Kham and Others v Electoral Commission and Another

The applicants were unsuccessful candidates in eight by-elections held in various wards of the Tlokwe Local Municipality in 2013. They alleged that the Electoral Commission (IEC) failed to ensure that the elections were free and fair. Their complaints focused on the improper registration of voters in wards where they were not ordinarily resident, the failure by the IEC to provide candidates timeously with the correct segments of the national voters’ roll, and the omission of voters’ addresses from the roll provided. The IEC conceded that some voters were improperly registered, that voters’ roll segments were distributed late, and that addresses were not included, but contended that these irregularities did not affect the election outcomes. The Electoral Court dismissed the challenge, and the applicants appealed to the Constitutional Court.

The appeal was upheld. The order of the Electoral Court was set aside. The by-elections in ward 18 (September 2013) and wards 1, 4, 11, 12, 13 and 20 (December 2013) were declared not free and fair, their outcomes were set aside, and fresh by-elections were ordered under section 25 of the Local Government: Municipal Structures Act 117 of 1998. Declaratory relief was granted clarifying the IEC’s obligations regarding voter registration and the provision of voters’ roll segments, with these orders operating prospectively. The IEC was ordered to pay costs.

This case is a leading Constitutional Court authority on the meaning of ‘free and fair elections’ in South Africa. It affirms that electoral freeness and fairness depend on the integrity of the entire electoral process, not merely on whether irregularities affected the final vote count. The judgment provides authoritative guidance on the IEC’s constitutional and statutory duties regarding voter registration and disclosure of voters’ roll information, strengthening electoral transparency and accountability.