REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT HELD AT
BLOEMFONTEIN

CASE NO: 004/2013

In the matter between

SESING JOHANNES JOHNSON

FIRST APPLICANT
AARON PASELA MHLOPE

SECOND APPLICANT
JOHANNA SHONU XABA

THIRD APPLICANT
NTOMBI BEAUTY DIKUPE

FOURTH APPLICANT
DIKELEDI CATHRINE MOLEFE

FIFTH APPLICANT
VELILELE JAMES ZICINA

SIXTH APPLICANT

and

ELECTORAL COMMISSION

FIRST RESPONDENT
DISE JOHN MAKODI

SECOND RESPONDENT
MEMBER OF THE EXECUTIVE COUNCIL
FOR CO-OPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS FOR THE

NORTH WEST PROVINCE

THIRD RESPONDENT

(1)
REPORTABLE: Yes
(2)
OF INTEREST TO OTHER JUDGES: Yes
(3)
REVISED.

……………………..
………………………...
DATE

SIGNATURE

Neutral Citation: Johnson and Others v Electoral Commission and Others
(Case no 004/2013) ZAEC 2 [2013] (9 October 2013)

Summary

Election Law – Municipal by-elections – Duties of Electoral Commission –
Commission required to assist not only voters but also prospective candidates
who intend registering as candidates in elections – Official of Electoral
Commission failing to advise prospective candidates of non-compliance with
the requirements of the Local Government: Municipal Electoral Act when
candidates submitted their documents to register as such – Such conduct
caused unfair exclusion of candidates from election process – election  would
not be free and fair.

______________________________________________________________

J U D G M E N T
______________________________________________________________

WEPENER J: (MTHIYANE AP AND MOSHIDI J CONCURRING)

[1] On the 17th of September 2013 this court made an order in the
following terms:
‘1.
The 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 18 September 2013 in Wards 1, 4, 11, 12 and 20
of the Tlokwe Municipality, North West Province.
2.
The First Respondent is ordered to lodge a full investigation into the
conduct of the Second Respondent, Dise John Makodi, for the period
between 8 August 2013 and 27 August 2013 pertaining to the
registration of the Applicants as candidates for the municipal by-
elections which were due to take place on 18 September 2013.

3.
The 2nd, 3rd, 4th, 5th and 6th Applicants are allowed to register as
candidates in their respective wards in the postponed by-election.’

[2] Due to the urgency of the matter we did not give reasons for the order
which was made. We indicated that the reasons for it would be handed down
in due course. This judgment is the embodiment of those reasons.

[3] The applicants are all individuals who intended registering as
independent candidates in the municipal by-elections to be held in several
wards in the Tlokwe Municipality, North West Province.

[4] The first respondent is the 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’).

[5] The second respondent is a project co-ordinator in the employ of the
Commission who, in his official capacity, at all material times dealt with the
applicants at the Commission’s local office in Potchefstroom.

[6] The third respondent is the Member of the Executive Council for Co-
operative Governance and Traditional Affairs for the North West Province
(MEC), joined in the application in her official capacity by virtue of the powers
vested in her in terms of s 8 of the Municipal Electoral Act.

[7] The applicants sought an order directing that the holding of the
by-elections in several wards of the Tlokwe Municipality on 18 September
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 the Commission requests the MEC to postpone the voting
day, the MEC is obliged to postpone the voting day by notice as prescribed.

[8] The applicants also sought an order that they be allowed to register as
candidates in the postponed by-elections and an order directing the
Commission to investigate the conduct of the second respondent.

[9] During August 2013 it became necessary to call municipal by-elections
in the Tlokwe Municipality as a result of vacancies which occurred in several
wards of that municipality. The process adopted by the Commission pursuant
to the provisions of s 11 of the Municipal Electoral Act resulted in it issuing a
draft timetable, setting out the dates by when steps had to be taken regarding
the by-elections. According to the timetable, a notice calling the by-election
was to be given on or before 19 August 2013; the certification of the voters’
roll and making certified segments available for inspection was to occur on 22
August 2013; the cut-off date and time for submission of the nomination of
candidates was 17h00 on 26 August 2013; the cut-off date to notify a party or
independent nominees of non-compliance of outstanding documents was 27
August 2013; the cut-off date and time for parties and independent candidates

to submit outstanding ward candidate documents was 17h00 on 30 August
2013. A number of further dates, including the date when the by-elections
were to be held on 18 September 2013, are provided for.
[10] The applicants are all part of a group of persons without affiliation to
any political party who decided to contest the by-elections as independent
candidates. As such they were subject to the same rights and obligations as
candidates who were nominated by political parties in order to contest the by-
elections, save that they were, in addition, required to be nominated as
candidates by at least fifty voters registered in the ward in which each
candidate intended to contest the election.

[11] The common cause facts before this court show that the first to third
applicants, in the company of others, approached the second respondent, an
official in the employ of the Commission, on 8 August 2013. The purpose of
the visit was to ensure that they were not ‘caught off guard at the proverbial
eleventh hour due to some discrepancy or deficiency in [their] application to
be registered’ as candidates for the by-elections. One of the requirements that
a prospective candidate in a by-election should comply with is the submission
of a form, referred to as Appendix 8, which should contain particulars and
signatures of fifty voters concerning the nomination of an independent ward
candidate as enacted in s 17(2)(a) of the Municipal Electoral Act. Although
there are references to other requirements which independent candidates
should comply with, it was common cause in this court that the applicants
complied with all other requirements. It is only the issue of Appendix 8 which
is in dispute.

[12] Although it was argued, on behalf of the Commission, that this court
should apply the principles laid down in Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) and that the version of the
Commission should be accepted where there are disputes of fact and that,
accordingly, the fourth, fifth and sixth applicants did not form part of the group

of persons who visited the second respondent on 8 August 2013, this
submission, although legally sound, does not find application in this matter.

[13] All of the applicants allege that they were part of a group of persons
who visited the second respondent in his official capacity as employee of the
first respondent on 8 August 2013 in order to get their nominations in order.
There are two affidavits filed on behalf of the respondents. The first attested to
by the Chief Electoral Officer of the Commission and the second attested to
by the second respondent. The first respondent’s affidavit does not deal with
the allegations of the persons who state that they visited the second
respondent on 8 August 2013. The second respondent avers that he was
approached by 5 persons on 8 August 2013. He supplies their names as
including first, second and third applicants. The documents of the fourth to
sixth applicants were indeed in possession of the Commission. It is common
cause that the officials of the Commission looked at their documents and
rejected them as candidates. It does not explain how and where the
Commission received these documents. In the circumstances there can be no
real or genuine factual dispute regarding the submission of the documents of
these three applicants to the second respondent even if the rules of the
Plascon-Evans case should find application. By virtue of the conclusion
reached herein regarding the duties of the officials of the Commission, it is not
important whether the fourth to sixth applicants handed in their forms for
registration as candidates to the respondents on 8 August or on any other
later date. It is not in dispute that this group of applicants handed in their
forms prior to the cut-off time on 26 August 2013.

[14] The next issue raised by the Commission was that the applicants were
seeking to prevent the by-elections from continuing in all the wards where
elections were to be held the following day and not only in those wards where
the applicants were prospective candidates. This issue can be dealt with
briefly. Counsel on behalf of the applicants could advance no ground as to

why the elections in the wards that were not affected by the prospective
candidature of the applicants should not proceed as planned. Counsel argued
that it would be more expedient to postpone the elections in all the wards so
that the elections in all the wards could take place on the same day. The
argument has not basis in law and it cannot be sustained. By-elections
properly called and where there are no allegations or proof of any untoward
conduct, cannot be postponed as a matter of convenience to persons who
have no interest in the by-elections in those particular wards. The applicants,
in their replying affidavit, did not persist with the relief sought regarding wards
18 and 26. In the circumstances the relief sought regarding the postponement
of the elections in wards 18 and 26, cannot be granted. The result is that
those elections should continue to be held in accordance with the timetable as
laid down by the Commission.

[15] Counsel for the applicants also advised that the independent candidate
for ward 6 had withdrawn his candidature with the result that the by-election in
that ward should similarly continue unhindered on the planned election day.

[16] At the outset of the hearing the parties advised the court that the
Commission had mistakenly rejected the first applicant as a candidate for
ward 13. It was further agreed that the first applicant was indeed duly
nominated to contest the election in ward 13. It was also agreed between the
first applicant and the Commission that the by-election in ward 13 would not
proceed on 18 September 2013 as the Commission would request the MEC
to postpone the election in that ward in order to allow the first applicant to also
canvas voters and prepare for the election, something he was not able to do
as he was incorrectly disqualified by the Commission to be a candidate in the
election.

[17] After the launching of the application to this court, the Commission
wrote a letter to the first applicant in which it advised that it was discovered
that:
‘Due to a clerical error in the capturing of names contained in your completed
Appendix 8, an erroneous conclusion was reached that your  Appendix 8 contained
less than the 50 signatures of voters validly registered to vote in ward 13…’

It continued to offer, inter alia, the postponement of the ward 13 by-election
and said that:
‘The Commission sincerely regrets the error that occurred in respect to your
completed Appendix 8 and will file a supplementary affidavit in the Electoral Court by
tomorrow morning indicating how the error came about’.

[18] One searches in vain to find such an explanation in the affidavits which
were filed. All what is said is that the ‘Commission has discovered that a
clerical error at its local office in Potchefstroom resulted in the incorrect
capturing of the names on Appendix 8 of the first applicant’s application’.
There is a measure of disquiet that such an important matter as the
disqualification of a prospective candidate in an election can be said to be
occasioned by a clerical error without any explanation of how such clerical
error could possibly occur. This is more so if regard is had to the allegations
contained in the founding affidavit that the second respondent’s attitude
towards the independent candidates changed from helpful to hostile and that
he acted with a deliberate bias towards the independent candidates. I make
nothing of this factual dispute as it is not necessary to resolve it and it forms
the subject matter of the conduct of the second respondent which is being
investigated by the Commission. However, this issue resulted in the inclusion
of the order that the conduct of the second respondent be investigated.

[19] Counsel for the Commission advised the Court that second
respondent, who appeared to be responsible for this ‘clerical error’ has been
placed on special precautionary leave pending a full investigation by the
Commission into his conduct. This investigation is on-going and has not been

completed and the question whether there was any misconduct on behalf of
the second respondent remained unanswered at the time of the hearing of
this matter. This is a factor which we took into account in coming to the final
conclusion reached herein. If the second respondent is found to have acted in
an untoward manner it would support the applicants’ contention that he
deliberately failed to assist them. It is, however, not necessary to make a
finding whether the second respondent acted deliberately in order to
determine whether the second respondent acted to prejudice the applicants in
their quest to be nominated as candidates in the forthcoming elections.

[20] What remains to be determined is the complaint by the remaining five
applicants regarding the rejection of their nominations, with particular
reference to Appendix 8, disallowing them to contest the elections in wards 1,
4, 11, 12 and 20. The applicants who wished to contest the elections are:
ward 1 – fifth applicant, ward 4 – third applicant, ward 11 – fourth applicant
ward 12 – sixth applicant and ward 20 – second applicant. These applicants
continue to seek the relief in relation to each of the wards where they intended
registering as candidates.

[21] Before dealing with the candidature of the remaining five applicants in
the by-elections it is necessary to deal with a further point in limine raised by
counsel for the Commission. It was argued that the application should fail as a
result of the non-joinder of all the other candidates who were registered for
the elections in the relevant wards as they would have an interest in the
outcome of the application. The Commission alleged in its affidavit that such
other candidates have a ‘direct interest’ and may be able to supply ‘relevant
evidence’.

[22] I am to determine whether the rights of other candidates will be
prejudicially affected by any order of this Court. If such candidates are

properly registered as candidates they will be able to fully participate in any
by-election, albeit on a later date, as their candidacy is not sought to be
impugned in any manner. In addition it is doubtful whether any such
candidates could contribute to the resolution of the dispute before us and
supply relevant evidence as no party has alleged they were present during
any of the discussions with the second respondent. In Wholesale Provisions
Supply CC v Exim International CC 1995 (1) SA 150 (T) former Chief Justice
Mahomed, as a puisne judge, held at 158D:
‘These observations clearly show, in my view, that the rule which seeks to avoid
orders which might affect third parties in proceedings between other parties is not
simply a mechanical or technical rule which must ritualistically be applied, regardless
of the circumstances of the case.’

Brandt JA said, regarding non-joinder, in Judicial Service Commission and
Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) at para 12:
‘[12] It has by now become settled law that the joinder of a party is only required as a
matter of necessity — as opposed to a matter of convenience — if that party has a
direct and substantial interest which may be affected prejudicially by the judgment of
the court in the proceedings  concerned (see e.g. Bowring NO v Vrededorp
Properties CC and Another 2007 (5) SA 391 (SCA) para 21). The mere fact that a
party may have an interest in the outcome of the litigation does not warrant a non-
joinder plea. The right of a party to validly raise the objection that other parties should
have been joined to the proceedings, has thus been held to be a limited one (see e.g.
Burger v Rand Water Board and Another  2007 (1) SA 30 (SCA) para 7; and Andries
Charl Cilliers, Cheryl Loots and Hendrik Christoffel Nel Herbstein & Van Winsen The
Civil Practice of the High Courts of South Africa 5 ed vol 1 at 239 and the cases there
cited).’

[23] The argument of the Commission fails to take into account that the
Commission itself decided to postpone the by-election in ward 13 – there is no
explanation as to how it sees the rights of other candidates in that ward being
infringed or prejudicially affected. Such postponement of the by-election
would, in my view, rightly not be regarded as prejudicially affecting the
interests of those candidates registered to contest the election in ward 13.

[24] The dispute does not relate to the candidature of the other candidates
– it relates to the administrative action of the respondent vis-à-vis the
applicants.

[25] In my view the other candidates will not be prejudicially affected in their
right to fully participate in the by-elections should it be postponed and I find
that they are not necessary parties with the result that the point of non-joinder
falls to be dismissed.

[26] It becomes necessary to deal with the complaint of the remaining five
applicants regarding their disqualification as candidates in the by-elections
that were to be held on 18 September 2013.

[27] The Republic of South Africa (‘Republic’) is favoured with a
Constitution1 which has worldwide recognition. Chapter 9 thereof provides for
the establishment of ‘State Institutions Supporting Constitutional Democracy’.
These pillars of democracy, enacted to strengthen2 constitutional democracy
in the Republic, include the Commission3. Pursuant to s 181(2) of the
Constitution ‘these institutions are independent, and subject to the
Constitution and the law, and they must be impartial and exercise their
powers and perform their functions without fear, favour or prejudice’.

[28] Section 190 of the Constitution provides:
‘190. Functions of Electoral Commission.—
(1)   The Electoral Commission must—
(a)
manage elections of national, provincial and municipal legislative bodies in
accordance with national legislation;
(b)
ensure that those elections are free and fair; and

1 Constitution of the Republic of South Africa Act 108 of 1996
2 Section 181(1) of the Constitution
3 Section 181(1)(f) of the Constitution

(c)
declare the results of those elections within a period that must be prescribed by
national legislation and that is as short as reasonably possible.
(2)   The Electoral Commission has the additional powers and functions prescribed
by national legislation.’

[29] There are several enactments which were promulgated and which deal
with the functions and duties of the Commission. One such act is the Electoral
Commission Act which provides in section 5 for the powers, duties and
functions of Commission in the following terms:
‘5.   Powers, duties and functions of Commission
(1)
The functions of the Commission include to—
(a)
manage any election;
(b)
ensure that any election is free and fair;
(c)
promote conditions conducive to free and fair elections;
(d)
promote knowledge of sound and democratic electoral processes;
(e)
compile and maintain voters’ rolls by means of a system of registering of
eligible voters by utilising data available from government sources and
information furnished by voters;
(f)
compile and maintain a register of parties;
(g)
establish and maintain liaison and cooperation with parties;
(h)
undertake and promote research into electoral matters;
(i)
develop and promote the development of electoral expertise and technology in
all spheres of government;
(j)
continuously review electoral legislation and proposed electoral legislation, and
to make recommendations in connection therewith;
(k)
promote voter education;
(l)
promote cooperation with and between persons, institutions, governments and
administrations for the achievement of its objects;
(m) (deleted)
(n)
declare the results of elections for national, provincial and municipal legislative
bodies within seven days after such elections;
(o)
adjudicate disputes which may arise from the organisation, administration or
conducting of elections and which are of an administrative nature; and
(p)
appoint appropriate public administrations in any sphere of government to
conduct elections when necessary.

(2)   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)
establish and maintain the necessary facilities for collecting and disseminating
information regarding electoral matters;
(c)
cooperate with educational or other bodies or institutions with a view to the
provision of instruction to or the training of persons in electoral and related
matters;’

[30] It may be apposite to summarise what these functions and duties of the
Commission entail in practice in the words of a former Chief Justice4:
‘…the Constitution describe[s] two of the main functions of the Commission as being
to manage the elections at all three legislative levels, that is, national, provincial and
municipal and to ensure that those elections are free and fair. Section 5(1) of the
Commission Act details the functions of the Commission, the first being to 'manage
any election'. It is quite apparent, however, when regard is had to the other functions
listed in s 5(1)(b) - (p) that this role was never intended to be a merely supervisory or
monitoring one. The functions relate to an active, involved and detailed management
obligation over a wide terrain. The Commission must, among other things, “ensure
that any election is free and fair” and “promote conditions conducive to free and fair
elections”. In addition, it must also “continuously review electoral legislation and
proposed electoral legislation, and . . . make recommendations in connection
therewith”. The Commission also has the power to “appoint appropriate public
administrations in any sphere of government to conduct elections when necessary”.’
(My underlining).
At para 78 the former Chief Justice said:
‘[78] The establishment of the Commission and the other institutions under chapter 9
of the Constitution are a new development on the South African scene. They are a
product of the new constitutionalism and their advent inevitably has important
implications for other organs of State which must understand and recognise their
respective roles in the new constitutional arrangement. The Constitution places a
constitutional obligation on those organs of State to assist and protect the
Commission in order to ensure its independence, impartiality, dignity and
effectiveness. If this means that old legislative and policy arrangements, public
administration practices and budgetary conventions must be adjusted to be brought
in line with the new constitutional prescripts, so be it.’

[31] I am of the view that the learned Chief Justice conveyed that the duties
of the Commission do not end by mechanically implementing the letter of the
law; it is not only to act as a verifying agent insofar as strict compliance with
the legislation is concerned. Its duties include a duty to assist voters and
candidates; such assistance should not be limited to ensuring that participants
have sufficient knowledge of the electoral process; it should promote a culture
of helpfulness to all involved in elections; it should display willingness to assist
those members of the public who wish to participate in elections – such
assistance not being restricted to voters alone but also to candidates.

4 Langa CJ in New National Party of South Africa v Government of the Republic of South
Africa 1999 (3) SA 191 (CC) at para 76

[32] After setting out the value of the universal adult suffrage, O’Regan J
said in African Christian Democratic Party5 at para 23:
‘These foundational values require a court of law, and the Electoral Commission,
when interpreting provisions in electoral statutes to seek to promote enfranchisement
rather than disenfranchisement and participation rather than exclusion. The exercise,
however, remains one of interpretation.’

[33] It is against this background that the complaint in this matter has to be
approached.

[34] The applicants alleged that when they first approached the second
respondent they found him to be helpful and willing to assist as one would
expect of officers of the Commission. The second respondent relies on these
assertions of the applicants. The second respondent states ‘this is recognised
by the applicants when they describe me in the founding affidavit as being
helpful with a willingness to assist’ and ‘to this end I have always attempted to
be of service to the communities in which the Commission performs its
functions and to assist any member of such community in a nonpartisan and
a-political manner’. He further states that ‘my intention throughout all my
interactions with the applicants was to be of assistance to them within the
boundaries required of an independent institution such as the Commission’.
During argument, counsel for the Commission, conceded that the
Commission and its officials have a duty to assist members of the public –
although the concession was initially restricted to a duty to assist candidates
by allowing them to correct the documents referred to in s 17(2A)6 of the

5 African Christian Democratic Party v Electoral Commission and Others 2006 (3) SA 305
(CC)
6 17.   Requirements for ward candidates to contest election
(2A)
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 the outstanding document

Municipal Electoral Act. It was, however, also conceded that the officials of
the Commission ‘may well have a duty’ to assist prospective candidates to get
their paperwork in order. In my view, the concession was fairly made if regard
is had to the duties and functions of the Commission as set out herein.

[35] The duty, which has become the focus of this hearing, is the duty to
assist candidates to ensure that the documents which the candidates submit
are in order so that they qualify as candidates. It became the focus point in
this matter as a result of what happened at the meeting on the 8th of August
2013 when the applicants submitted their documents to the second
respondent. I need not refer to the disputed facts. I have shown why the
officials of the first respondent have a duty to assist candidates.

[36] The undisputed evidence of the applicants was that they wished to
register as independent candidates in the election in certain of the wards.
They were aware of the timetable for the by-elections issued by the
Commission, 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’

[37] The biggest challenge facing the applicants was to identify at least 50
registered voters in their respective wards in support of their candidacy. They
required certainty that the persons whose signatures appear on Appendix 8
were indeed all correctly registered as voters in the wards where the
applicants intended contesting the by-elections.

[38] In this matter the conduct of the second respondent strengthens the
view that such a duty exists. When the applicants submitted their documents
the second respondent advised them that he would ‘check the documents
later…’ Although he denies that he undertook to advise the applicants
whether the documents were compliant or not, there can be no doubt that the
undertaking to check the documents of the applicants for compliance includes
a duty to revert to them to advise them whether such documents were indeed
in order. As it turned out, the Appendix 8 forms of the remaining five
applicants did not contain the names of 50 voters registered on the voters roll
in the wards in which each of them wished to contest the election. When the
applicants submitted the Appendix 8 forms the final voters roll was not
available but it became available on 22 August 2013. The second respondent
did not check the applicants’ documents to see whether they were compliant
with the requirements, or, if he did, he only advised the applicants that the
Appendix 8 forms were wanting for failure to contain the names of at least 50
voters registered in the respective wards. The second respondent remained
silent about the deficiencies until it was too late for the applicants to correct it.
In this manner the applicants’ nominations were rejected for non-compliance
with the requirement. However, had the second respondent made good on his
undertaking to check the documents and advised the applicants timeously of
the non-compliance as he was duty bound to do, their rejection as candidates
would not have occurred. In that duty the second respondent failed and he
caused the applicants’ attempt not to be caught ‘off guard at the proverbial
eleventh hour due to some discrepancy or deficiency’ in their applications to

be registered as candidates in the forthcoming by-election, to fail. Had the
second respondent upon receipt of the final voters roll (which was not
available when the applicants first visited the second respondent) checked the
applicants’ Appendix 8 forms, he should have advised them of the failure – as
he did after the cut-off date for the submission of nomination forms.

[39] The attitude of the Commission that the ‘Municipal Electoral Act does
not impose an obligation on the Commission to notify a candidate in
circumstances where Appendix 8, for example, has not been properly
completed’, is in conflict with its duty not to simply apply rules mechanically or
technically but to promote participation rather than exclusion.

[40] The Commission should, in my view, develop a system to verify
compliance with legislation when documents are submitted by candidates and
to assist prospective candidates to be compliant with the requirements. It
should allow candidates to submit their documents well in advance of the cut-
off dates in order to render proper assistance to them. This is no more than
what is expected of the Commission if one has regard to its overall powers,
functions and duties as set out in the Electoral Commission Act, not to
mention its Constitutional obligation, to manage the elections and to ensure
that it is free and fair.

[41] An interpretation of the duties of the Commission:
‘…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’. [participation]. ‘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.’7

[42] By interpreting the duties of the Commission which ‘facilitates the
participation in elections as being more consistent with our constitutional
values’8, I conclude that the Commission failed to facilitate the participation of
the applicants in the elections. This would result in the elections not being free
and fair.

[43] Having regard to the aforegoing, I am of the view that the applicants
were severely prejudiced by the failure of the second respondent to properly
assist them to submit their documents in compliance with the requirements of
the Municipal Electoral Act. The failure to allow the applicants to enter the by-
elections as candidates would have negatively affected the free and affair
character of the elections which were to commence shortly after the hearing
of the application. This is so whether the documents were submitted on 8 or
26 August 2013. In the result the decision of the Commission not to accept
the nominations of the applicants falls to be reviewed and set aside.

[44] Counsel for the Commission argued against such a duty. It was
submitted that assistance to some candidates (and not others whose
documents may be completely in order) would be seen as partiality on the
part of the Commission. In my view, the duty to assist candidates cannot
advance a perception of partiality. In an article by Struwig, Benjamin, Roberts
and Vivier ‘A Vote of Confidence: Election Management and Public
Perceptions of Electoral Processes in South Africa’ published in the journal of
Public Administration, 46 (3), at page 1124 it is said:
‘The ability to successfully fulfil its supervisory function and to effectively respond to
diverse issues and competing concerns validates the independence and impartiality
of the [Commission].’

7 African Christian Democratic Party at para 28.
8 African Christian Democratic Party ibid.

I am in agreement with the view that Commission’s independence and
impartiality will be strengthened if it effectively responds to issues and assists
candidates to participate in elections.

[45] The matter was heard on the day before the intended elections. It was
not possible to give full reasons for the order which was issued on 17
September 2013. The order included the fact that the applicants should be
allowed to register as candidates in the postponed by-elections. That order is
obviously subject to the condition that the applicants submit Appendix 8 forms
duly signed by at least 50 registered voters in good time for the postponed by-
elections.

[46] Having regard to the aforegoing reasons the following order was issued
on an urgent basis on the evening preceding the by-election in the wards
referred to in the order:
‘1.
The Electoral Commission (First Respondent) is ordered to request, as
contemplated by Section8 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 18 September 2013 in Wards 1, 4, 11, 12 and 20
of the Tlokwe Municipality, Northwest Province.
2.
The First Respondent is ordered to lodge a full investigation into the
conduct of the Second Respondent, Dise John Makodi, for the period
between 8 August 2013 and 27 August 2013 pertaining to the
registration of the Applicants as candidates for the municipal by-
elections which were due to take place on 18 September 2013.
3.
The 2nd, 3rd, 4th, 5th and 6th Applicants are allowed to register as
candidates in their respective wards in the postponed by-election.’

WEPENER J

JUDGE OF THE

ELECTORAL COURT

Date: 9 October 2013