Kortman and Another v Electoral Commission of South Africa and Others (009/21 EC) [2022] ZAEC 3 (21 February 2022)

Kortman and Another v Electoral Commission of South Africa and Others (009/21 EC) [2022] ZAEC 3 (21 February 2022)

The court found that the objective and uncontroverted facts established a chaotic and dangerous environment at the Nkosiyakhe voting station, including intimidation, unlawful campaigning, and burning of tyres. These circumstances were not conducive to a free and fair election, as required by the Constitution and the Municipal Electoral Act. The Commission failed to adequately address or dispute the material allegations, and the ANC respondents did not answer the serious accusations. The court held that even a single act of intimidation undermines the integrity of the electoral process in a constitutional democracy. The irregularities were material to the election result, given the narrow...

Citation
[2022] ZAEC 3
Parties
Applicant: Martha Ntombekhaya Kortman; Applicant: The Community of Tarkastad; Respondent: Electoral Commission of South Africa; Respondent: Mr Msimelelo Mabuto N.O.; Respondent: Mr Xola Mtati; Respondent: Ms Nomathamsanqa Mtati N.O.; Respondent: South African Police Service; Respondent: Tarkastad Branch of the African National Congress
Court
Electoral Court
Jurisdiction
South Africa
Judgment Date
21 February 2022
Case Number
009/21 EC
Procedural Posture
Review Application / Appeal Against IEC Decision Under Section 65(9) of the Local Government: Municipal Electoral Act
Outcome
Appeal upheld; by-election ordered in ward 33, Tarkastad.
Judges
Mbha JA, Shongwe AJ, Ms Pather
Legal Topics
Municipal Elections, Free and Fair Elections, Electoral Code of Conduct, Section 65 Objection, Intimidation of Voters
Administrative Law Constitutional Law Municipal Elections Free and Fair Elections Electoral Code of Conduct Section 65 Objection Intimidation of Voters

Case Brief

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Parties

Martha Ntombekhaya Kortman

Applicant

The Community of Tarkastad

Applicant

Electoral Commission of South Africa

Respondent

Mr Msimelelo Mabuto N.O.

Respondent

Mr Xola Mtati

Respondent

Ms Nomathamsanqa Mtati N.O.

Respondent

South African Police Service

Respondent

Tarkastad Branch of the African National Congress

Respondent

Procedural Posture

Review Application / Appeal Against IEC Decision Under Section 65(9) of the Local Government: Municipal Electoral Act

Legal Issues

  1. 1 Whether the conduct at Nkosiyakhe voting station rendered the election in ward 33 not free and fair.
  2. 2 Whether the Electoral Commission's dismissal of the objection was justified on the facts.
  3. 3 Whether the irregularities materially affected the election result.

Ratio Decidendi

The court found that the objective and uncontroverted facts established a chaotic and dangerous environment at the Nkosiyakhe voting station, including intimidation, unlawful campaigning, and burning of tyres. These circumstances were not conducive to a free and fair election, as required by the Constitution and the Municipal Electoral Act. The Commission failed to adequately address or dispute the material allegations, and the ANC respondents did not answer the serious accusations. The court held that even a single act of intimidation undermines the integrity of the electoral process in a constitutional democracy. The irregularities were material to the election result, given the narrow...

Court Disposition

Appeal upheld; by-election ordered in ward 33, Tarkastad.

Orders

  • The appeal is upheld.
  • The Electoral Commission of South Africa is ordered to hold a by-election in ward 33, Tarkastad, within 60 days from the date of this order.