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Johannesburg - The Constitutional Court (ConCourt) has set aside the results of the controversial by-elections in several wards in Tlokwe, in the North West, finding that they were not free and fair.
It set aside the by-elections conducted on September 12, 2013, in ward 18 and on December 10, 2013 in wards one, four, 11, 12, 13 and 20.
"The outcome of those by-elections was set aside and fresh by-elections are to be held," the ConCourt said in a statement.
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The applicants were eight independent candidates who contested the by-elections. The African National Congress (ANC) won all the contested wards except one.
The independent candidates included former ANC councillors expelled in July 2013 for participating in removing an ANC mayor.
Delays in receiving voters’ roll
Before the elections, the candidates had lodged objections with the Electoral Commission (IEC) over voter registrations in their respective wards.
In the December by-elections in six wards, the applicants complained of delays in receiving the segments of the national voters’ roll to be used for the by-elections.
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These segments also did not include the residential addresses for any voters.
The candidates approached the Electoral Court for an order that the December by-elections be postponed, but the court was unable to convene to hear the application.
The by-elections went ahead and six of the candidates lost.
Following the by-elections, the IEC conducted its own investigation into the allegation that voters not entitled to register in these wards had been registered and their participation affected the by-election results.
"[The IEC] concluded there were a number of such registrations and some of those voters had voted, but in no case had they done so in sufficient numbers to affect the result of the elections."
Legal requirements
When the Electoral Court eventually heard the matter, the candidates said the IEC's own investigation found the by-elections had not been free and fair and they should be set aside. The IEC opposed this.
The Electoral Court rejected the candidates' claims and dismissed the application.
The candidates argued in the ConCourt the results in the wards be set aside, relying on the irregularities that emerged from the IEC’s own investigation.
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The ConCourt said it was important, and a legal requirement for the chief electoral officer when registering a voter on the voters’ roll, to register that voter in the voting district in which they ordinarily resided.
"This requirement had not been observed by the IEC. In addition, the obligation to provide all candidates with a copy of the relevant segment of the voters’ roll containing the addresses of voters in the ward with their addresses was also ignored.
"The court held the constitutional right of the independent candidates to participate in the elections was impaired as it was necessary to give full weight to the constitutional commitment to free and fair elections and its safeguard of the right to offer oneself for election to public office.
"It is essential to hold the IEC to the high standards its constitutional duties impose upon it."
The IEC was expected to brief the media on the judgment later on Monday.
