Constitutional Court faces tough decision over Tlokwe IEC irregularities

2015-09-13 06:24
(File: Sapa)

(File: Sapa)

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The Constitutional Court on Thursday heard the case of alleged vote rigging against the IEC in a series of by-elections held in Tlokwe in North West in 2013. 

The applicants in the case were eight independent candidates who contested a total of 11 by-elections held in Tlokwe between August and December 2013. The ruling ANC won all the contested wards except one. 

The independent candidates – among them three former ANC councillors who were expelled in July 2013 for participating in the removal of a corruption-accused ANC mayor – brought the case before the Constitutional Court as an appeal against the majority ruling of the Electoral Court earlier this year. 

They had argued before the Electoral Court that people registered to vote in wards where they did not live, and these people – allegedly bussed in the by the ANC – were allowed to vote, giving the ANC an unfair advantage. 

The IEC submitted that its internal investigation found that about 1 040 people had registered illegally, however, the irregularity was not material enough to affect the outcome of the election process. 

A full bench of three Electoral Court judges heard the case in March. Two found in favour of the IEC, and one found for the independent candidates. 

The majority judgment held that it did not have a mandate to order a forensic investigation into the voters’ roll – which had been the applicant’s main relief. The secondary relief – that the court set aside the outcome of the by-elections – was also denied on the grounds that it was dependent on the success of the main relief. 

The judges also upheld the IEC’s decision to reject the applicants’ objections and concluded that the irregularities complained of did not materially affect the outcome of the by-elections, which may justify the setting aside of the elections. 

However, the dissenting judge found that although the Electoral Court lacked the competence to order the IEC to conduct an investigation, it could set aside the elections. 

The applicants argued before the Constitutional Court that: 

1. The majority decision of the Electoral Court was incorrect and that the minority judgment was “correct in both the interpretation of the facts and the application of the law upon the facts”. 
2. The majority judgment ignored substance over form, and should have been able to set aside the outcome of the by-elections as an alternative relief even though the main relief – an independent forensic investigation into the voters’ roll – was outside the jurisdiction of the court. 
3. The IEC did not verify the addresses of people who registered to vote and, as a result, there were “large-scale irregularities in the election process”. 
4. The voters’ roll did not have addresses, which limited the independent candidates’ ability to campaign effectively. 
5. The processes set out in law in terms of challenging the outcome of electoral processes were insufficient to provide them with satisfactory relief. 

The IEC argued that: 

1. Its conduct was reasonable in the investigation of irregularity with voters’ registration. 
2. The applicants failed to proceed in terms of provided legislation when they came before the Electoral Court. 
3. The real issue was whether the will of the people in the relevant wards was expressed. 
4. The Electoral Court’s finding against the applicants on their main relief affects the alternative relief and thus the relief should accordingly have failed. 
5. There is no conduct on the part of the IEC that can be described as inconsistent with the Constitution. The IEC complied with the law by registering people who came before it in terms of the statute. 

Views expressed by the judges during the hearing included that: 

1. There was uncontested evidence that the law had been breached, regardless of extent or materiality. 
2. Registration of people where they did not reside was blatantly unlawful – people are not supposed to vote where they are not registered. 
3. Under the circumstances, the Constitutional Court would be duty-bound to find the IEC’s registration process inconsistent with the Constitution. However, this may not necessarily translate into a finding that the outcome of the election process should be set aside. 
4. The IEC’s prescribed election timetable might not have been properly followed. 
5. The voters’ roll provided to the independent candidates appears to have been defective because it did not have the addresses of the voters, even in cases where these existed. 
6. The argument that the will of the people had been expressed was often used by dictators to justify vote-rigging.

Read more on:    iec

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