Andre Dawid Lötter v The Electoral Commission and Others

The applicant was a former ward councillor of Ward 22 of the Abaqulusi Local Municipality. In April 2013, the Electoral Court ordered a postponement of a by-election and directed the Electoral Commission to investigate allegations of fraud relating to the voters' roll of Ward 22. The Electoral Court also ordered the Commission to accept the applicant's nomination as a candidate. Following the Electoral Court's order in May 2013, the applicant sought leave to appeal to the Constitutional Court. On 2 September 2013, the Constitutional Court refused leave to appeal but remitted two questions to the Electoral Court: (a) whether the Commission adequately complied with the investigation order, particularly whether the report adequately identified the perpetrators of fraud; and (b) whether sanctions or penalties should be imposed if perpetrators became known. The Commission conducted a two-phase investigation which resulted in the removal of 1,525 voters in the first phase and 337 voters in the second phase from the Ward 22 voters' roll, and referred all evidence of fraud to the South African Police Service (SAPS).

• Whether the Electoral Commission adequately complied with the Electoral Court's order to investigate allegations of fraud in relation to the voters' roll of Ward 22
• Whether the Commission's investigation was inadequate for failing to identify perpetrators of fraud
• Whether sanctions or penalties prescribed by law should be imposed against perpetrators of electoral fraud
• What constitutes adequate compliance with a court order directing investigation of electoral fraud
• Whether the Electoral Commission or the SAPS and prosecuting authorities are responsible for criminal investigation and prosecution of electoral fraud

The Electoral Commission has complied with paragraph 2 of the order made by the Electoral Court on 7 May 2013.

The Electoral Commission fulfills its duty to investigate electoral fraud by: (1) conducting a thorough investigation that identifies patterns of fraudulent registration; (2) conducting field investigations to verify addresses and residency; (3) following procedurally fair processes, including giving notice and opportunity to make representations before removing voters from the roll (as removal constitutes administrative action affecting the constitutional right to vote); (4) identifying the alleged perpetrators of fraud; and (5) referring all evidence with full particulars to the South African Police Service for criminal investigation and potential prosecution. The Electoral Commission's investigative function is distinct from the criminal investigation, arrest and prosecution functions which belong to the SAPS and prosecuting authorities. The question of whether sanctions or penalties should be imposed is dependent upon and can only arise following proper criminal proceedings and conviction in a court designated to hear such matters under section 20(4)(b) of the Electoral Commission Act.

The Court observed that the community in Ward 22 was not homogenous and required different methods of notification (different languages, varying levels of access to media, internet, email, etc.). For notice to be meaningful, it must be provided in the way the person concerned is most likely to receive it, justifying the Commission's use of multiple notification methods. The Court also noted with apparent frustration the applicant's conduct during proceedings, including filing a 105-page affidavit attempting to widen issues beyond those remitted by the Constitutional Court, making sweeping unsubstantiated allegations, and showing little understanding or appreciation for the limited scope of matters properly before the Court despite the Judge President's attempts to assist and provide clarification.

This case establishes important principles regarding the Electoral Commission's investigative powers and duties when electoral fraud is alleged. It clarifies the division of responsibilities between the Electoral Commission and criminal justice authorities in dealing with electoral fraud. The case demonstrates the procedural requirements for removing voters from the voters' roll, emphasizing the importance of administrative fairness even when fraud is suspected, given that removal affects the constitutional right to vote. It also illustrates the Electoral Court's supervisory role over the Electoral Commission's compliance with court orders. The judgment provides guidance on what constitutes an adequate investigation into electoral fraud allegations, including electronic analysis, field investigations, procedural fairness, and referral to appropriate authorities. The case also clarifies that while the Electoral Court can order investigations and review the adequacy of such investigations, the imposition of criminal sanctions falls within the jurisdiction of other courts following proper criminal proceedings.