REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT OF SOUTH AFRICA HELD AT BLOEMFONTEIN
Case No.002/15EC
In the matter between:

AFRICAN INDEPENDENT CONGRESS

APPELLANT
And
THE ELECTORAL COMMISSION

FIRST RESPONDENT
MATATIEL  LOCAL MUNCIPALITY

SECOND RESPONDENT

AFRICAN NATIONAL CONGRESS

THIRD RESPONDENT
JIMMY THABO TSHABALALA

FOURTH RESPONDENT

Neutral Citation: African Independent Congress v The Electoral Commission and Others (Case
no 002/15EC) [2016] ZAEC 1 (8 February 2016)

JUDGMENT

MTHEMBU [MEMBER] [SHONGWE J.A. AND WEPENER J. concurring]
INTRODUCTION

[1] On 25th November 2015, this court heard both parties and reserved judgment. It
later, after deliberations, issued an order dismissing the appeal with no order as
to costs with reasons to follow. What follows are the reasons for the order.

[2] This matter comes before the Electoral Court by way of an application for leave to
appeal, lodged by the Appellant in terms of Section 20 (2) (b) of the Electoral
Commission Act, 51 of 1956 which leave was granted by the Chairperson of the
Electoral Court, against the decision taken by the first Respondent (The
Commission) rejecting the appellant’s objection.

[3] The principal issue for determination in this appeal is the validity of the first
Respondent’s decision, rejecting the objection lodged by the appellant against the
declared results of the by-elections, held at the voting district No. 11781042, in

the voting station located at Lerato Junior Secondary School on 30 September
2015.
The subsidiary issue is whether the objection lodged by the appellant against the
alleged irregularities, that such irregularities are material to the declared overall
results of the by-election as contemplated in Section 55 of the Local Government
Municipal Electoral Act, 27 of 2000 (The Act).

[4] BACKGROUND
As this case concerns a challenge to the validity of the Commission’s decision to
reject the Appellant’s objection and whether the alleged irregularities materially
affect the overall outcome of the declared results of the by – elections. It is
necessary, at the outset, to mention by way of background, a brief narrative of
certain facts and circumstances which bear on the questions to be decided in this
appeal and which precipitated the launching of this appeal.

[5] By means of a Provincial Notice No.98 of 2015; the Member of the Executive
Council responsible for Local Government, Eastern Cape (The MEC), acting in
terms of Section 25(4)  of Local Government Municipal Structures Act, 117 of 1998;
On 28 August 2015 called and set a date of 30 September 2015 for holding the
by-elections in Ward 12 at Matatiel Local Municipality.

[6] The by-election was held on 30 September 2015 and contested by 2 candidates,
one nominated by and representing the appellant and another nominated by and
representing the third respondent.

[7] One of the 6 voting districts in this ward is voting district No. 11781042, comprising
of 960 registered voters, whose voting station was located at Lerato Junior
Secondary School.

[8] Primarily relevant and challenged in this appeal are the election processes
followed, the alleged irregularities committed in the conduct and management of
the by elections and the final results of the by elections declared. The voting
processes and the alleged irregularities at this voting station form the main subject
matter of complaint in this by election. The declared results of the by election was
that the candidate nominated by and representing the third respondent (the ANC)
obtained 400 votes and the appellant obtained 70 votes.

[9] The appellant contended and motivated the objection on the basis that the by
election was irregular and stands vitiated by the following irregularities;

(i)
The ballot box used at the voting station was placed in an obscure location
where it was not visible to all in the voting station / hall for a period of
about 30minutes;
(ii)
The Presiding Officer had insisted that party agents and the SAPS officials
go for a lunch break outside the voting station between 12H55 and 13H10.
This, the appellant contended, was unusual and suspects that the Presiding
Officer and his staff members had used this opportunity to tamper with the
ballot box and ballot papers;
(iii)
Before the lunch break adjournment, 166 votes had been cast, but, no later
than an hour after returning from the lunch break adjournment 320 votes
had been cast, despite that, according to the observation of the appellant’s
, party agent, only about 50 people had cast their votes during the period
after the lunch break adjournment.

[10] Upon receipt of these objections and incompliance with the provisions of Section
65 (4) (a) of the Act, the first respondent caused an investigation to be conducted
into these complaints.

[11] As part of such an investigation, the Commission obtained statements from the
Presiding Officer and a member of the SAPS, who had been deployed at the voting
station for the sole purpose of safeguarding the elections.

According to the Commission, its investigation into the matter of complaints of
irregularities lodged by the appellant revealed the following;
(i)
As regards the complaint about placement of a ballot box in a position
where it was obscured and not visible to the party agents and all present
at the voting station;
The obscurity of the ballot box lasted for only about 30minutes and a
remedial measure was undertaken immediately after a complaint was
lodged.  The ballot box was repositioned to a place visible to the satisfaction
of the appellant and all concerned;
(ii)
As regards closing the voting station for a lunch break, the Commission
found such conduct to be highly irregular, but contended that when a
decision was taken to close the voting station for a lunch break, there was,
at that stage, no voting activity taking place at the voting station and such
decision to close the voting station was unanimously taken by all officials
conducting and managing the election process at the voting station.
The only two frontal door entrances to the voting station building structure
were locked. All the commission officials, party agents and SAPS members
were requested to and did leave the voting station during the entire lunch
break period. The photographs of the building structure submitted to the
first respondent depict that the building structure used as a voting station
does not have a back door. The only two entrance doors to the voting

station were in the front of the building structure, one used by voters as an
entrance and another as an exit point. According to the investigation, no
evidence showed that some or any of the votes were cast fraudulently
during the lunch break adjournment.

[12] As regards the dispute that 166 votes were cast just before closure for the lunch
break adjournment, and an hour later after opening the voting station for voting,
that 320 votes were found to have been cast, notwithstanding the appellant’s
observation that not more than about 50 people cast their votes after the lunch
break adjournment. The Commission, found, inter alia, that contrary to the
appellant’s allegations that the number of votes cast before closure of the voting
station for the lunch break was 166, the zip zap scanner data examined tell a
different story, it showed that a figure of 358 votes were cast. Identity documents
scanned with the zip zap scanner indicates 367 persons had voted, 9 of which
were found either not to be on the voter’s roll or not registered at all in the voting
district in question.

[13] According to the appellant’s objection, the total number of 154 votes were
fraudulently cast, calculating from the alleged figure of 166 votes cast before the
lunch break and 320 shortly thereafter. By subtracting 166 votes cast before the

lunch break from the total number of 320 votes cast shortly thereafter, a figure of
154 stands disputed.
This, the commission contended, was contradicted by the data extracted from the
zip zap scanner, which provides the only best, reliable and the only objective
evidence in deciding the matter.
In addition, the Commission, in its investigation found that having regard to the
fact that the overall margin of victory to this ward was 256 votes in favour of the
third respondent, 154 votes that remain disputed or allegedly fraudulently cast do
not materially affect the outcome of the declared by election results.
Logically, this means that even if the 154 allegedly  fraudulently cast votes could
either be disregarded or added to the total votes obtained by the appellant, it
would not change or alter the results of the by election.
Based on this reasoning and /or submission, the Legal Services Department of the
first respondent recommended to the Commission investigation Committee that
the objection lodged by the appellant be rejected and the appellant was advised
of the First Respondent’s rejection decision on 16 October 2015.

[14] It is perhaps prudent at this juncture to touch on the scheme of the Act relevant
to some of the irregularities and issues placed in dispute in this appeal.
Section 45 of the Act provides;

“(i) Unless the Commission determines other voting hours for an election in
general or for a particular voting station, a voting station MUST;
(a) Open for voting at 07:00; and
(b) Remain open for voting until 21:00
(ii)
If the Commission determines other voting hours for an election in general
or for a particular voting station, it must make the voting hours known in a
way that ensures sufficient publicity of those hours.” (My Emphasis)

[15] The cardinal rule of construction of statutes as STRATFORD JA held in BHYAT
vs COMMISSIONER OF IMMIGRATIONS 1932AD 125 at 129, is to
endeavour to arrive at the intention of the lawgiver from the language employed
in the enactment….in construing a provision of an Act of Parliament, the plain
meaning of its language must be adopted, unless it leads to absurdity,
inconsistency, hardship or anomaly which, from a consideration of the enactment
as whole, a court of law is satisfied that the legislature could not have intended.

[16] The effect of that formulation, according to SCHULTZ JA in POSWA vs MEMBER
OF THE EXECUTIVE COUNCIL FOR ECONOMIC AFFAIRS, ENVIRONMENT
AND TOURISM, EASTERN CAPE 2001 (3) SA58 SCA [2001] (6) BCLR545,
is that the court does not impose its notion of what is absurd on the legislature’s
judgment, as to what is fitting, but uses absurdity as a means of deciding what

the legislature could not have intended and therefore did not intend, thus arriving
at what it did actually intend.

[17] TROLLIP JA in S vs WYNEBURG 1979 (3) SA 89A at 98D – G, remarked as
follows;
‘I think the starting point… is to emphasise the general well known principle that,
if possible, a statutory provision must be construed in such a way that effect is
given to every word or phrase in it: or putting the same principle negatively, which
is more appropriate here; a statute ought to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void or
insignificant…’

[18] Recently, in Natal Joint Municipal Pension Fund vs Endumeni Municipality
2012 (4) SA 593 SCA Para 18, the SCA, after an in depth analysis of the
authorities relating to the interpretation of documents stated;
‘...Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument….having regard to
the context provided by reading the particular provision or provisions in the light
of the document as a whole and the circumstances attendant upon its coming into
existence….consideration must be given to the language used in the light of the
rules of grammar and syntax, the context in which the provision appears, the

apparent purpose to which it is diverted and the material known to those
responsible for its production…. A sensible meaning is to be preferred to one that
leads to insensible or unbusinesslike results or undermines the apparent purpose
of the document.
The inevitable point of departure is the language of the provision itself read in
context and having regard to the purpose of the provision and the background to
the preparation and production of the document.’

[19] The voting hours prescribed by Section 45(1) (a) (b) of the Act, are PEREMPTORY,
hence the use of the word MUST in the language of the statute.
To say the provisions of this statute were not followed or violated in the conduct
and management of the by election is to state the obvious.

[20] The plain language of the statute is simply couched as follows;
‘unless the commission determines other voting hours for an election in general or
for a particular voting station, a voting station MUST;
(a) Open for voting at 7:00; and
(b) Remain open for voting until 21:00.’

[21] A breach of such a peremptory provision, clearly indicating the intention of the
legislature constitutes gross irregularity.

[22] ‘Accessing the materiality of compliance with legal requirements in our
administrative law is an exercise unencumbered by excessive formality. Formal
distinctions were drawn between “mandatory” or “peremptory” provision and
“directory” ones on the other, the former needing strict compliance on pain of
non validity and the latter only substantial compliance or even non compliance.
The strict mechanical approach has been discarded’ [own emphasis].
[23] This, in my respectful view, is not an inconsequential irregularity merely because
its impact does not materially change, alter or affect the declared results of the by
election. A proper determination of the voting hours in an election is an important
component in the conduct and management of the whole election process because
voters, the public and parties have their own daily livelihood commitments and
have to be well informed of the date, place and most importantly time for voting.
In ALLPAY CONSOLIDATED INVESTMENT HOLDINGS [PTY] LTD and
OTHERS vs CHIEF EXECUTIVE OFFICER, SOUTH AFRICAN SOCIAL
SECURITY AGENCY, AND OTHERS 2014 (1) SA 604 (CC) F, the Court held;
‘A fair process does not demand perfection and not every flaw is fatal. Public
interest dictates that a [procurement] process should not be invalidated for minor
inconsequential flaws.’

[24] In ALLPAY the SCA dealt with procurement irregularities and the dispute turned
on whether the award of a tender by SASSA to Catch Master Services [PTY]
LTD for the countrywide payment of social grants to beneficiaries was
constitutionally valid.

[25] As is the position in casu, ALLPAY relied on a number of alleged irregularities in
the tender process. The SCA, in the end found that there were no unlawful
irregularities, but also commented in general terms on the proper approach to be
followed in the determination of matters of this kind.

[26] The SCA suggested that initially, it is necessary to examine the following;
(i)
The alleged irregularities in the procurement process;
(ii)
The proper legal approach to the existence and legal effect of proven
irregularities; and
(iii)
Application of this approach to the facts
Although the SCA eventually decided the matter on the grounds that there
were no unlawful irregularities in the procurement process, but, ALLPAY AND
CORRUPTION IN WATCH contended that, ‘certain passages in its judgment

lend themselves to an interpretation that impermissibly endorses a relaxed
approach to procedural requirements of public requirement tenders.’

[27] Dealing with irregularities, the Constitutional Court emphasized that, ‘public
interest dictates that a procurement process should not be invalidated for minor
inconsequential flaws.’

[28] ‘There will be few cases of any moment in which flaws in the process of public
procurement cannot be found; particularly where it is scrutinized intensely with
the objective of doing so. But, a fair process does not demand perfection and not
every flaw is fatal.
It was submitted that a process of procurement has a value in itself which must
lead to invalidity if the process is flawed irrespective of whether the flaw has
consequences. It would be gravely prejudicial to the public interest, if the law was
to invalidate public contracts for inconsequential irregularities.’

[29] The introduction in the procurement process and similarly also in the election
process of what the SCA describes as, “inconsequential irregularities”, suggest that
some irregularities are of less impact than others in the overall results or outcome

of the process and that some irregularities are of no impact at all to the overall
outcome or results of the elections/procurement.

[30] The Court held that in spite of the alleged inconsequential irregularities that fact
point to the inescapable conclusion that SASSA considered the technical solution
offered by CASH MASTER to be materially superior to that of ALLPAY according to
key criterion for proposals.

[31] ALLPAY argued that the SCA’s analysis was flawed. On the approach of the SCA
an inconsequential irregularity is an irregularity which, despite its existence, would
not affect the final outcome of the award. On this approach an irregularity is
inconsequential when, on a hindsight assessment of the process, the successful
bidder or [candidate] in an election process; would likely still have been successful
despite the presence of the irregularity.

[32] This focus on an “inconsequential irregularity presents a different enquiry from the
one commonly used, where the Courts only look at immaterial irregularity”. The
SCA rejected some irregularity on the basis that the requirements did not have the
force of law and that, consequently, legal invalidity did not flow from non-
compliance.

[33] The irregularities submitted by the appellant and on which he relies for his
objections need to be subjected to this materiality test, pronounced in the ALLPAY,
to determine or establish whether despite their existence, these irregularities
would affect or not affect the outcome of the award or the by election results.

[34] The 3 irregularities submitted by the appellant and on which the appellant relies
for its objection, measured on this test, clearly become inconsequential
irregularities which, despite their existence, would not affect the final outcome of
the declared by election results.

[35] On the approach suggested by the SCA in determining matters of this kind it is
necessary to determine the materiality of the irregularity submitted, to establish
whether it would likely change or alter the outcome of the declared by election
results.

[36] It appears disturbing that the voting station closed for a lunch break between
12H55 and 13H10, without any determination by the Commission on that aspect.
In the Electoral Commission’s Appeal Record it appears that the application letter
addressed to the Commission, seeking authority to close the voting station at 7pm

was delivered to it so late that the Commission could not convene a meeting to
authorize closure of the voting station at 7pm, yet, the voting station closed at
7pm without an authorization from the Commission so to close. To say that the
provisions of Section 45 of the Act, were violated by the first respondent is to state
the obvious.

[37] A party agent of the appellant demanded from the presiding officer an objection
form to record an objection during the voting process. The presiding officer
responded by denying that he had one, and later filed an affidavit denying, not
only this occurrence, but also that he ever said he did not have the objection form.
But at page 67 of the Commission’s Appeal Record, the presiding officer is
requested to enlist all the election material supplied to him for this voting station.
The presiding officer enlisted that he was not supplied with an objection form in
the election material supplied to him by the Commission. It is either the presiding
officer did not have the objection forms in the election material supplied by the
Commission to him for the voting station,  or was not telling the truth in his affidavit
when he said he did have the objection form.

[38] The commission considered that these are gross irregularities and indicated its
intention to institute disciplinary proceedings against members of its staff found to
have committed any of these irregularities.

COSTS
[39] The appellant prayed for an Order for costs against the respondents. The first
respondents also prayed for dismissal of the application.
The question of costs has already been settled in this Court. As a general rule, this
court does not make costs orders.
There appears to be no compelling grounds submitted, to compel a deviation from
this general rule regarding costs in this matter.
I therefore do not propose to make an order in this regard.

CONCLUSION
[40] On a consideration of the factors relevant to this appeal, the evidence submitted
on affidavit, parties’ representations and submissions made on behalf of all the
parties, I am inclined to the view that the appellant has failed to show on a balance
of probability that all the irregularities allegedly committed in the conduct and
management of the by – election materially affected the overall outcome / results
of the by election.
This, therefore, means that the application falls to be dismissed.
In the result the following order shall issue;
(i)
The appeal is dismissed;

(ii)
No order as to costs.
________________________________
M.M. MTHEMBU
MEMBER OF THE ELECTORAL
COURT
CONCURRED:
SHONGWE JA
WEPENER J
08 February 2016