Kham and Others v Electoral Commission and Another (006/2013) [2015] ZAGPJHC 53 (19 March 2015)

Kham and Others v Electoral Commission and Another (006/2013) [2015] ZAGPJHC 53 (19 March 2015)

The Electoral Court lacks the statutory power to grant the mandatory relief sought by the applicants, namely to order the Commission to appoint independent forensic investigators. The relevant legislation, including the Electoral Act and the Municipal Electoral Act, provides specific procedures for objections and...

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Citation
[2015] ZAGPJHC 53
Parties
Applicant: Xolile David Kham; Applicant: Johannes Sesing Johnson; Applicant: Aaron Pasela Mhlophe; Applicant: Johanna Shonu Xaba; Applicant: Ntombi Beauty Dikupe; Applicant: Dikeledi Cathrine Molefe; Applicant: Velilele James Zicina; Applicant: Khotso Ratkoane; Respondent: Electoral Commission; Respondent: Member of the Executive Council, Department of Local Government and Traditional Affairs, North West Provincial Government
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 March 2015
Case Number
006/2013
Procedural Posture
Review Application / Final Judgment After Hearing on Merits
Outcome
Application dismissed.
Judges
Moshidi, Shongwe, S Pather, M Mthembu, Wepener
Legal Topics
Electoral Irregularities, Voters Roll Objections, Free and Fair Elections, Judicial Review of Administrative Action, Materiality of Irregularities
Constitutional Law Administrative Law Electoral Irregularities Voters Roll Objections Free and Fair Elections Judicial Review of Administrative Action Materiality of Irregularities

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Parties

Xolile David Kham

Applicant

Johannes Sesing Johnson

Applicant

Aaron Pasela Mhlophe

Applicant

Johanna Shonu Xaba

Applicant

Ntombi Beauty Dikupe

Applicant

Dikeledi Cathrine Molefe

Applicant

Velilele James Zicina

Applicant

Khotso Ratkoane

Applicant

Electoral Commission

Respondent

Member of the Executive Council, Department of Local Government and Traditional Affairs, North West Provincial Government

Respondent

Procedural Posture

Review Application / Final Judgment After Hearing on Merits

Legal Issues

  1. 1 Whether the Electoral Court has the power to order an independent forensic investigation into alleged irregularities in voter registration and voting.
  2. 2 Whether the alleged irregularities in the by-elections were material enough to affect the results and justify setting aside the elections.
  3. 3 Whether the applicants exhausted internal remedies and statutory procedures for objections to the voters' roll and election results.

Ratio Decidendi

The Electoral Court lacks the statutory power to grant the mandatory relief sought by the applicants, namely to order the Commission to appoint independent forensic investigators. The relevant legislation, including the Electoral Act and the Municipal Electoral Act, provides specific procedures for objections and appeals regarding election irregularities, which the applicants failed to exhaust. The Commission's own investigation found irregularities in voter registration, but these were not material to the outcome of the by-elections. The applicants did not discharge the onus of proving that the irregularities affected the results. The principle of legality and separation of powers...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • There is no order as to costs.