Mhlophe and Others v Independent Electoral Commission of South Africa and Others (001/2016 EC) [2016] ZAEC 1 (10 March 2016)

Mhlophe and Others v Independent Electoral Commission of South Africa and Others (001/2016 EC) [2016] ZAEC 1 (10 March 2016)

The Electoral Court found that the certification of the voters' roll for the Tlokwe by-elections did not comply with section 16(3) of the Electoral Act and the Constitutional Court's order in Kham, as it included 4146 voters without addresses and failed to ensure accurate placement in voting districts. The Commission's argument that its obligations were prospective was rejected; the statutory and constitutional requirements applied to the February by-elections. The absence of addresses and failure to correct the roll undermined the fairness of the elections. The Court ordered the Commission to request postponement of the by-elections, set aside the certification of the voters' roll, and...

Citation
[2016] ZAEC 1
Parties
Applicant: Aaron Pasela Mhlophe; Applicant: Johanna Xaba; Applicant: John Matong Seleke; Applicant: Mamogadi Aletta Matlou; Applicant: Johannes Kgang Rabotsho; Applicant: Mamosebi Lenah Mahlatsi; Respondent: Independent Electoral Commission of South Africa; Respondent: Member of the Executive Council, Department of Local Government & Human Settlements, North West Provincial Government; Respondent: African National Congress; Respondent: Democratic Alliance; Respondent: Mr Tshepo Chempe; Respondent: Tlokwe Local Municipality
Court
Electoral Court
Jurisdiction
South Africa
Judgment Date
10 March 2016
Case Number
001/2016 EC
Procedural Posture
Urgent Application / Application for Urgent Interim Relief Before by Elections
Outcome
Application granted. The by-elections were postponed, the certification of the voters' roll was set aside, and the Commission was ordered to provide compliant rolls to candidates. No order as to costs.
Judges
Shongwe JA, Moshidi J, Wepener J, S Pather
Legal Topics
Free and Fair Elections, Voters Roll Certification, Municipal Electoral Act, Address Verification, Electoral Obligations
Constitutional Law Administrative Law Free and Fair Elections Voters Roll Certification Municipal Electoral Act Address Verification Electoral Obligations

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Parties

Aaron Pasela Mhlophe

Applicant

Johanna Xaba

Applicant

John Matong Seleke

Applicant

Mamogadi Aletta Matlou

Applicant

Johannes Kgang Rabotsho

Applicant

Mamosebi Lenah Mahlatsi

Applicant

Independent Electoral Commission of South Africa

Respondent

Member of the Executive Council, Department of Local Government & Human Settlements, North West Provincial Government

Respondent

African National Congress

Respondent

Democratic Alliance

Respondent

Mr Tshepo Chempe

Respondent

Tlokwe Local Municipality

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interim Relief Before by Elections

Legal Issues

  1. 1 Whether the certification of the voters' roll for the Tlokwe by-elections complied with statutory and constitutional requirements.
  2. 2 Whether the absence of addresses for 4146 voters rendered the by-elections not free and fair.
  3. 3 Whether the Electoral Commission was obliged to postpone the by-elections pending correction of the voters' roll.

Ratio Decidendi

The Electoral Court found that the certification of the voters' roll for the Tlokwe by-elections did not comply with section 16(3) of the Electoral Act and the Constitutional Court's order in Kham, as it included 4146 voters without addresses and failed to ensure accurate placement in voting districts. The Commission's argument that its obligations were prospective was rejected; the statutory and constitutional requirements applied to the February by-elections. The absence of addresses and failure to correct the roll undermined the fairness of the elections. The Court ordered the Commission to request postponement of the by-elections, set aside the certification of the voters' roll, and...

Court Disposition

Application granted. The by-elections were postponed, the certification of the voters' roll was set aside, and the Commission was ordered to provide compliant rolls to candidates. No order as to costs.

Orders

  • The Electoral Commission is ordered to request postponement of the by-elections in Wards 1, 4, 11, 12, 18, and 20 of Tlokwe Municipality for six weeks.
  • The certification of the voters' roll for the by-elections is set aside.