Pitso v Electoral Commission (1/2001) [2001] ZAEC 2; [2001] 3 All SA 607 (Elect Ct) (6 April 2001)
- Citation
- [2001] ZAEC 2
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Electoral Court
- Panel
- Smalberger, Tshabalala, Van der Walt, Pillay, Masipa
- Case number
- 1/2001
More details
- Court
- Electoral Court
- Panel
- Smalberger, Tshabalala, Van der Walt, Pillay, Masipa
- Case number
- 1/2001
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the appellant's objections, even if accepted, were not material to the declared result of the election in Ward 3. The alleged irregularities either did not affect the overall vote tally or were not substantiated with sufficient evidence to show they could have altered the outcome. The appellant failed to present the full facts, as his complaints related only to one of two voting stations, and the numbers demonstrated that he could not have won even if all spoilt ballots were counted in his favour. The court also held that the Electoral Commission should provide reasons for its decisions on objections to ensure procedural fairness, as required by section 33(1) of the Constitution. However, in this case, no grounds existed to interfere with the Commission's decision, and the appeal was dismissed.
Court disposition
Appeal dismissed.
Orders
- The appeal is dismissed.
- No order as to costs is made.
02
Material facts
Parties
P M Pitso
AppellantElectoral Commission
RespondentAmounts and remedies
- Votes for Successful Candidate (ward 3): ZAR 797
- Votes for Appellant (ward 3): ZAR 623
- Spoilt Ballot Papers (ward 3): ZAR 63
03
Procedural history
Posture
Leave to Appeal / Appeal From Rejection of Election Objection by Electoral Commission
04
Questions and positions
Legal issues
- 01
Whether the alleged irregularities in the conduct of the municipal election were material to the declared result.
- 02
Whether the Electoral Commission was required to provide reasons for rejecting the appellant's objection under section 65 of the Act.
- 03
Whether the procedural fairness requirements of section 33(1) of the Constitution were met by the Commission.
Party arguments
- Applicant
- The appellant argued that irregularities occurred at a voting station during the municipal election, including ANC members canvassing for votes near the station, display of ANC posters within prohibited distances, a broken ballot box seal, and discrepancies in the number of votes and spoilt ballot papers. He contended these irregularities were material to the declared result and warranted intervention.
- Respondent
- The respondent maintained that the alleged irregularities were either remedied at the time or not material to the election outcome. The Commission highlighted that the appellant's complaints related only to one of two voting stations, and even if all spoilt ballots were allocated to the appellant, he would still not have won. The Commission also argued that the procedural requirements for objections were not fully complied with by the appellant.
05
Court’s reasoning
Legal principles
- 01
Section 33(1) of the Constitution
Administrative decisions must be lawful, reasonable, and procedurally fair, and reasons should be provided for decisions affecting rights.
- 02
Local Government: Municipal Electoral Act 27 of 2000, section 65
Objections material to the declared results of an election under section 65 of the Act must relate to irregularities that could affect the tally of votes to the extent that the result may be reversed.
- 03
Local Government: Municipal Electoral Act 27 of 2000, section 65(4)-(5)
The Commission must notify the objector and any other parties involved of its decision on an objection, and such decision may be appealed.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the appellant's objections, even if accepted, were not material to the declared result of the election in Ward 3. The alleged irregularities either did not affect the overall vote tally or were not substantiated with sufficient evidence to show they could have altered the outcome. The appellant failed to present the full facts, as his complaints related only to one of two voting stations, and the numbers demonstrated that he could not have won even if all spoilt ballots were counted in his favour. The court also held that the Electoral Commission should provide reasons for its decisions on objections to ensure procedural fairness, as required by section 33(1) of the Constitution. However, in this case, no grounds existed to interfere with the Commission's decision, and the appeal was dismissed.
Obiter and limits
- Objections based on irregularities such as the display of posters or canvassing near voting stations must be supported by sufficient evidence, such as affidavits from affected voters, to demonstrate material impact on the election result.
- The fairness of administrative decisions depends on the reasoning provided, and meaningful appeals require that reasons be given for disputed decisions.
Court disposition
Appeal dismissed.
- The appeal is dismissed.
- No order as to costs is made.
Source and reliance status
Electoral Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Electoral Court
Judgment
REPORTABLE
Case number: 1/2001
IN THE
ELECTORAL COURT OF SOUTH AFRICA
In the matter between:
P M
PITSO …......................................................................................................APPELLANT
and
THE
ELECTORAL COMMISSION…..........................................................
RESPONDENT
CORAM: SMALBERGER ADCJ, TSHABALALA JP, VAN DER WALT, PILLAY and MASIPA JJ
DATE OF HEARING: 26 MARCH 2001
DELIVERY DATE: 6 APRIL 2001
JUDGMENT
VAN DER WALT J:
On 5 December 2000 municipal elections were held throughout Sout Africa in accordance with the provisions of the Local Government: Municipal Electoral Act 27 of 2000("the Act").
Appellant was a candidate participating as an independent for the election as councillor in Ward 3 in the Schweizer Reneke municipal election.
Appellant was unsuccessful. Five candidates contested the election in Ward 3. The successful candidate was the candidate of the African National Congress ("the ANC"). The appellant obtained the second highest number of votes.
On 7 December 2000 the appellant lodged a formal written objection in terms of section 65 of the Act against the election result listing certain irregularities that had allegedly occurred on the day of the election at a voting station. He also alleged that there were discrepancies in the number of votes cast and the number of spoilt ballot papers. Overall the irregularities and discrepancies in the number of votes and spoilt ballot papers were alleged to be material to the declared result of the election in Ward 3.
The irregularities complained of by appellant were the following:
- that ANC members on voting day in the immediate vicinity of the voting station canvassed for votes - conduct in contravention of section 75(b) of the Act;
- that ANC posters were displayed on voting day outside the voting station and also within twenty metres of the voting station - conduct in contravention of section 72(2) of the Act.
All these alleged irregularities would have constituted contraventions of the Electoral Code of Conduct or of Part 1 of Chapter 7 of the Act and could have been dealt with in terms of section 78 of the Act.
A further irregularity alleged was that a sealed of a ballot box that had been officially sealed was subsequently found broken and the box was open.
Furthermore, there were discrepancies in the totals of the ballots cast and the number of spoilt ballot papers despite three recounts. A number of the spoilt ballot papers had not been stamped on the back with the official stamp and were therefore rejected. The appellant submits that this was due to the mistake of the officials at the voting station.
The alleged irregular conduct of ANC members had been brought to the attention of the presiding officer at the voting station who in due course took steps to remedy the situation. No further complaints were made by the appeallant in terms of section 78 of the Act.
The discrepancy in the number of votes cast and spoilt ballot papers and the open ballot box was apparently not made the subject of a written objection to the counting officer in terms of section 59 of the Act.
The objection in terms of section 65 submitted by the appellant on 7 December
2000 was duly considered by the Electoral Commission and rejected on 11 December 2000.
Leave to appeal was sought and granted by the Chairperson of the Electoral
Court.
From the submission by the Commission to this court it became apparent for the first time that there were two voting stations in Ward 3 and that the appellant's complaints related only to occurrences at one of these voting stations.
The votes in favour of the successful candidate in Ward 3 totalled 797. The appellant received 623 votes. There were 63 spoilt ballot papers. These figures appear from the certified voting results,
Even if all the spoilt ballots were to be allocated to the appellant he would still have 111 votes less than the successful ANC candidate.
By only referring in his submissions to the results of one of the two voting
stations appellant did not place the full facts before the Commission or this court. This flawed picture made it possible for the appellant to submit that Ms objection could be material to the result of the objection which, in fact, it was not.
Whilst it is apparent that the appellant cannot succeed in his appeal, it may be useful and necessary to indicate our views on certain aspects of the proceedings.
In its letter of 11 December 2000 the Commission informed the appellant that it had "considered your objection in terms of the provisions of section 65of the Local Government: Municipal Electoral Act, 2000 (Act 27 of 2000). Your objection was, however, rejected."
Only when leave to appeal to this court was sought did the Commission furnish reasons for its rejection of the appellant's objection to the secretary of this court. In terms of section 65(4) of the Act:
"The Commission must -
(a) consider the objection and decide it...
(b) immediately notify the objector and any other parties involved in the objection, of the decision."
That decision may be taken on appeal to this court in terms of section 65(5) of the Act.
We are of the view that the Commission's decision must also incorporate its
reasons, however brief, for that decision.
Justification for our view is to be found in section 33(1) of the Constitution.
''Everyone has the right to administrative action that is lawful, reasonable and procedurally fair."
The fairness of the decision of the Commission depends on the reasoning on which its decision is based.
In any event an appeal, or application for leave to appeal, can only be dealt with in a meaningful manner if reasons have been given for the disputed decision.
In his objection the appellant referred to certain alleged irregularities as aspects that were material to the declared result of the election.
As stated above all these irregularities could amount to contraventions of Part 1 of Chapter 7 of the Act, or the Electoral Code of Conduct. However, it is difficult to relate the illegal display of a poster as being material to die declared result of an election.
In my view objections material to the declared results of an election in terms of section 65 of the Act will in the overwhelming majority of cases be concerned with the irregularities in the voting procedure, the ballot papers, the number of votes cast and the number of spoilt ballot papers and the reasons why those ballot papers were rejected. In other words, any irregularity which would affect the tally of votes to the extent that an unsuccessful candidate may gain sufficient votes to reverse the election result
Should an objecctor rely on an irregularity such as the display of a poster or an result, unlawful interference with a voter's choice of candidate, then a sufficient number of affidavits of voters concerned would probably have to be filed in support of the objection to show that the declared result of the election might have been materially affected.
In the premises the allegations made in the appellant's objection have cot been shown to have been material to the declared result of the election and no ground exists for interfering with the Commission's decision. Accordingly the appeal is dismissed. No order as to costs is made.
PJ van
DER WALT
JUDGE
OF THE HIGH COURT
SMALBERGER ADCJ )Concurred
TSHABALALA JP )
PILLAY J )
MASIPA J )
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