REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT HELD AT DURBAN

CASE NO:001/13 IEC
REPORTABLE

In the matter between:

ANDRE DAWID LÖTTER

APPLICANT

and

THE ELECTORAL COMMISSION

FIRST RESPONDENT

AFRICAN NATIONAL CONGRESS

SECOND RESPONDENT

INKATHA FREEDOM PARTY

THIRD RESPONDENT

Neutral Citation: Andre Dawid Lötter v The Electoral Commission and Others
(Case no 001/13 IEC) [2013] ZAEC 1 (7 May 2013)

Summary

Election – Law – Municipal by-elections – Section 17 of the Local Government
Municipal Electoral Act 27 of 2000 – Timetable for management of elections by
Electoral Commission – Strict adherence – Requirement to submit bank
guaranteed check by first cut-off date – applicant submitted necessary
documents within time limit but failed to supply a bank guaranteed cheque –
Supply of cash instead – Constitutional values and dictates to facilitate the

participation in elections requires section 17 to be read widely and the cash
tender should have been accepted as compliance with the requirements of     s
17 – The tender of cash was evidence of the seriousness of the intention of
contesting the election and therefore compliance with the provisions of s 17.

______________________________________________________________

J U D G M E N T
______________________________________________________________

WEPENER J: (MTHIYANE DP WITH ADV M M MTHEMBU CONCURRING)

[1] On 23 April 2013 this court made an order in the following terms:

1. The Independent Electoral Commission (first respondent) is ordered
to request, as contemplated by Section 8 of the Local Government
Municipal Electoral Act 27 of 2000, the Member of the Executive
Council to postpone the by-election to be held on 24 April 2013 in
Ward 22 of Abaqulusi Municipality, Kwazulu-Natal.

2.  The Independent Electoral Commission is ordered to investigate the
allegations of fraud raised in the application in relation to the voters’
roll of Ward 22 of Abaqulusi Municipality, Kwazulu-Natal.

3. The Independent Electoral Commission is ordered to accept the
nomination of Andre Dawid Lötter (the applicant) as a candidate in
the municipal by-election to be held in Ward 22 of Abaqulusi
Municipality, Kwazulu-Natal.

4. The Registrar of this court and the Registrar of the Kwazulu-Natal
High Court, Durban, are authorised to communicate the contents of
this order to the parties by e-mail or fax or such other method as may
be appropriate.

[2] Owing to the urgency of the matter we did not give reasons for the order
we made. We indicated then that reasons for it would be handed down in due
course. This judgment embodies those reasons.

[3] The applicant who, describes himself as a politician and free-lance
translator, resides in Ward 22 of the Abaqulusi Local Municipality (Ward 22).
He is also a registered voter in the ward and was the former counsellor for the
ward, having elected to resign from that office on 29 January 2013.

[4] The first respondent is the Independent Electoral Commission (the
Commission), a body established pursuant to the Constitution, with its objects
set out in s 4 of the Electoral Commission Act 51 of 1996 (Electoral Commission
Act) as being to ‘strengthen constitutional democracy and promote democratic
electoral processes’. The Constitution obliges the Commission to manage
elections in accordance with national legislation, in this case the Local
Government Municipal Electoral Act 27 of 2000 (the Municipal Electoral Act).
The second and third respondents are the African National Congress (ANC)
and the Inkatha Freedom Party (IFP), both respectively, registered political
parties having an interest in the by-election which were to be held on 24 April
2013 in Ward 22, in that they nominated candidates for election in the by-
election. Although there were a number of by-elections in municipal wards
throughout the country to be held on 24 April 2013, the by-election in Ward 22
is the only by-election that is the subject matter of this application.

[5] The applicant sought an order directing that the holding of the            by-
election on 24 April 2013 be postponed as contemplated in s 8 of the Municipal
Electoral Act. The section provides:
‘Postponement of elections
8(1) The Commission may request the Minister or, in the case of a by-election,
the MEC, to postpone the voting day determined for an election if the

Commission is satisfied that it is not reasonably possible to conduct a free
and fair election on that day.
(2) On receipt of such a request, the Minister by notice in the Government
Gazette, or the MEC by notice in the Provincial Gazette, must postpone
the voting day for the election to a day determined in the notice, but that
day must fall within a period of 90 days of the applicable date mentioned
in section 24(2) or 25(3) of the Municipal Structures Act.’
The result is that, if Commission requests the MEC (defined as the member of
the Executive Council of a province responsible for local government in the
province) to postpone the voting day, the MEC is obliged to postpone the voting
day by notice as prescribed.

[6] Secondly, the applicant sought an order that he be allowed to register as
a candidate in the postponed by-election.

[7] The applicant further sought that the court should impose ‘all the
penalties and sanctions provided for’ pursuant to the Electoral Act 73 of 1998
(the Electoral Act) and the Municipal Electoral Act, upon the ANC and IFP as a
result of their alleged contravention of the Municipal Electoral Act.

[8] Fourthly, the applicant sought that it be ordered that the South African
Police Services should expand their investigations to include the facts set out
by him in the application.

[9] Fifthly, the applicant sought an order that all voters registered since
March 2013 in Ward 22 be struck off the voters roll.

[10] The matter was set down for hearing on the afternoon of 23 April 2013,
the day before the scheduled by-elections were to take place.

[11] The applicant appeared in person. The Commission was not
represented but filed an affidavit in apparent opposition to the application. I say
apparent, as the bulk of the factual evidence placed before the court by the
applicant was uncontested and the Commission was not represented at the
hearing, despite it being aware of the time that the matter was to be heard.
Indeed, the Commission advised that it would abide the decision of the court. It
is to be regretted that the Commission, which fulfils one of the most important
functions in our democratic society, did not see fit to be represented at the court
hearing where its actions were under scrutiny. Questions which arose during
the hearing remain unanswered because of such absence and I am of the view
that the Commission should in all instances arrange to be represented before
this court as its contribution during the hearing of disputes involving it or its
officials, can assist to advance the necessary understanding which a court
should have so that matters which should be taken into account, in particular
practical answers to questions that may arise during such hearing, are properly
taken into account. The Constitutional Court said in Electoral Commission of
the Republic of South Africa v Inkatha Freedom Party 2011 (9) BCLR 943 (CC)
at par 34 that “[i]t is undesirable that matters involving the conduct of elections
should be decided without the benefit of the views of the Commission”.

[12] The ANC was represented by advocate Rall SC and the IFP by advocate
Oliff. The ANC did not file an affidavit but stressed that it denied any impropriety
as alleged by the applicant in his affidavit. The IFP filed an affidavit in which it
denied any impropriety on its behalf but largely supported the facts regarding
improper voter registrations as alleged by the applicant.

[13] The main issue for immediate determination was whether the by-election
in Ward 22 should be postponed as a result of firstly, improper voter
registrations and secondly, the refusal to accept the nomination of the applicant
as a candidate in the by-election, rendering the by-election not to be free and

fair, the latter to be a constitutional imperative of any election. The Constitution
provides in s 19(2) that ‘[e]very citizen has the right to free, fair and regular
elections of any legislative body established in terms of the Constitution.’

[14] These issues were before this court on the basis that the decision of the
Commission not to remove certain unlawful registered voters from the roll and
its decision not to register the applicant as a candidate in the by-election fell to
be reviewed.

[15] The postponement was requested on the basis that it would not be
possible to conduct a free and fair election on the 25th of April 2013 by virtue of
the two deficiencies referred to above and thus necessitating the
postponement.

[16] The undisputed evidence of the applicant was that he wished to register
as an independent candidate in the election in Ward 22. He was aware of the
timetable issued by the Commission for the by-election, which was issued
pursuant to the provisions of s 17(1) of the Municipal Electoral Act. I also quote
s 17(2) and (3) of this Act as they too are relevant in this matter:
‘Requirements for ward candidates to contest election
17(1) A person may contest an election as a ward candidate only if that person
is nominated on a prescribed form and that form is submitted to the office of the
Commission’s local representative by not later than a date stated in the timetable
for the election.
(2) The following must be attached to a nomination when the nomination is
submitted:
(a) In the case of an independent ward candidate, a prescribed form with
the signatures of at least 50 voters whose names appear on the
municipality’s segment of the voters’ roll for any voting district in the
contested ward;
(b) a prescribed acceptance of nomination signed by the candidate;
(c) a copy of the page of the candidate’s identity document on which the
candidate’s photo, name and identity number appear;

(d) a deposit equal to a prescribed amount, if any. payable by means of a
bank guaranteed cheque in favour of the Commission.
(3) The Commission must accept a nomination submitted to it and allow the
nominated person to stand as a candidate in the ward if:-
(a) the provisions of section 16 and this section have been complied with’.

[17] The timetable is an important document as the dates and times therein
contained obtain the force of law when the provisions of s 17 are applied. The
timetable lays down no less than twelve target dates, two of which are relevant
to this application. According thereto, the cut-off date and time for submission
of nomination of candidates was 17h00 on 3 April 2013 and the cut-off date and
time for a party or independent candidate to submit outstanding ward candidate
documents was 17h00 on 9 April 2013.

[18] The applicant avers that provisions of the time table are ‘imprecise’,
resulting in a noncompliance therewith by him thus qualifying him for
condonation. The facts are that the applicant arrived at the office of the local
representative of the Commission on 3 April 2013 in order to submit his
nomination as a candidate in the by-election to be held on 24 April 2013. It is
not in dispute that the applicant complied with the provisions of s 17 of the
Municipal Electoral Act, save that he failed to present a bank guaranteed
cheque as provided for in s 17(2)(d) of the Municipal Electoral Act, but instead
tendered a cash payment. The representative of the Commission refused to
accept the money, insisting upon a bank guaranteed cheque was to be
submitted with the nomination documents. According to the evidence of the
applicant, the banks were closed at the time of his submission of the nomination
documents and he was unable to then obtain a bank guaranteed cheque.

[19] The applicant stated that by virtue of the unclear wording of the timetable
he should have been entitled to submit a bank guaranteed cheque by the
second cut-off date on 9 April 2013 as it allowed for a person to submit

‘outstanding candidate documents.’ Although there is some force in this
argument if regard is had to the wording of the timetable, it does not take
account the provisions of s 17(2A) of the Municipal Electoral Act. It provides:
‘If any document mentioned in paragraphs (b) and (c) of subsection (2) were not
attached to the nomination, the Commission must –
(a) notify the nominating party or person in writing by no later than the date
stated in the election timetable; and
(b) allow the nominating party or person to submit their outstanding
document by no later than a date stated in the election timetable.’

[20] The timetable thus allowing for ‘outstanding’ documents to be filed,
restricts it to those documents referred to in s 17(2A) and the bank guaranteed
cheque can strictly speaking not be produced at the later date. The applicant is
correct that the timetable itself does not so specify and it may be prudent for
the Commission to, in the future, specify which documents are to be supplied
together with the submission of the nomination and which documents may be
submitted as ‘outstanding’ documents on the second date to make it absolutely
clear to laypersons that only documents referred to in s 17(2A) may be
submitted at the later date. However, and more importantly, the refusal to
accept the cash offered by the applicant, together with his nomination, is in my
view, decisive of this issue.

[21] In African Christian Democratic Party v Electoral Commission and
Others 2006 (3) SA 305 (CC) at paragraphs 24 – 28 it was held:
’[24]
Construed on its ordinary language, section 14 of the Municipal
Electoral Act suggests that a political party may not contest an election if it has
not, by the prescribed date, lodged with the Commission’s local representative
three things: a notice of intention to contest the election; a party list and a deposit
in the prescribed amount payable by means of a bank guaranteed cheque.
Similarly section 17 provides that a ward candidate may not contest an election
unless he or she has been nominated in the prescribed manner and on the
prescribed form by the due date, and that form must have been submitted
together with the prescribed deposit to the office of the Commission’s local office.
In construing whether there has been compliance with these provisions I am

mindful of the reasoning of Van Winsen AJA in Maharaj and Others v Rampersad
(1964 (4) SA 638 (A) at 642 C):

“The enquiry, I suggest, is not so much whether there has been ‘exact’, ‘adequate’
or ‘substantial’ compliance with this injunction but rather whether there has been
compliance therewith. This enquiry postulates an application of the injunction to
the facts and a resultant comparison between what the position is and what,
according to the requirements of the injunction, it ought to be. It is quite
conceivable that a court might hold that, even though the position as it is not
identical with what it ought to be, the injunction has nevertheless been complied
with. In deciding whether there has been a compliance with the injunction the
object sought to be achieved by the injunction and the question of whether this
object has been achieved, are of importance.”

[25] The question thus formulated is whether what the applicant did
constituted compliance with the statutory provisions viewed in the light of their
purpose. A narrowly textual and legalistic approach is to be avoided as Olivier
JA urged in Weenen Transitional Local Council v Van Dyk: (2002 (4) SA 653
(SCA) at 659):

“It seems to me that the correct approach to the objection that the appellant had
failed to comply with the requirements of s 166 of the ordinance is to follow a
common-sense approach by asking the question whether the steps taken by the
local authority were effective to bring about the exigibility of the claim measured
against the intention of the legislature as ascertained from the language, scope
and purpose of the enactment as a whole and the statutory requirement in
particular (see Nkisimane and Others v Santam Insurance Co Ltd 1978 (2) SA 430
(A) at 434 A – B). Legalistic debates as to whether the enactment is peremptory
(imperative, absolute, mandatory, a categorical imperative) or merely directory;
whether ‘shall’ should be read as ‘may’; whether strict as opposed to substantial
compliance is required; whether delegated legislation dealing with formal
requirements are of legislative or administrative nature, etc may be interesting, but
seldom essential to the outcome of a real case before the courts. They tell us what
the outcome of the court’s interpretation of the particular enactment is; they cannot
tell us how to interpret. These debates have a posteriori, not a priori significance.
The approach described above, identified as ‘… a trend in interpretation away from
the strict legalistic to the substantive’ by Van Dijkhorst J in Ex parte Mothuloe (Law
Society, Transvaal, Intervening) 1996 (4) SA 1131 (T) at 1138 D – E, seems to be
the correct one and does away with debates of secondary importance only.”

[26] It is common cause in this case that the applicant had lodged the notice
of intention to contest the election and the party list with the local office of the
Commission. The dispute turns on whether it had lodged an adequate deposit
as required by the section. Before interpreting what section 14(1)(b) and section
17(2)(d) mean when they stipulate “a deposit equal to a prescribed amount, if
any, payable by means of a bank guaranteed cheque in favour of the
Commission”, it is necessary to consider the central payment facility instituted by
the Commission in these elections.

[27] The first question that arises is whether that facility was in conflict with
the provisions of sections 14 and 17. Sections 14 and 17 contemplate that the
deposit will be paid at the local office of the Electoral Commission. The bulk
payment facility contemplates however that the payment can be made elsewhere
─ at the head office of the Commission. The question that arises is whether to
the extent sections 14 and 17 state that the payment is to be made at the local
government office, it is a peremptory provision that prevented the Commission
from providing an alternative location for payment, in this case, the national office
of the Commission. The purpose of section 14 (and section 17) is to ensure that
a deposit is paid by a political party (or ward candidate) to establish that they
have a serious intention of contesting the election. There is no central legislative
purpose attached to the precise place where the deposit is to be paid. In my
view, to interpret sections 14 and 17 in a manner which prohibits the Commission
from making such a facility available to political parties would be to read the
provision unduly narrowly and to misunderstand its central purpose. In effect,
what the Commission did, after consulting with the Party Liaison Committees,
was to make an additional method of payment available to parties in a manner
which facilitated their participation in the elections. Many parties took advantage
of this system. In so doing, the Commission did not offend the intention of the
legislature in requiring the payment of deposits as stipulated in sections 14 and
17 of the Municipal Electoral Act.

[28] An interpretation of sections 14 and 17 which accepts that the
Commission had the power to act in such a manner facilitates the participation
in elections and is far more consistent with our constitutional values, than reading
the section strictly to prohibit such a payment system. I conclude therefore that
the provisions in sections 14 and 17 which state that payment should be made

at the local office of the Commission, properly construed, do not prevent the
Commission from establishing a system such as the central payment facility
under consideration here. That facility was available to all those who wished to
contest the elections and permitted them to make payment at an alternative
venue to facilitate participation in the municipal elections. The system was both
fair and sensible and facilitated participation in the elections without undermining
the obligation of candidates and parties to pay deposits to evidence the
seriousness of their intention of contesting the elections. Payments made under
the central payment system complied therefore with the provisions of sections
14 and 17.’

[22] If regard is had to the purpose of the timetable and its requirements, it
cannot be said that there has been any disadvantage or negative impact on the
election. Pillay J, said the following in National Peoples Party v Electoral
Commission (002/11 IEC) [2011] ZAEC 3 (21 April 2011) at para 23:
‘[23]
The purpose of the time-table is to facilitate the smooth running of the
election process. It is intended to allow the administration of elections to proceed
without disruption and for officials to properly prepare for the election by, inter
alia, the announcement of the contesting parties and candidates and preparation
and distribution of ballot papers to mention a few aspects. It also serves to avoid
unfair advantage, occasioned by late entry, to a particular party (or candidate).
Most of all, it is intended to allow time for the voter to be timeously informed of
everything he or she has to be aware of before casting a vote, for example who
is participating in the election, which party is represented in a particular ward,
and which individuals are running for election in a particular municipality.’

Pillay J, went on to say in para 38:
‘[38]
While it must be recognised that the time-table is to be adhered to, it is
hardly likely that any subsequent steps as set out in the time-table would have
been commenced with when the applicant’s documents were tendered. No harm
would have been caused by him accepting the documents when it was tendered
even on the assumption that it was after 17h00 on the 25 March 2011, because
it would not have resulted in any disadvantage or prejudice to anyone. The
respondent would not have been inconvenienced thereby because the next
segment of the process of preparing for the election had not yet started, for
example starting to check the documents and informing parties and candidates
of outstanding or faulty documents.’

Thus, although compliance by the applicant was not strictly to what it ought to
have been, the injunction has nevertheless been complied with (Maharaj at p
642 ) and the object of the Municipal Electoral Act to ensure that the applicant
has a serious intention of contesting the election, has been achieved.

[23] This being so, the cash offered by the applicant evinced the same
serious intention to contest the election referred to by O’Regan J in the African
Christian Democratic Party case. A practical plan could have been made to
allow the applicant to participate in the election. He could either have been
afforded the opportunity to deposit the cash there and then and to replace that
deposit with a bank guaranteed cheque the next day or the Commission could
have accepted the cash in lieu of a bank guaranteed cheque. This would have
facilitated participation in the elections in a manner that is more consistent with
our constitutional values than prohibiting participation of a candidate by strictly
interpreting legislative purposes. Had the Commission supplied cogent reasons
why such a cash payment would have been unacceptable, I may have
considered the matter differently but, in the absence of any indication that there
is a legislative purpose attached to a bank guaranteed cheque as against cash
or that the Commission was unable to receive cash for any particular reason, I
am of the view that the tender of the cash amount in lieu of the bank guaranteed
cheque was sufficient to ‘evidence the seriousness of their (his) intention of
contesting the elections’. See the African Christian Democratic Party case at
para 28.

[24] This interpretation of s 17 ‘…facilitates the participation in elections and is
far more consistent with our constitutional values, than reading the section strictly to
prohibit such a payment system.’ (African Christian Democratic Party at para 28.)
Such an interpretation does not prevent the Commission from accepting
payment in cash as an alternative to facilitate participation in the election. Such
a system of payment would be both ‘fair and sensible’ to facilitate ‘participation
in the elections without undermining the obligation of a candidate “...to pay
deposits to evidence the seriousness of their intention of contesting the
elections’ (African Christian Democratic Party case at para 28).

[25] The tender of cash therefore complied with the provisions of s 17. I find
support for this view also in para 31 of the African Christian Democratic Party
case where it was said:

‘[31]
In considering whether the surplus payment held by the Commission
should be considered to be in compliance with the provisions of sections 14 and
17, the importance of promoting multi-party democracy and the political rights of
citizens should be borne in mind. Of crucial relevance also is the underlying
statutory purpose of sections 14 and 17 which appears to be to ensure that
candidates and political parties contesting elections declare their intentions to do
so by a certain date and provide the Electoral Commission with the necessary
information to enable them to organise the elections. The payment of an electoral
deposit ensures that the participation of political parties and candidates in the
elections is not frivolous. The payment of the deposit is complementary to the
key notification required for organising the elections, namely, the notification of
the intention to participate and the furnishing of details of candidates.’

[26] The failure to allow the applicant to enter the by-election as a candidate
would have negatively affected the free and fair character of the elections which
were to commence a few hours after the hearing of this application. If the
Commission was represented as one would have preferred, the court could
have been advised that it would have been possible to include the applicant as
a candidate on the ballot papers the following morning. Although I doubt that
such would have been possible, the applicant should also have been afforded
the opportunity to canvas the voters in the ward during the period preceding the
election. This too, is his Constitutional right pursuant to the provisions of s
19(1)(c) of the Constitution which reads as follows:
’19. Political rights
(1)
Every citizen is free to make political choices, which includes the right
……….

(c)
to campaign for a political party or cause.’

His inability to do so would negatively affect upon his candidacy and render the
election anything but free and fair. This conclusion, in my view, required that
the by-election in Ward 22 was to be postponed pursuant to s 8 of the Municipal
Electoral Act.

[27] In the circumstances, the refusal of the official in the employ of the
Commission to accept the nomination of the applicant as a candidate in the by-
election was based on an unduly narrow application of the provisions of s 17 of
the Municipal Electoral Act and the Commission’s decision to refuse to accept
the applicant as a candidate, falls to be reviewed and set aside.

[28] Having regard to the aforesaid, I was of the view that on condition that
the applicant tendered the deposit to the Commission forthwith, the order in
paragraph three below should be issued.

[29] The second, main issue which is set out in the affidavit of the applicant,
is the large scale unlawful, or even fraudulent, registration of voters in Ward 22,
which voters have been ‘bussed’ into the ward from neighbouring wards to
register for the by-election in Ward 22. It appears that by-elections are
particularly susceptible to this practice in that voters from wards in which there
are no by-elections and thus where their votes are not needed, are brought into
a ward where by-elections are to be held in order to boost the number of voters
of particular political parties or candidates.

[30] The applicant, as the former ward Councillor of Ward 22, knew the ward
and its people well. He stated that a number of residents had left the ward to
move to newly built RDP (Reconstruction and Development Plan) houses,
which became available to them. Whilst there were 3695 voters in the previous
election in 2011, this number should now have reduced by virtue of the
relocation of a number of families to their new houses. There was, in addition,
no large increase of inhabitants in the ward. Nevertheless, there were a sudden
extraordinary number of new voters registered in the ward that surged the
number of registered voters to 6165. It is clear that something drastic happened
in the ward regarding voter registration. The applicant further stated that he had
had discussions with certain leaders of both the ANC and IFP, who had
admitted that they had brought persons from other wards to register in Ward
22. Both political parties deny any untoward conduct and I need not make any
finding in this regard. The IFP supports the applicant and supplies evidence on
affidavit of persons, not from Ward 22, having been registered as voters in the
ward. The applicant stated that he knew the people of Ward 22 and found
persons at the office of the Commission, who were registering for the upcoming
election who he had never seen before. He set out that there was a large scale
registration of persons who did not reside within Ward 22.

[31] This unlawful registration of voters was possible because any person
who arrived at the office of the Commission as a voter only needed to supply
his or her identity document and fill in a form as to where that person alleged
he or she resided within the ward. The Commission accepted this as evidence
and registered such applicant as a voter. If the contentions of the applicant are
indeed correct, and there appears to be no reason not to accept them as being
correct, a sudden influx for registration of more than 2000 persons in Ward 22
should have raised flashing red lights with the Commission.

[32] On this basis, also, there has been a large scale registration of persons
who were not from Ward 22 but were brought from elsewhere to register by
supplying false addresses, the applicant should be entitled to relief.

[33] Mr Rall, appearing for the ANC, argued that the failure to join the MEC
and the registered voters, non-suited the applicant as a result of non-joinder of
these parties. I do not agree. Pursuant to the provisions of s 8 of the Municipal
Electoral Act, the MEC is obliged to postpone the voting day in the event of the
Commission requesting him or her to so. Once this court orders the
Commission to issue such a request, the MEC is bound thereby.

[34] The further argument was that those voters who were fraudulently
registered were not cited in these proceedings, resulted in a non-joinder of
parties. I do not agree. It is quite apparent that a large number of persons,
whose names are unknown to the applicant, were recently registered as voters
in Ward 22. The applicant’s request for a copy of the voters’ roll was met by a
refusal to supply one to him by virtue of the fact that he was not a candidate in
the election. The application could not possibly know the names of the unlawful
registered voters in order to cite them in these proceedings. Nor do I intend
proposing any order that would affect their current status as registered voters
of Ward 22.

[35] Mr Rall further argued that the remedy which the applicant should have
pursued is contained in s 15 of the Electoral Act which reads:
‘15. Objections to voters’ roll.-

(1) In relation to any segment of the voters’ roll or a provisionally compiled voters’
roll, any person may object to the Commission in the prescribed manner to
-
(a) the exclusion of any person’s name from that segment;
(b) the inclusion of any person’s name in that segment; or
(c) the correctness of any person’s registration details in that segment.
(2) A person who objects to the exclusion or inclusion of the name of another
person, or to the correctness of that person’s registration details, must
serve notice of the objection on that person.
(3) The Commission must decide an objection and, except for an objection in
relation to a provisionally compiled voters’ roll, by not later than 14 days
after the objection was made, notify the following persons of the decision:
(a) The person who made the objection;
(b) the chief electoral officer; and
(c) in the case of an objection against the exclusion or inclusion of the
name, or the correctness of the registration details, of a person other
than the objector, that other person.
(4) The chief electoral officer must give effect to a decision of the Commission in
terms of subsection (3) within three days.
(5) No appeal may be brought against the Commission’s decision, subject to
section 20 (2) (a) of the Electoral Commission Act.’

[36]  The provisions of s 15 of the Electoral Act may not be entirely suitable
for the situation described by the applicant where there was a large scale
registration of persons who are unknown to the applicant. When there is such
large scale unlawful registration of voters it is for the Commission itself to act
when the unlawful conduct is brought to its attention, the latter which the
applicant did do when he visited the Commission’s’ head office in Centurion.

[37] Although I will not attempt to suggest all the suitable measures which the
Commission could and should take in order to avoid large scale unlawful voter
registration, some steps do come to mind.

[38] The Commission is able to determine the pattern of registration of any
individual voter by having regard to that particular voter’s past registration as a
voter. If there were large numbers of voters who suddenly registered in Ward
22 but who were previously registered in surrounding wards, it would be an
indication that something was amiss. Unfortunately the information as to such

voter migration was not made available to us. The Commission should take the
information regarding each voter who registered in Ward 22 since March 2013
and utilise its officials to see if such persons were indeed residing at their former
addresses and not within Ward 22. If such persons are still so resident at their
former addresses and found to reside outside Ward 22, the Commission must
take steps to have such persons removed from the voters’ roll of Ward 22. The
Commission is entitled to acquire the necessary staff to do such an exercise,
even on an urgent and wide scale basis, as is envisaged in s 5(2) of the
Electoral Commission Act which provides:
‘The Commission shall, for the purposes of the achievement of its objects and
the performance of its functions –
(a)
acquire the necessary staff whether by employment, secondment,
appointment on contract or otherwise;
(b)
...
(c)
...
(d)
...
that is necessary for or conducive to that.’
The Act is a broad guideline and the Commission is entitled to take steps in
order to promote free and fair elections.

[39] The Commission could then mero motu apply provisions of s 15 (3) of
the Electoral Act to correct the unlawful position. If s 15(3) is found to confer
insufficient machinery the Commission is hampered in that it does not have the
necessary legal machinery to correct the voters’ roll, it should act in order to
avoid such a situation in the future. It has the duty to strengthen the
constitutional democracy and promote the electoral processes without any
prescription or curtailment of its powers (see s 4 of the Electoral Commission
Act). It can further make recommendations in connection with the electoral
legislation as is provided for in s 5 (1)(j) of the Electoral Commission Act.

[40] If it is found that there are a large number of unlawful registered voters
in Ward 22 these voters must be removed from that voters’ roll pursuant to s 5
(1)(e) of the Electoral Commission Act. The Commission is to ‘compile and

maintain voters’ rolls by means of a system of registering of eligible voters by
utilising data available from government services and information furnished by
voters’. Each unlawfully registered voter can be removed from the voters’ roll
pursuant to an application to court if necessary.

[41] It is because of this view that the order in 2 below was issued. Unlawfully
registered voters must be removed from the voters’ roll as such a situation, un-
remedied, is not conducive to a free and fair election in a democratic society.

[42] The remainder of the relief sought by the applicant can shortly be dealt
with. This matter came before the court as a matter of urgency. Some parties
did not have the time to file affidavits in support of their contentions. It would be
dangerous to impose penalties and sanctions upon any of them without each
of the allegations being properly ventilated before a court. In any event, the
imposition of such penalties or sanctions is not urgent in its nature and should
the applicant feel it is necessary to pursue such penalties and sanctions, he is
not precluded from doing so.

[43] This court is not empowered to instruct the South African Police Services
to perform its duties. A complaint was laid with them and the applicant is free
to supply them with whatever further information he so wishes and only if there
is indeed a failure by the South African Police Service to pursue an investigation
in relation to the fraudulent conduct alleged on the papers, should the applicant
approach senior officials within the South African Police Service for assistance.

[44] Also, it would indeed be dangerous for this court to declare that all voter
registrations since a particular date be struck off the voters’ roll. This court
would be assuming the role of the Commission without having the necessary
information in relation to the unlawful registration and in so doing i.e. striking off

all registered voters who registered since a particular date this court may cause
an injustice to be done to those voters who were entitled to and did lawfully
register during that time period. The removal of voters, unlawfully registered on
the voters’ roll of Ward 22, would be in the hands of the Commission once the
investigation referred to in the second order below has been completed. The
intention with the second order below is for the Commission to not only
investigate but also to take the necessary steps against any unlawfully
registered voters in order to remove them from the voters’ roll.

[45] The applicant did, in the replying affidavit, seek further relief in that it
required of this court to make recommendations to the President of the Republic
of South Africa in order to address a number of inefficiencies such as the
unlawful registration of voters during a by-election by the introduction of
necessary legislation.  This court, in my view,  is not the body who should do
so, but, pursuant to the provisions of s 5(1)(j) of the Electoral Commission Act,
it is the Commission who may and can make such recommendations in relation
to the review of electoral legislation currently in existence. The applicant is free
to make these recommendations to the Commission, the latter that is the body
empowered to make recommendations regarding the more efficient functioning
of the electoral processes in the Republic.

[46] Having regard to the aforegoing the following order was issued on an
urgent basis on the night preceding the by-election in Ward 22 on 24 April 2013.
‘1.
The Independent Electoral Commission (first respondent) is ordered to
request, as contemplated by Section 8 of the Local Government Municipal
Electoral Act 27 of 200. the Member of the Executive Council to postpone
the by-election to be held on 24 April 2013 in Ward 22 of Abaqulusi
Municipality, Kwazulu-Natal;
2.
The Independent Electoral Commission is ordered to investigate the
allegations of fraud raised in the application in relation to the voters’ roll of
Ward 22 of the Abaqulusi Municipality, Kwazulu-Natal;
3.
The Independent Electoral Commission is ordered to accept the
nomination of Andre Dawid Lötter (the applicant) as a candidate in the

municipal by-election to be held in Ward 22 of the Abaqulusi Municipality,
Kwazulu-Natal;
4.
The Registrar if this court and the Registrar of the Kwazulu-Natal High
Court, Durban, are authorised to communicate the contents of this order to
the parties by email or fax or such other method as may be appropriate.’

WEPENER J

JUDGE OF THE ELECTORAL

COURT

DATE: 7 May 2013