REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT, BLOEMFONTEIN

CASE NO:  007/22EC
Reportable

In the matter between:

SANDILE JEROME LUTHULI

First Applicant

THAMSANQA MKHIZE

Second Applicant

NICOLAS NXUMALO

Third Applicant

and

THE ELECTORAL COMMISSION
OF SOUTH AFRICA

Respondent

and

In the matter between:

THANDEKA P NDLOVU

First Applicant

SANDILE MEYIWA

Second Applicant

THABANI C MADIBE

Third Applicant

KHAYELIHLE ZUNGU

Fourth Applicant

NOTHANDO J NGIDI

Fifth Applicant

FIKILE MKHIZE

Sixth Applicant

LUNGELO W ZULU

Seventh Applicant

THAMSANQA MKHIZE

Eighth Applicant

and

THE ELECTORAL COMMISSION
OF SOUTH AFRICA

Respondent

Neutral Citation: Luthuli and Others v The Electoral Commission of South Africa and
Ndlovu and Others v The Electoral Commission of South Africa (Case 007/22EC) [2022]
ZAEC 8 (17June 2022)

Coram: MBHA JA, MODIBA J and SHONGWE AJ and PROFESSOR NTLAMA-MAKHANYA
and PROFESSOR PHOOKO (Members)

JUDGMENT

MBHA JA ( MODIBA J and SHONGWE AJ and PROFESSOR NTLAMA-
MAKHANYA and PROFESSOR PHOOKO (Members) CONCURRING):

[1] On 3 November 2021, after the holding of the 2021 Local Government
Elections (LGE 2021), four individuals who contested in eThekwini Municipality
(Ward 7), namely, Sandile Jerome Luthuli, Thamsanqa Mkhize, Nicolas Nxumalo
and Mr Ndlovu of the New Freedom Party lodged an objection with the
Independent Electoral Commission (the Commission) in terms of s 65(1) of the
Local Government: Municipal Electoral Act 27 of 2000 as amended (the Electoral
Act).

[2] The relevant part of the objection read as follows:
'At Ntshongweni Primary there was missing of ballot box number or serial number.

Due to the missing of ballot box as the ward 07 candidates . . . dispute and declare that
the election processes were not Free and Fair in this VD.

At Damini VD the ANC was campaigning on the VD openly. They told the people to vote
for ANC candidate Luthando Jali (Sjongo). And play the Radio closely to VD which is not
accepted according to the IEC policies.'
The objection specifically called for the holding of a by-election in Ward 7 as a
result of the allegation of the missing box.

[3] On 6 November 2021, the Commission sent correspondence to the
complainants stating that it had investigated and considered the s 65 objection

but had resolved to dismiss it. The basis of the dismissal was that the objection
lacked merit and that there was no evidence provided to show that the objection
would have been material to the outcome of the final result.

[4] Subsequent to the dismissal of the objection, three of the complainants,
namely, Messrs. Luthuli, Mkhize and Nxumalo, launched an application in this
Court seeking to appeal the decision of the Commission dismissing the objection
on the basis that they were not afforded an opportunity to produce evidence in
support of the objection. The complainants, who I will for convenience refer to as
the 'first applicants', sought an order setting aside the decision of the Commission
to dismiss the objection and that a by-election be held in Ward 7 as the elections,
especially in Ntshongweni and Damini VD's, were not free and fair. The first
applicants' Notice of Motion is marked 'AA2'.

[5] Another Notice of Motion has been filed in this matter under the same case
number. It bears the names of eight individuals cited as the first to the eighth
applicants. None of these individuals is part of the first applicants. Nonetheless,
they similarly appeal the decision of the IEC, dismissing their objection as
contained in the IEC's correspondence dated 6 November 2021 under the same
reference number 3080007. The relief they seek is similar to that sought by the
first applicants. I will refer to these individuals as the 'second applicants'.

[6] The second applicants have filed a host of founding affidavits and
purported supporting affidavits in which various complaints were raised, which
can be summarised as follows:
6.1
There were electricity outages at the voting districts concerned, which
affected voting;
6.2
The Voter Management Devices (VMD) were not utilised;
6.3
People were turned away and prevented from voting as their names did
not appear of the Voters' Roll;
6.4
A certain Presiding Officer (PO) acted impartially when addressing their
complaints;
6.5
A lack of MEC 7 forms;

6.6
The elections not being organised properly and procedures not being
followed; and
6.7
There were long queues at voting stations which were then closed early
and re-opened.

[7] The filing of separate and different Notices of Motion is an irregularity.
Whilst I understand that the applicants are laymen and that there could possibly
be an explanation, there is a more serious irregularity in that the bases upon which
the second applicants rely is not at all contained in the objection filed on 3
November 2021. Not only that, the second applicants were not even party to that
objection. As shown above, the objection confined itself to two issues: an alleged
missing ballot box number or serial number; and allegations that the African
National Congress (ANC) were unlawfully campaigning openly at a voting district.

[8] What one can term as 'new allegations' made by the second applicants
cannot legally be raised in this application as the 'internal process/remedies' have
not yet been exhausted before the Commission. In other words, as these new
allegations did not form part of the objection dated 3 November 2021, they may
not be raised in these proceedings and be considered as they were not part of the
objection process. Neither were they ever submitted to the Commission to date
of this application for consideration.

[9] To sum up, the applicants seek to appeal a decision of the Commission in
circumstances where:
9.1
The alleged conduct now complained of was never included in the
objection or placed before the Commission and decided upon; and
9.2
No supporting documents or evidence alluding to the alleged conduct now
complained of was included in the objection or placed before the
Commission.

[10] The Commission cannot investigate and determine an objection that was
never placed before it. Similarly, the applicants cannot appeal a decision before
this Court of the Commission that was never made in relation to an objection that

was never lodged. This entire application falls to be dismissed on this irregularity
alone.

[11] I now consider the application vis-a-vis the objection lodged by the first
applicants on 3 November 2022. Before doing so, I need to deal with the
Commission's application for condonation for the late filing of its opposing
affidavit.

[12] In terms of the directives issued by this Court on 23 May 2022, the
Commission had until Friday, 27 May 2022, to file its answering affidavit.
However, this was done on Monday, 30 May 2022. Thus the Commission, as
respondent, was effectively one court day late filing its opposing papers.

[13] The explanation given for the lateness by the deponent to the founding
affidavit, Mr Ryan Anthony Daly, is that there was a bona fide administrative error
in that the signed opposing affidavit was not returned timeously to him for filing.
Upon investigating, he discovered that the opposing affidavit was sent to him via
an incorrect email address by one Ms Mosia, an employee of the Commission.
Ms Mosia has filed a supporting affidavit in this respect.

[14] The explanation proffered for the lateness is, in my view, reasonable. More
so, it was filed a mere one day out of time. It has not been demonstrated that the
applicants have or will suffer any prejudice by the late filing of the opposing
affidavit. The application ought, in the circumstances, to be granted.

[15] The application brought by the first applicants is fatally defective. I say so
because no founding affidavit is deposed to by any of the first applicants,
notwithstanding the fact that they were the complainants or objectors who lodged
the objection on 3 November 2021.

[16] The first applicants opted instead to rely on accompanying affidavits by
community members and party agents in support of their application to set aside
the decision of the Commission dismissing their objection. However, as I have

demonstrated earlier, these affidavits have no bearing or relation whatsoever to
the objection dated 3 November 2021 that the first applicants filed.

[17] It is trite law that a petition is to be made on notice of motion together with
a founding affidavit that provides the material facts relied upon for the relief
sought. Furthermore, the onus rests on an applicant to fully and properly make
out his or her case in the founding papers.1 The first applicants' failure in this
regard is so material such as to render their application dismissable on this
ground.

[18] The application is also rendered defective by the non-joinder2 of interested
and necessary parties. Bearing in mind that the relief sought is inter alia a by-
election in Ward 7, it follows that all parties and individuals who contested in
Ward 7 on 1 November 2021 ought to have been joined and cited in these
proceedings. More so, as the second ground of the objection, contains the
allegation of unlawful conduct on the part of the ANC by allegedly openly and
wrongly campaigning within the voting station, it follows that the ANC ought to
have been served with the papers and afforded the opportunity to deal with these
accusations.

[19] In terms of s 65(1), the objector must demonstrate that the objection is
material to the outcome of the results of the election in relation to:
(a)
any aspect of the voting or counting proceedings provided for in Chapter 5 or
Chapter 6 respectively; or
(b)
alleged and 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.'

[20] In my view, the objection lodged does not satisfy the materiality test
prescribed in s 65(1). It contained no particularity or detail and only consisted of

1 Transnet Ltd v Rubenstein [2005] 3 All SA 425 (SCA); 2006 (1) SA 591 (SCA) para 28.
2 Bowring NO v Vrededorp Properties CC [2007] ZASCA 80; [2007] SCA 80 (RSA); 2007 (5) SA
391 (SCA) para 21.

vague allegations. Reference is made to a missing 'ballot box number or serial
number', but no further information is provided.

[21] There is also reference to allegations in respect of the ANC campaigning
in the voting district openly. However, no evidence is provided, and insofar as this
allegation may be true (which has been vehemently denied by the Commission),
it has not been demonstrated how this would or did affect the outcome of the
results in Ward 7.

[22] Importantly, no supporting documentation was provided to comply with the
peremptory requirements of s 65(2)(h). This section requires a list of supporting
documents to accompany the notice of objection.

[23] The applicants aver that it was agreed that they would submit whatever
necessary evidence later but that they were never afforded the opportunity to do
so. But this complaint cannot hold. The provisions of s 65(2) of the Electoral Act
are clear. An objector must comply with the provisions thereof and must lodge an
objection in the matter as prescribed. The Commission can only explore evidence
presented to it or found by it during its investigation of information and documents
provided. In this case, only scant and vague information was provided, and no
evidence to substantiate the objection was provided or found.

[24] In light of what I have found, as stated above, I am satisfied that the
Commission was correct when it dismissed the objection on the basis that it
lacked merit.

[25] In the circumstances, the following order is made:
The respondent's application for condonation of the late filing of the
opposing or answering affidavit is granted.
The entire application is dismissed.
There is no order as to costs.

B H MBHA
CHAIRPERSON
OF THE ELECTORAL COURT

17June 2022