REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT, BLOEMFONTEIN

CASE NO:  004/22EC
Reportable / Not Reportable

In the matter between:

GAMAGARA COMMUNITY FORUM

Applicant

and

THE ELECTORAL COMMISSION
OF SOUTH AFRICA

First Respondent
FREEDOM FRONT PLUS

Second Respondent
DEMOCRATIC ALLIANCE

Third Respondent
ECONOMIC FREEDOM FIGHTERS

Fourth Respondent
AFRICAN NATIONAL CONGRESS

Fifth Respondent

Neutral Citation: Gamagara Community Forum v Te Electoral Commission and Others
(Case no 004/22 EC) [2022] ZAEC 6 (22 April 2022)

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

JUDGMENT

MS PATHER (MEMBER) (MBHA JA, MODIBA JA and SHONGWE AJ and
PROFESSOR NTLAMA-MAKHANYA (Member) concurring):

Introduction
[1] This is an application for the review and setting aside of the first
respondent's (Commission’s) decision made on 11 November 2021. In terms of
this decision, the Commission rejected the applicant's objection that was lodged
on 5 November 2021. The objection was lodged in terms of s 65 (9) of the Local
Government: Municipal Electoral Act No.27/2000 (the Electoral Act).

[2] According to annexure GCF2 to the founding affidavit, the Commission,
after having investigated the objection, decided to reject it on the basis inter alia,
that the allegations contained therein were not substantiated by evidence.

[3] The applicant is a registered political party. It took part in the 2021 Local
Government Elections (the LGE 2021) and contested Ward 3 and Ward 4 in the
Gamagara Local Municipality (GLM). It is represented in this application by
Mr Shepherd Sebestian Mines, acting in his capacity as its 'duly elected secretary
general'. Mr Mines was also the applicant's candidate in Ward 4.

[4] Only the Commission, a statutory body established by s 3 of the Electoral
Commission Act 51 of 1996 (Commission Act), opposed the application. No relief
was sought against the second to fifth respondents.

[5] The applicant sought the following relief, that:
5.1
The Court review and set aside the Commission’s decision to reject its
objection of 5 November 2021;
5.2
The LGE 2021 held on 1 November 2021 in Wards 3 and 4 of the GLM be
set aside;

5.3
The Commission be directed to hold a by-election in terms of s 25(1)(b) of
the Local Government: Municipal Structures Act No 117/1998 (the
Structures Act); and
5.4
The Commission be ordered to pay the costs of this application.

[6] In support of the application, various irregularities, nine in total, are alleged
to have taken place during the LGE 2021 in Wards 3 and 4 of the GLM. The
irregularities complained of may be summarised as follows:
6.1
Eight voters who reside and were registered to vote in Ward 3 were now
registered to vote and voted in Ward 4;
6.2
Despite an undertaking by the presiding officer of Ward 4 that the affected
voters would only be issued with two ballot papers, namely a local ballot
and a district ballot, they were issued with the third ward ballot paper for
Ward 4. In this regard, reference was made to section 7 of the Electoral
Act. The applicant also quoted ss 44(7) and 47, alleging that these
irregularities amounted to contraventions of the said sections;
6.3
The Commission’s officials refused to accept legible and valid identity
documents during the 1 November 2021 elections in Ward 3. This was a
further contravention of section 44 of the Electoral Act;
6.4
The thumb nails of some voters were not marked with the required ink;
6.5
He was informed that the names of some voters who had registered online
using the 'sms' facility, did not appear on the voters' roll;
6.6
On 1 November 2021, the presiding officer of Ward 3, Ms Ingrid the Koker,
was absent from the ward. This was in violation of s 44(2) of the Electoral
Act;
6.7
The same presiding officer, acting in contravention of ss 37(6) and (7) of
the Electoral Act, compromised her independence by posting a
congratulatory birthday message to a newly elected councillor, referring to
him as 'my Baas';
6.8
While an official of the Commission had indicated that 3 500 ballots were
received, a count of the ballots revealed a total of 3 503 of which five
questionable votes were for the applicant. Following a meeting at which
ballots were recounted, the applicant was advised that 2 500 ballots had
been allocated to Ward 4, not 3 500 as was reported earlier. After a
recount, only two of the questionable ballots were votes for the applicant

as opposed to the five initially counted. These discrepancies were said to
be extreme and alarming; and
6.9
Finally, despite the applicant’s having reported the irregularities to the
presiding office, she failed to attend thereto, claiming to have been too
busy at the time.

[7] This entire application is, in my view, fundamentally flawed in various
material respects which render it dismissable even without reference to the merits.
I consider these flaws in turn:
7.1
Although the applicant seeks an order setting aside the results in both
Ward 3 and Ward 4, the objection lodged on 5 November only relate to
Ward 4. In that objection, the complaint is phrased as follows:
'I am lodging a Section 65 Objection against the election outcome in Ward
4, Gamagara Sub-Region, JTG Region, Northern Cape.'
7.2
One of the political parties that contested the LGE 2021 in
Ward 3, namely, the South African Royal Kingdom Organisation, was not
joined as a party;
7.3
The GLM is an interested party, and as such ought to have been cited and
joined in these proceedings;
7.4
Mr Mines, according to the Commission’s records, is not listed as the
secretary general as he claims, nor is he listed as an office bearer. In any
event, the Commission’s records do not indicate that the applicant’s
secretary general is authorised to litigate on its behalf without reference to
other office bearers;
7.5
Not only is the application 'very late', the application for condonation for the
late lodging thereof is incomplete and no sufficient explanation has been
given for the lateness.

[8] The Commission has raised the applicant’s non-compliance with this
Court's Rules. In terms of Rules 5 and 6, the application ought to have been
lodged with the Court within three (3) days of the applicant being informed of the
Commission’s decision. Furthermore, in terms of s 65(9) of the Electoral Act, the
appeal to this Court should have been lodged within seven (7) days of the
Commission’s decision to reject the applicant’s objection.

[9] In this regard, although the Notice of Motion is dated 22 November 2021,
the application dated 23 February 2022, was only lodged with the Court on or after
the latter date. In regard to the application for condonation, the affidavit in support
thereof was signed on 23 November 2021 but this too, was only lodged in court
during February 2022. No explanation for the period of delay from 23 November
2021 to February 2022 has been furnished.

[10] On 1 March 2022, this Court issued directives to the parties.Despite a
reminder, the applicant has to date failed to file any replying affidavit. The Court
also reserved the right to dispose of the matter on the papers without referring it
to an oral hearing. Members of the Court have unanimously agreed that this
matter falls to be decided on the papers.
[11] The Commission has dealt extensively with the alleged irregularities raised
by the applicant. The irregularities themselves, on the face of it, are in my view
speculative, based on hearsay and suspicion, and are not substantiated by any
evidence. In any event, the Commission's averments are not challenged as no
replying affidavit was filed in this application.

[12] In terms of the Plascon Evans rule, formulated in Stellenbosch Farmers'
Winery Ltd v Stellenvale Winery (Pty) Ltd 1957(4) SA 234 C, in a case of a dispute
of facts, a final interdict or an order as sought in this case, should be granted in
motion proceedings only if the facts as stated by the respondent, together with
the admitted facts in the applicant's affidavit, justify such an order, or where it is
clear that the facts, although not formally admitted, cannot be denied and must
be regarded as admitted. It has been said that exceptions to the rule may arise
where the respondent’s allegations or denials are so far-fetched or clearly
untenable that the Court is justified in rejecting them on the papers.

[13] Therefore, applying the Plascon Evans rule, it is found that the
Commission’s submissions are neither far-fetched nor untenable. Moreover given
that the applicant has not replied to the Commission’s submissions and
averments, the order sought by the applicant falls to be dismissed.

[14] In the circumstances, an order is granted as follows:
1 The application is dismissed.

2 There is no order as to costs.

S PATHER
MEMBER
OF THE ELECTORAL COURT

26 April 2022