REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT HELD AT DURBAN

CASE NO: 001/13 EC

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 3 (6 December 2013)

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J U D G M E N T
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WEPENER J: (MTHIYANE AP AND MOSHIDI J CONCURRING)

[1] The applicant is a former ward councillor of Ward 22 of the Abaqulusi
Local Municipality and was also the applicant in the matter that served before
this Court in April 2013. The first respondent is the Electoral Commission (‘the

Commission’) a body established pursuant to the Constitution in terms of the
Electoral Commission Act (‘the Electoral Commission Act’). The second and
third respondents are the African National Congress (‘ANC’) and the Inkatha
Freedom Party (‘IFP’), both respectively, registered political parties who had 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.

[2] During April 2013 this Court heard an application for review of a decision
of the Electoral Commission to call a by-election pursuant to the provisions of
s 20 (1) of the Electoral Commission Act 51 of 1996 (‘the Electoral Commission
Act’). When doing so, this Court sat as a court of review as provided for in s
20(1). On 7 May 2013 this Court delivered a judgment in the review
proceedings. The matter is reported as Lötter v Electoral Commission [2013] 4
All SA 152 (ELECT CT); 2013 JDR 1545 (EC); [2013] ZAEC 1. For the sake of
completeness I set out the orders given in the matter:
‘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.’

Only the order in paragraph 2 is relevant for purposes of this judgment.

[3] The Court gave the reason for the order in 2 above to investigate the
allegations of fraud in paragraphs 40 and 41 of the Lötter judgment.  The reason
for that order was that such investigation must lead to the removal of unlawfully
registered voters from the voters’ roll.

[4] Pursuant to the orders issued by the Court, the applicant sought leave
from the Constitutional Court to appeal this Court’s order. On 2 September 2013
the Constitutional Court refused leave to appeal but remitted to this Court two
questions for consideration:
‘1.
Save as set out in paragraph 2 below, the application for leave to appeal
against the order of the Electoral Court made on 23 April 2013 is refused,
as it would not be in the interests of justice for this Court to hear the matter
at this stage.
2.
The matter is remitted to the Electoral Court for it to consider:
(a)  the applicant’s contention that the first respondent did not comply with
paragraph 2 of the order of the Electoral Court because its investigation
of the allegations of fraud in relation to the voters’ roll of ward 22 of
Abaqulusi Municipality, Kwazulu-Natal was inadequate as its report did
not identify the perpetrators of the fraud; and
(b) whether, if the perpetrators of the fraud become known, sanctions or
penalties prescribed by law should be imposed.’

[5] Pursuant to the above order, this Court on 11 November 2013 issued the
following directions:
‘1.
On 2 September 2013 the Constitutional Court refused the applicant Andrè
Dawid Lötter leave to appeal against the judgment and order made by this
court on 23 April 2013.

2.
Despite refusing leave the Constitutional Court, however, remitted the
matter to this court with the direction that this court consider whether the
Commission complied adequately with the order made by this court, which
ordered the Commission to investigate the allegations of fraud raised in the
application in relation to the voters’ roll of Ward 22 of Abaqulusi
Municipality, KwaZulu-Natal, “in that the names of the persons involved in
the fraud are not identified”.

3.
Given that the order of the Constitutional Court cannot be effected, without
this court being placed in possession of the Commissioner’s Report of its
investigation, affidavits and such submissions as may be relevant, the
parties are directed as follows:

3.1. The Commission is directed to file with the Secretary of this court,
the Report of its investigations conducted in terms of paragraph 2 of
the order made by this court on 23 April 2013.

3.2. The applicant, Mr Andrè Dawid Lötter, is directed to file an affidavit
setting out grounds for his contention that paragraph 2 of the order
made by this court on 23 April 2013 was not complied with, but limited
to the aspect reserved by the Constitutional Court for consideration
by this court, namely that the investigation ‘was inadequate as its [the
Commission’s] report did not identify the perpetrators of the fraud’.

3.3. The Commission is directed to, within three days of receipt of Mr
Lötter’s affidavits, to file such response as it may consider necessary.

3.4. Upon the filing of the documents referred to above, the parties may
file such further heads or written submissions as they may consider
necessary, but confined solely to the aspect referred to in paragraph
2 above, reserved for consideration by this court. Such heads should
not be longer than 10 pages. ‘

In response to the above directions the Commission filed two reports, the first
dated 11 July 2013 and the second dated November 2013 and other
documentation.

[6] Despite the limited issues for determination, the applicant filed an
affidavit of some 105 pages (without annexures) citing a number of additional
respondents including all the Commissioners of the Commission and other
officials of the Commission. In his affidavit and in argument before us the
applicant attempted to widen the issues which were referred to this Court by
the Constitutional Court for consideration. At the commencement of the
proceedings, The Judge Presiding, Mthiyane DP, explained to the applicant the
issues that were referred to this court for consideration.  All attempts to assist
the applicant to only deal with the matters that were properly before the court
for consideration or to obtain clarification from him regarding what can only be
regarded as sweeping, unsubstantiated allegations, were regrettably,  largely
unsuccessful as the applicant showed little understanding or appreciation for
that which was to be decided by the Court.  Efforts to assist him were met with
resentment and regarded as an interruption as he continued to deliver a
prepared speech, most of which bore no or little relevance to the issues that
were referred to this Court by the Justices of the Constitutional Court.

[7] It is not necessary to embark upon an analysis of some of the new
matters raised by the applicant. This hearing was only concerned with the two
issues referred to us by the Constitutional Court i.e. whether: (a) the
Commission complied with this Court’s order that it should investigate the
allegations of fraud as set out in paragraph 2 of the order of this Court and (b)
whether, if the perpetrators of the fraud become known, sanctions or penalties
prescribed by law should be imposed.

[8] As already indicated, the Commission filed an affidavit in which it
explains the steps it took in order to comply with the order of this Court directing
it to investigate the allegations of fraud made by the applicant. It is necessary
to set in some detail the steps taken by the Commission, the relevant portion of
which is as follows:
‘THE REPORTS ON THE INVESTIGATION INTO ELECTORAL FRAUD IN
WARD 22

In response to the directions of this Court, the Commission has lodged two
reports with the Court.  The first report is one that served previously before
this Court and before the Constitutional Court, dated 11 July 2013. The first
report details the first phase of the investigation by the Commission into
Ward 22.  In this phase, the Commission electronically analysed voter
movement and identified a pattern of registration that was unnatural and
peculiar and which provided, in the view of the Commission, prima facie
evidence of possible registration fraud.  This is evident from paragraphs 2
– 4 of the first report.

The provincial electoral office did an in loco investigation in relation to the
high number of voting district moves in Ward 22 and dispatched a team of
25 field workers to conduct a more in depth investigation from 13 – 17 May
2013.

The investigation included visits to addresses provided on registration
forms to determine whether the applicants were actually ordinarily resident
at such addresses.  As a result of the investigation, 1541 applicants were
identified as those who ought to be returned to the voting district of original
registration which was outside of Ward 22.

Because the decision to remove an individual from the voters’ roll for a
particular Ward constitutes administrative action on the part of the
Commission, any decision to remove the name of an an individual from the
roll must, by law, be preceded by a procedurally fair process which includes
giving notice to the individual of the proposed removal from the roll and an
opportunity to make representations.  Therefore, a procedurally fair
process was followed by the Commission, as detailed in the first report,
before the names of a total of 1525 voters were removed from the segment
of the voters’ roll for Ward 22.

All registrations which appeared to the Commission to have been
fraudulent were referred to the SAPS and all relevant information which the
Commission possessed was provided to the SAPS.  This included full
names, identity numbers and known addresses.
Moreover, the Commission met regularly with leaders of political parties in
the province with a view to seeking their cooperation in decisively dealing
with registration fraud.

The Applicant has criticised the process followed by the Commission which
led up to the removal of 1525 people from the voters roll in Ward 22.  He
alleges that the process followed was “misdirected and tax-payer-

expensive” because the Commission used 4 different ways to notify
persons who were about to be removed from the voters’ roll for Ward 22 of
the proposed action.

This criticism, with respect, is clearly premised on the applicant’s ignorance
of the requirements of fair administrative action and more particularly of the
importance of the right to vote in our democracy.  The effect of removing
someone from the segment of the voters’ roll in a ward in which that person
is validly registered is effectively to prevent that person from exercising
his/her constitutionally protected right to vote.  Such action cannot be
undertaken lightly and without due and careful determination by the
Commission that the person is not entitled to vote in that Ward. Moreover,
the community in Ward 22 are not a homogenous group who can all be
notified via one method of notification.  The community speaks different
languages, has differing levels of access to social and other media,
internet, email and the like.   For notice to be meaningful, it must be
provided in the way in which the person concerned is most likely to receive
it.  Therefore, the Commission chose to utilise a number of different media
for notifying people of the fact that it proposed to remove them from the roll
for Ward 22.  This, I submit, was appropriate and necessary.  The
applicant’s criticism in this regard is therefore entirely without merit.

The Second Report

Once it became clear to the Commission that there was a possibility of
wide scale fraudulent registration of voters in Ward 22, the Commission
decided that its investigation required a second phase focused on new
registrations or first time applicants for registration.

In the second phase, a total of 762 applicants were considered as part of
the Commission’s investigation.  First time applicants amounted to 510
people and the balance of 252 people were those who reapplied for
registration as voters prior to the special registration weekend in March
2013.

From 11 – 13 September 2013, a team of trained electoral project co-
ordinators visited each of the addresses given as part of the REC1
application for registration form.  At the given addresses, investigators
enquired whether the person concerned was ordinarily resident at that
address or not.  If the answer was in the affirmative, that applicant was
recommended for retention on the segment of the voters’ roll for Ward 22.
If the person was not resident at that address, he/she was identified as a
candidate to be removed from the segment of the voters’ roll for Ward 22.

The investigation also revealed (as is clear from the section of the table on
page 2 of the second report, marked “Voters found during Feb TCR”) new
residents in the area who had not registered for Ward 22.
In total, 343 applicants were not found or known to reside at the given
addresses.  Accordingly, notices of intention to correct the registration
details for the 343 applicants identified were issued.  These were delivered
to the given addresses by the Sheriff.  Moreover, advertisements were
taken out in a local newspaper, notices were placed in the municipal offices
in Vryheid and at the local offices of the Commission and an attorney was
placed at the local offices of the Commission to assist and evaluate any
representations which were made.  Ultimately, only 6 persons actually

made representations and all 6 of those were retained on the segment of
the voters’ roll for Ward 22.

Accordingly:
30.1 337 persons were removed from the segment of the voters’ roll for
Ward 22 and placed back on the segment of the roll for the voting
districts in which they were originally registered.  This was done in
terms of section 11(1)(a) of the Electoral Act.

30.2 Where no previous registration was evident, that person was placed
on a section of the voters’ roll under a new category called “registered
in an incorrect voting district.”  This was done in terms of section
11(1)(b) of the Electoral Act.
30.3 Twenty-eight (28) applicants whose REC1 forms could not be
located were retained on the segment of the voters’ roll in Ward 22.

The information gathered in this investigation was provided to the SAPS
which has an investigation into fraud in Ward 22 underway already under
Vryheid CAS 38/04/2013.’

[9] On his own version the applicant asserts that ‘most of the perpetrators
of the fraud committed in Ward 22 of Abaqulusi…have indeed already become
known…’ The applicant does not state why there are others that are not known.
I must consequently accept the version of the Commission that it indeed
identified the perpetrators of the fraud. The applicant conceded during
argument the number of voters removed from the roll is as set out by the
Commission.

[10] It is, in my view, clear that the Commission has done a thorough and
complete investigation into the fraudulent registration of voters in Ward 22. It
identified and removed fraudulently registered voters from the voters’ roll. All
evidence of fraud has been forwarded to the South African Police Service
(‘SAPS’) to assist with the further prosecuting of those responsible for the fraud.

[11] It is the Commission’s contention that it is not the body which should
conduct the criminal investigations, arrest and prosecution but that those are
functions of the SAPS and the prosecuting authority. I am in agreement with
this contention. The Commission identified the possible perpetrators of the
fraud and referred the evidence to the SAPS for further action.

[12] The applicant complained that the Commission ‘has done nothing to fully
uncover the extent of their perpetrations, nor to bring to answer those that have
already been identified’. This contention is wholly incorrect and there is no merit
in the allegation and indeed contradicts the applicant’s own version. In
paragraph 18 of his founding affidavit he averred that most of the perpetrators
of the fraud have indeed become known. In my view, the Commission complied
with paragraph 2 of the order of this Court, and so too, with paragraph (a) of the
order of the Constitutional Court, remitted to this Court for consideration.

[13] The Commission did investigate the fraudulent registrations, identified
the perpetrators of the fraud and took action by removing the names of
fraudulently registered voters from the voters’ roll, and as I have said, complied
with paragraph 2 of the order of this Court.

[14] It remains to consider the further issue referred to this Court for
consideration, namely paragraph (b) of the order of the Constitutional Court
which is whether any sanctions or penalties, as prescribed by law, should be
imposed. It bears noting that the consideration of paragraph (b) of the order of
the Constitutional Court, in my view, is dependant upon a finding of this Court
in respect of paragraph (a) of the order of the Constitutional Court.  As I have
already indicated the alleged perpetrators have been identified and the matter
is in the hands of the police for investigation.  The legal process has not run its
full course. It may well be that the alleged perpetrators of the fraud, if convicted,
should be visited with appropriate punishment and sanctions.

[15] Common law penalties for fraud or penalties for the contravention of the
Electoral Act, the Electoral Commission Act or the Municipal Electoral Act will
depend on criminal proceedings that may follow upon the information which
was supplied to the SAPS and a conviction of any person of such offence or
offences. In the view which I take in respect of paragraph (a) of the order of the
Constitutional Court and in the light of the steps taken by the Commission, the
need to consider sanctions and penalties has not arisen.

[16] The penalties or sanctions provided for in s 96 of the Electoral Act and s
78 of the Municipal Electoral Act may be imposed by a court as determined by
this Court (s 20(4)(b) of the Electoral Commission Act) to hear matters, should
the necessary facts present itself and are not for this Court to impose.

[17] In the result the Commission complied with paragraph 2 of the order
made by this Court on 7 May 2013. Similarly, the issues referred to this Court
by the Constitutional Court have been satisfactorily dealt with by the
Commission. The contention to the contrary advanced by the applicant is
without merit and falls to be rejected.

[18]  Accordingly, the following order is made:

The Electoral Commission has complied with paragraph 2 of the order
made by this Court on 7 May 2013.

WEPENER J

JUDGE OF THE ELECTORAL

COURT

Date: 6 December 2013