherwise.  Having upheld the objection, so, the first respondent simply had to amend the results of the by-election, submitted the applicants, by including the special votes, and declaring the second applicant (Mr N M Nzimande), the winner of the by-election, based on the common cause facts.  The applicants contend therefore that the referral of this matter to this Court was inappropriate in the circumstances.

THE MAIN ISSUE FOR DETERMINATION

[14] 	From the above, it appears that the main issue for determination in this application, is the question whether the first respondent correctly and properly referred the matter to this Court or whether it ought to have simply amended the results of the by-election, as contended by the applicants.

[15] 	Section 65(7) of the Municipal Electoral Act, quoted above, makes it clear that if the first respondent decides to uphold the objection (as is the case here) after the results of the election had been announced, it may amend such results.  Alternatively, if the first respondent holds the view that the seriousness and extent of the unlawful conduct or irregularities that occurred during elections may justify the setting aside of the election, refer the objection to this Court for its decision (underlining added).  The plain and unequivocal meaning of s 65(7) is that in both instances, the first respondent is vested with discretionary powers.  It is trite that these powers must be exercised according to the rules of reason and justice, and not according to private opinion. The exercise of the powers must also not be arbitrary, ambiguous and unrealistic, but rather legal and regular (underlining added).  See Cassar and Cassar v Bellville Municipality and Another 1958 (3) SA 318 (C) at 325. 
[16] 	As to how the courts exercise discretion was outlined in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC), at para [11]:

“This Court has a discretion to decide issues on appeal even if they no longer present existing or live controversies.  That discretion must be exercised according to what the interests of justice require.  A prerequisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others.  Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity and the fullness or otherwise of the argument advanced …”

The powers of the first respondent are derived from the provisions of s 5 of the Commission Act as set out above, as well as the Constitution.  Section 190 of the Constitution provides that:

	“(1) 	The Electoral Commission must –

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

(b)	ensure that those elections are free and fair; and

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

	(2) 	The Electoral Commission has the additional powers and functions prescribed by national legislation.”

[17] 	There is no doubt that the decision of the first respondent in declining the request of the appellants to simply amend the results of the by-election, and referring the matter to this Court, was an administrative action.  Such action is described in s 1 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), as any decision taken, or any failure to take a decision by an organ of State when exercising a power based on the Constitution or a provincial constitution or exercising a public power or performing a public function in terms of any legislation.  The decision affects the interests of several parties and individuals who took part in the by-election. It also affects precariously the status of Nongoma Local Municipality.

[18] 	In Independent Electoral Commission v Langeberg Municipality (supra), at para [22], the Court said:

“The Commission exercises public powers and performs public functions in terms of the Constitution and it is therefore an organ of State as defined in s 239 of the Constitution.  The question then is whether it is part of government in that, as an organ of State, it falls within a sphere of government contemplated by chap 3 of the Constitution.  It was created by chap 9 of the Constitution which is headed ‘State institutions supporting constitutional democracy’.  Section 181(1) provides that it is to strengthen constitutional democracy in the Republic.”

See also Lötter v The Independent Electoral Commission (unreported case 001/13 IEC [2013] ZAEC 3 (6 December 2013) at para [8]).  (Cf Johnson v Electoral Commission 2014 (1) SA 71 (EC).)

PROCEDURE DURING SPECIAL VOTES

[19] 	As mentioned earlier in the judgment, the procedure in casting the special votes was in all respects untainted by any allegation of fraudulent conduct on the part of any of the parties.  The voting procedure was conducted substantially in accordance with the applicable provisions of the Municipal Electoral Act.  See Gerdener v Returning Officer and Another 1975 (3) SA 381 (N), also reported on appeal at 1976 (2) SA 663 (NPD).  The undisputed facts show that the names of the special voters were crossed off the List of Special Vote applicants by the presiding officer by the time of the visits to the individual special voters.  The ballot box of the special votes was properly sealed and intact.   The serial numbers were correct. The results which were witnessed and confirmed by the party agents present were correct as anticipated and as set out above. The first respondent concedes that the inclusion of the twenty (20) unstamped special vote ballots would have altered markedly the whole result of the by-election.

[20] 	As matters stand, the final declared result of the by-election showed that the candidate of the NFP (third respondent), i.e. Mr N S Ncube, was the overall winner of the by-election by a margin of nine votes. He was declared to have received 889 votes to the IFP candidates (Mr N M Nzimande) 880 votes.  In both instances the special votes were not taken into account for the reasons advanced by the first respondent. However, if the special votes are taken into account the IFP ought to receive additional 15 votes from the 20 special votes cast, and the NFP additional four votes and the ANC one vote.

[21] 	The above picture including the special votes cast, emerges as follows:

(a)	Total votes allocated to IFP	= 880
Add 15 special votes 		=   15
			Total		= 895

	(b) 	Total votes allocated to NFD	= 889
		Add 4 special votes			=     4
					Total		= 893

	(c)	Total votes awarded to ANC 	= 710
		Add 1 special vote			= __1
					Total		= 711

On this basis, the IFP candidate, Mr Nzimande, would have received 895 votes and won the by-election by three votes from the NFP’s candidate, Mr Ncube.  This would be so even if the discarded votes of the illiterate voters were to be added to the NFP.  The addition of the one vote to the tally of the ANC would not make any difference.

THE OPPOSING CONTENTIONS

[22] 	It is against the above background that the issues raised by the opposing parties have to be considered.  The first respondent, although conceding that the inclusion of the 20 unstamped ballots of the special votes would have changed the results of the by-election, contends that the materiality of the irregularities is such that it merits the intervention of this Court.  As a consequence of the error made in regard to the special votes, the first respondent contends that the names of the special voters were not crossed off the segment of the voters’ roll for the voting district, and that it was not possible to reconcile the voters’ names that were crossed off the segment of the voters’ roll for the district with those voters who cast their votes at Nzobo Primary School.  For its contentions, that the irregularities identified were serious, and that every citizen has the right to free, fair and regular elections, the first respondent relies on the provisions of s 65(7)(b) of the Municipal Electoral Act, and s 19(2) of the Constitution, respectively.  The essence of the first respondent’s submissions is that the by-election should be set aside.  In further submissions the first respondent has broadened significantly its arguments in justifying the referral decision.  It was argued in the first place that there was no urgency in the application since the applicants were aware that the first respondent (EC) had investigated the objection correctly and came to the conclusion that it was prudent in the circumstances to refer the objection to this Court. The decision of the first respondent ensured fairness to all parties in the comfort that judicial attention will be directed to the provisions of s 61(1)(e) and the bona fide mistake of the presiding or accounting officer concerned.  The latter section enjoins the counting officer to reject a ballot paper that does not bear the official mark on the back of the ballot paper.  It was not an option open to the presiding officer to ignore the provisions of the latter section based mainly on the application of the principle of legality and the rule of law. It was also contended on behalf of the first respondent that in exercising its powers under s 65(5) and (6), the first respondent gave due consideration to the seriousness and extent of the unlawful conduct and irregularities that occurred which justified the referral of the matter to this Court.

22.1	The main thrust of the first respondent’s submissions, based on, inter alia, Mketsu and Others v African National Congress and Others 2003 (2) SA 1 (SCA) and African Democratic Party v Electoral Commission 2006 (3) SA 305 (CC), came to this:  the objection was properly considered by the first respondent; in referring the objection to this Court, the first respondent sought to discharge its constitutional and statutory duty to enable the participation of those who applied for and were granted the opportunity to cast special votes in the municipal by-election on 23 October 2013;  that the first respondent correctly exercised its discretion by referring the matter to this Court in terms of s 65(7)(b) of the Municipal Electoral Act; and that the irregularities discovered during the by-election could be viewed as negating the affected voters’ right to vote for candidates of their choice.  

22.2 	The submissions advanced on behalf of the respondents however clearly ignore a significant common cause fact, as stated elsewhere in this judgment. There is neither allegation of fraud nor unlawful behaviour on the part of any party involved in the by-election. This includes the special voters.  It is common cause that the failure of the accounting officer to count the ballot box of the special votes was of a purely administrative nature.  The first respondent has the powers to rectify such administrative errors in terms of s 5 of the Commission Act supra.  As argued by the applicants, the provisions of s 61(1)(e) of the Municipal Electoral Act quoted above, ought to be frowned upon by the EC as it is a ‘disenfranchising’ provision which excludes votes from the count.  The rationale behind excluding ballots without their requisite mark on the back of the ballot paper, like the other requirements set out in s 61(1), is to prevent fraud.  The process of casting the special votes was not tainted by any shade of fraud. In these circumstances, it cannot be said that the alleged irregularities in regard to both the special votes and the failure to cross off voters’ names from the voters’ roll, are of such a serious nature and extent as envisaged in s 65(7)(b) of the Municipal Electoral Act.

The applicants on the other hand, submit that the matter does not deserve scrutiny by this Court, and that the first respondent should simply have amended the result of the by-election as envisaged in s 65(7)(a) of the Municipal Electoral Act, and declared IFP’s Mr N M Nzimande the winner.

[23] 	I have already dealt with the constitutional duties, functions and powers of the first respondent set out in s 190 of the Constitution, as well as s 5 of the Commission Act.  I have also set out limited case law on how the public powers and functions are to be performed coupled with or imbued with discretionary execution.  In my view, on the common cause facts, there was substantial compliance with the voting principles set out in Chapter 5 of the Municipal Electoral Act, in respect of the special votes, save for the admitted error on the part of the presiding officer as described above.  He clearly omitted to open and count the special votes.  This was contrary to Chapter 6 of the Municipal Electoral Act, which provides in s 57(1) that votes must be counted at the voting station at which those votes are cast, subject to certain exceptions.  Section 60 of the same Act also provides that the counting officer must open all the used sealed ballot boxes, and that the counting of votes must be conducted in accordance with the prescribed procedure.

[24] 	There are two questions which immediately arise for consideration. The first is whether the error, irregularities and non-compliance by the first respondent with the provisions of the Municipal Electoral Act, as described, are such that the first respondent could have invoked its powers in terms of s 65(7)(a) of the Municipal Electoral Act by administratively and simply amending the result of the by-election.  (Cf National Democratic Convention and Another v Electoral Commission and Others 2010 IEC 451 (EC) at para [21].)  This implies declaring the IFP as overall winner.  The second question is whether the said irregularities are of such a serious nature and extent, necessitating the setting aside of the by-election as envisaged in s 65(7)(b) of the same Act.

[25] 	In Pitso v Electoral Commission 2010 IEC 471 (EC), the appellant lodged a formal written objection in terms of s 65 of the Municipal Electoral Act alleging certain irregularities in breach of ss 72(2) and 75(b) of the Act by a political party.  In the main, the irregularities and discrepancies in the number of votes and spoilt ballot papers were alleged by the appellant to be material to the declared result of the election in the Ward concerned.  In dismissing the appeal on the basis that the objections have not been shown to have been material to the declared result of the election, the Court (per Van der Walt J), at 474D-E, held:

“In my view, objections material to the declared results of an election in terms of s 65 of the Act will in the overwhelming majority of cases be concerned with the irregularities in the voting procedure, the ballot papers, the number of votes cast and the number of spoilt ballot papers and the reasons why those ballot papers were rejected.  In other words, an irregularity which would affect the tally of votes to the extent that an unsuccessful candidate may gain in order to obtain sufficient votes to reverse the election result.”

See also Gerdener v Returning Officer and Another (supra) at 674 and 676D-E.

[26] 	Based on the above legal principles, and having regard to the overall discretionary functions and powers of the first respondent, I am of the view that the nature of the common cause oversight made by the presiding officer in not stamping the ballots used for the special votes was clearly an administrative error. The first respondent should have used its administrative powers and discretion by simply amending the result of the by-election as suggested by the appellants.  The same applies to the failure of the presiding officer to cross those special voters’ names off the voters’ roll. The fact that the first respondent could have performed such function with relative ease and practicality was made clear in Inkatha Freedom Party v Independent Electoral Commission 2010 IEC 429 (EC), at 434D-F where the Court said:

“In other words the IEC has the power and duty to investigate and conduct a hearing to decide an objection concerning any aspect of an election that is material to the declared result of the election.  The reason for burdening the IEC with this duty, I would suggest, is because the Commission is the only entity with original jurisdiction to rescind the declared result of an election. Such jurisdiction is only given to this Court on appeal to it from a decision of the IEC in terms of s 65(6)(a) of the Act.  The submission by the IEC that it does not have the jurisdiction or the power necessary to adjudicate such an objection is without merit.” (underlining added)

In the instant matter, although the first respondent makes clear that it considered the objection of the applicants, there is no indication at all that a hearing was convened in deciding the objection.  What is however, clear is that electing to amend the result of the by-election instead of referring the objection to this Court, ought to have been the most practical resolution.  The error was admitted. There was no allegation of fraud on the part of any of the interested parties.  There was also no opposition by any of the political parties to the objection of the applicants.  It would be unfair and inequitable to saddle the applicants with the consequences of an administrative error caused by the staff of the first respondent. The practical resolution of the matter as suggested, would also obviate the setting aside of the by-election and having a fresh one, as submitted by the first respondent.

[27] 	However, if I am incorrect in my interpretation of the functions and powers of the first respondent as set out above, the matter is now before this Court in terms of s 20 of the Commission Act.  It must be dealt with in accordance with the provisions of ss 10 and 11 of the Municipal Electoral Act.  These provisions enjoin the Court to either reject the appeal, and the decision of the first respondent, set aside the election or make an appropriate order.  In respect of an objection referred to it by the first respondent in terms of s 65(7)(b), the Court may either reject the objection, amend the result of the election, set aside the election or make an appropriate order as well.  In both scenarios the interested parties must be notified of the Court’s decision. 

[28] 	For the sake of completeness, s 20 of the Commission Act provides that, the Electoral Court may review any decision of the first respondent relating to an electoral matter, and may determine its own practice and procedures, and make it own rules.  The determination that the first respondent could and should have resolved the matter administratively by amending the result of the by-election in favour of the applicants, without much difficulty, has already been alluded to.  The full nature and extent of the objection have also been described. These matters, save for the practical implications of setting aside the by-election, and ordering fresh by-elections in respect of Ward 11, Nongoma, need no repetition.  Indeed, there are other relevant considerations in deciding this matter, as discussed later below.

[29] 	In ACDP v Chairperson, IEC and Another [2005] JOL 14186 (ECSA), the Court was concerned with the issue whether it has the power to correct errors or mistakes on the part of the Electoral Commission (the first respondent in the present matter). There it was alleged that an incorrect allegation or posting of votes was made, causing prejudice to another party, i.e. the African Christian Democratic Party (“ACDP”), applicant.  It is rather interesting that in that case, as is the position in the instant matter largely, the first respondent conceded the error. The only difference is that there, the first respondent convened a meeting at which representatives of the applicant and the second respondent were present, in an endeavour to resolve the matter amicably. In finally ordering the correction of seat allocations, the Court per Pillay J, (as he then was), at para [15] of the judgment said:

“I am unable to agree with the view that the Court in the light of the very wide powers it has in electoral matters, cannot, on application (as is the case here), correct declared results arising from some underlying administrative error, in appropriate circumstances. It would seem to me, by failing to do so the Court would not only be acting irresponsibly but would be abdicating its constitutional imperative to ensure free and fair elections (see section 19(2) of the Constitution of the Republic of South Africa, Act 108 of 1996).  It must follow therefore that even if there is merit in the second respondent’s argument that the Commission was functus officio in dealing with the objection, this Court is nevertheless at large, in appropriate circumstances, to deal with the matter, in terms of its review powers contained in section 20 of the Commission Act.”

Later on at para [16] of the judgment, the learned Judge went on to say:

“The Electoral Court, as I see it, is a public functionary and is duty bound to correct any mistake or error which is material to the declared results.”

I am, in respectful agreement with this finding, which is pre-eminently applicable to the facts of the present matter.  See also Mketsu and Others v ANC and Others supra regarding the jurisdiction of this Court to adjudicate objections “concerning any aspect that is material to the declared result” of an election.
ADDITIONAL POWERS OF ELECTORAL COURT AND ELECTORAL COMMISSION

[30] 	There is yet another reason why the first respondent could have amended the declared result of the by-election in favour of the applicants.  That is that s 56 of the Electoral Act 73 of 1998 provides that:

“If the Electoral Commission or the Electoral Court decides, whether as a result of an objection or an appeal brought under section 55 or otherwise, that a serious irregularity has occurred concerning any aspect  of an election, the Commission or the Electoral Court may order –

(a)	that the votes cast at a particular voting station do not count in whole or in part; or

(b) 	that the votes cast in favour of a registered party at a particular voting must be deducted in whole or in part from the votes cast in favour of that registered party in that election.”

From these provisions it is plain that if this Court is so inclined, the special votes cast in the by-election in Ward 11, Nongoma, are capable of adjustment in favour of the applicants.  

[31] 	One of the various reasons advanced by the applicants in urging us not to set aside the by-election is that fresh by-elections will cause substantial prejudice to not only the parties contesting the election, but also the citizens and voters of Ward 11, Nongoma.  It is common cause that none of the mentioned parties, including the special voters, had a hand in the conduct giving rise to what was clearly a bona fide error on the part of the first respondent’s administrative staff.  A matter of particular concern is the plight of the special voters.  This category of voters are the most vulnerable citizens, including the disabled, elderly and sickly. The first respondent will be put to great expense, financially and administratively, in not only visiting again the special voters individually, but also re-scheduling fresh by-elections.  The contesting parties will be obliged to incur further expenses in campaigning and contesting in fresh elections.  The current stalemate and uncertainty in the governance of Nongoma and citizens is plainly not in the interest of justice nor the integrity of fair and free and regular elections as prescribed in the Constitution. In this regard, the Court in EC v IFP 2011 IEC 1 (CC), at para [55] said:

“It is necessary that the integrity of the electoral process be maintained. Indeed, the acceptance of the election as been free and fair depends upon that integrity. Elections must not only be free and fair, but they must be perceived as being free and fair.  Even-handedness in dealing with all political parties and candidates is crucial to that integrity and its perception by voters.”

In the present matter, the list of grave injustice and prejudice concomitant in fresh by-elections, which include the looming national general elections in May 2014, is simply endless.  

LEAVE TO APPEAL

[32]	Before coming to the conclusion there is yet another matter I would like to touch upon. Where a party seeks leave to have a matter adjudicated by this court on appeal, it is required that it seeks leave of the Chairperson and head of this court by virtue of the provisions of s 20(2)(b) of the Electoral Commissions Act  This has not been done but neither party has taken the point. The Chairperson of this court has concurred in this judgment and by so doing has, in my view, indicated that had such leave been sought it would have been granted. I therefore do not consider that there is any bar in this matter being heard either as a review or appeal. More importantly and in the interests of finality there is no reason not to finalise this matter.

CONCLUSION

[33]	For all the aforegoing reasons, the applicants have, in my view, succeeded in showing that the setting aside of the by-election in Ward 11, Nongoma, will not be just and equitable.  The appropriate order in the circumstances of the case would be to uphold the appeal and order the first respondent to amend the result of the by-election, as contended for on behalf of the applicants.  The order directs the first respondent to  include the box of the special ballots (serial numbers 0051450 and 0051449) at the Nzobo Primary School, Ward 11, Nongoma, in the counting of the votes cast in the by-election.  The presiding officer and/or the counting officer need also to be ordered to stamp and mark the ballot paper of the special votes.

[34] 	The proposed amendment incorporating the special votes will materially alter the overall result of the by-election in a relatively clear and ascertainable manner.  It will reflect that the second applicant, Mr N M Nzimande, of the IFP emerges as the winner of the by-election.

[35] 	Having come to this conclusion, the conditional counterclaim application of the first respondent does not need to be further considered.

ORDER

[36] 	In the result the following order is made:

1.	The appeal is upheld.

2. 	The presiding officer and/or the counting officer is directed to l stamp and mark the ballot papers in respect of the special votes in accordance with the prescribed procedure.

3. 	The Electoral Commission (the first respondent) is ordered to amend the result of the by-election in Ward 11, Nongoma, held on 22 April 2013 and 23 April 2013, as contemplated by s 65(11)(ii) of the Local Government:  Municipal Electoral Act 27 of 2000, as follows:

3.1 	Nkosinathi Mzukhona Nzimande (IFP) 	-	895 votes

3.2 	Nombuyana Samuel Ncube (NFP)	-	893 votes

3.3 	Nhlanhla Michael Mthembu (ANC)	-	711 votes

	4. 	The Electoral Commission (the first respondent) is ordered to declare that Mr Nkosinathi Mzukhona Nzimande (the second applicant) is the winner of the by-election.