African Independent Congress v The Electoral Commission and Others

On 30 September 2015, by-elections were held in Ward 12 of Matatiel Local Municipality, contested by the African Independent Congress (AIC) and the African National Congress (ANC). The voting district in question (No. 11781042) comprised 960 registered voters at Lerato Junior Secondary School. The ANC candidate obtained 400 votes and the AIC obtained 70 votes, with an overall margin of victory of 256 votes in favour of the ANC. The AIC lodged objections alleging irregularities: (1) the ballot box was obscured from view for about 30 minutes; (2) the Presiding Officer closed the voting station for a lunch break between 12H55 and 13H10, requiring all party agents and SAPS officials to leave, without Commission authorization; (3) before lunch 166 votes had allegedly been cast, but an hour after lunch 320 votes were recorded despite only about 50 people observed voting after lunch. The Electoral Commission investigated and found that while irregularities occurred, the zip-zap scanner data showed 358 votes were cast before lunch (not 166 as alleged), and that even if 154 votes were disputed, this would not materially affect the outcome given the 256-vote margin of victory.

• Whether the Electoral Commission's decision to reject the AIC's objection to the by-election results was valid
• Whether the alleged irregularities in the conduct of the by-election materially affected the overall outcome of the declared results as contemplated in Section 55 of the Local Government Municipal Electoral Act 27 of 2000
• Whether closure of the voting station during prescribed voting hours without Commission authorization constituted a material irregularity
• The proper test for determining whether irregularities in an electoral process are material or merely inconsequential

The appeal was dismissed with no order as to costs.

Electoral irregularities, even if they constitute breaches of peremptory statutory provisions, will not invalidate election results unless the irregularities materially affected the overall outcome of the declared results. The materiality test requires assessment of whether, despite the existence of irregularities, the final outcome would likely remain the same. An irregularity is inconsequential when, on a hindsight assessment of the process, the successful candidate would likely still have been successful despite the presence of the irregularity. The onus rests on the objecting party to prove on a balance of probabilities that irregularities materially affected the election outcome. Public interest dictates that an electoral process should not be invalidated for minor inconsequential flaws, as a fair process does not demand perfection.

The Court expressed concern about the closure of the voting station for lunch without Commission authorization and the apparent denial of objection forms to party agents, noting these as "gross irregularities" and indicating that the Commission intended to institute disciplinary proceedings against staff members responsible. The Court emphasized that while these procedural violations were serious and the Commission should ensure compliance with Section 45 of the Act, they did not rise to the level of vitiating the election results in the circumstances of this case. The Court also commented on statutory interpretation principles, citing Bhyat v Commissioner of Immigrations 1932 AD 125, Poswa v Member of the Executive Council for Economic Affairs, Environment and Tourism, Eastern Cape 2001 (3) SA 58 SCA, S v Wyneburg 1979 (3) SA 89A, and Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 SCA, to emphasize that peremptory provisions (using the word "must") require strict compliance, though the consequences of non-compliance must still be assessed in context.

This case is significant in South African electoral law for establishing the application of the "materiality test" for electoral irregularities, adopting principles from administrative law (specifically procurement law in the Allpay case). It confirms that while strict compliance with peremptory statutory provisions (such as prescribed voting hours) is required, not every irregularity will invalidate election results. The test is whether irregularities, despite their existence, would materially affect the final outcome. This introduces the concept of "inconsequential irregularities" into electoral law - irregularities that, while constituting breaches of procedure (even gross irregularities), do not warrant invalidation of results if they could not have changed the outcome. The judgment balances procedural integrity with public interest in electoral finality, preventing invalidation based on technical flaws that did not affect the democratic will as expressed in the votes. It also confirms the Electoral Court's general practice of not awarding costs in electoral disputes.