Kham and Others v Electoral Commission and Another

This case arose from eight by-elections held in wards of the Tlokwe Local Municipality between August and December 2013. The applicants were unsuccessful independent candidates who challenged the outcomes. The first applicant, Mr Kham, and others were formerly ANC councillors who fell out with their party and stood as independent candidates united against corruption. They lost to ANC candidates in all contested wards. The applicants alleged electoral irregularities, including: (1) registration of voters not ordinarily resident in the wards where they registered; (2) late provision of voters' rolls to candidates (delivered on 4 December 2013 instead of 26 November 2013 for the 10 December 2013 elections); and (3) voters' rolls lacking residential addresses. The Electoral Commission's (IEC) own investigation after the by-elections revealed that of 3,832 new registrations in nine affected wards between 2000 and 2013, 1,040 involved registration of people in wards where they were not and had not been resident at the time of registration. A further 332 registrations lacked sufficient conventional addresses to determine correctness. The Electoral Court dismissed the applicants' challenge, holding they should have pursued remedies under section 15 of the Electoral Act and section 65 of the Municipal Electoral Act, and that the irregularities did not materially affect the outcomes.

• Whether the Electoral Court had jurisdiction to review the IEC's decisions relating to the by-elections
• Whether applicants were confined to remedies under section 15 of the Electoral Act and section 65 of the Municipal Electoral Act
• Whether there were electoral irregularities in the conduct of the by-elections
• Whether the by-elections were free and fair as required by the Constitution
• What constitutes a free and fair election under section 19 of the Constitution
• What relief is just and equitable where elections are found not to be free and fair
• What are the IEC's obligations regarding voter registration, particularly ensuring voters are registered in the correct voting district
• What are the IEC's obligations regarding provision of voters' rolls to candidates, including addresses

The appeal was upheld with costs, including costs of two counsel. The Electoral Court's order was set aside and replaced with: (1) a declaration that the by-elections in ward 18 (12 September 2013) and wards 1, 4, 11, 12, 13 and 20 (10 December 2013) were not free and fair; (2) the outcomes of those by-elections were set aside and fresh by-elections ordered in terms of section 25 of the Local Government: Municipal Structures Act 117 of 1998; (3) a prospective declaration that when registering voters, the IEC must obtain sufficient particularity of address to ensure the voter is ordinarily resident in that voting district; (4) a prospective declaration that in future municipal elections the IEC must provide all candidates with voters' roll segments including addresses where available, on the date of certification; and (5) costs against the IEC. The prospective declarations were to operate from the date of the order and not affect prior elections.

The binding legal principles established are: (1) The Electoral Court has broad jurisdiction under section 20(1)(a) of the Electoral Commission Act to review any decision of the IEC relating to an electoral matter, allowing reconsideration on new facts and substitution of decisions. (2) The constitutional requirement for free and fair elections is a single standard that encompasses both freedom to participate and equality of competition, assessed by whether the electoral process enabled effective participation, not solely by outcome. (3) The IEC has a statutory duty under section 8(3) of the Electoral Act to ensure voters are registered only in the voting district where they are ordinarily resident, which requires obtaining sufficient address particularity to fulfill this duty. (4) The IEC must comply with section 16(3) of the Electoral Act by providing all candidates (including independent candidates) with voters' roll segments including addresses where available, on the date of certification. (5) Material non-compliance with statutory electoral requirements demonstrates elections were not free and fair. (6) Electoral irregularities that hamper candidates' ability to participate effectively and create uncertainty about voter eligibility render elections not free and fair, regardless of whether the irregularities demonstrably affected the outcome. (7) Electoral integrity is paramount and outweighs speculation about whether correcting irregularities would have changed results. (8) Where elections are found not to be free and fair due to IEC failures, setting aside the outcome and ordering fresh elections is just and equitable relief, particularly where the statutory framework (section 25 of the Municipal Structures Act) contemplates such by-elections.

The Court made several non-binding observations: (1) While not deciding definitively, the Court suggested that even absent express statutory requirement, providing addresses on voters' rolls may be necessary for elections to be fairly conducted. (2) The Court commented on the need for strict compliance with the Rules of this Court regarding record preparation, warning that playing fast and loose with the Rules will not be tolerated. (3) The Court noted it should not be assumed that major political parties would irresponsibly boycott council proceedings to render it dysfunctional, as this would breach councillors' statutory duties. (4) The Court observed that section 15 of the Electoral Act, while providing a mechanism for objecting to voters' rolls, is structured in a way suited to well-resourced political parties but may be impractical for independent candidates and smaller parties. (5) The Court commented that there is no internationally accepted definition of "free and fair elections" and that the judgment must be made in the specific context of the South African Constitution. (6) The Court noted that a by-election is an inexact substitute for the election it replaces, as the candidates, issues, media attention, turnout and electorate may all differ. (7) The Court emphasized the historical and constitutional importance of the right to vote in South Africa, referencing the struggle for universal suffrage and the significance of the first democratic elections.

This judgment is of fundamental importance to South African electoral law and constitutional democracy. It provides authoritative guidance on: (1) the broad review jurisdiction of the Electoral Court over IEC decisions; (2) the constitutional standard for free and fair elections, emphasizing that this is assessed not only by outcome but by whether the electoral process enables effective participation; (3) the IEC's obligations regarding voter registration, specifically the duty to ensure voters are registered in the correct voting district and to obtain sufficient address information; (4) the IEC's obligation to provide voters' rolls with addresses to candidates; (5) the principle that electoral integrity trumps speculation about whether irregularities affected outcomes; and (6) appropriate remedies where elections are not free and fair. The judgment affirms the foundational constitutional value of universal adult suffrage and emphasizes that independent candidates and smaller parties are entitled to the same protections as major political parties. It holds the IEC to high standards in discharging its constitutional mandate and makes clear that material non-compliance with statutory electoral requirements supports a finding that elections were not free and fair. The case reinforces that the right to stand for office and participate in elections is as important as the right to vote, and both must be protected to ensure government based on the will of the people.