Kortman and Another v Electoral Commission of South Africa and Others

The first applicant, Ms Martha Ntombekhaya Kortman, was an independent candidate in the local government elections held on 1 November 2021 in ward 33, Enock Mgijima Local Municipality, Eastern Cape. The fourth respondent, Mrs Nomathamsanqa Mtati, contested under the ANC. Mrs Mtati won with 819 votes to Ms Kortman's 815 votes (a margin of 4 votes). Ms Kortman objected to the election results based on irregularities at Nkosiyakhe voting station, including: Mrs Mtati campaigning inside the voting station and using vulgar language in an altercation with the presiding officer; Mr Xola Mtati (Mrs Mtati's husband and ANC branch secretary) moving in and out of the voting station carrying a black plastic bag, wearing ANC regalia, canvassing voters, and accompanying voters to booths; tyres being burnt in the vicinity of the voting station; voters being turned away without voting; insufficient lighting creating a dangerous and chaotic environment; and general conditions not conducive to free and fair elections. The Electoral Commission investigated and dismissed the objection, finding it lacked merit and was not material to the election results. Ms Kortman appealed to the Electoral Court.

• Whether the irregularities and unlawful conduct at Nkosiyakhe voting station were material to the election results
• Whether the elections in ward 33 were free and fair as required by section 190 of the Constitution
• Whether section 65(1) of the Local Government: Municipal Electoral Act 27 of 2000 was breached by unlawful conduct including intimidation, interference with voters, and obstruction at the voting station
• Whether the Electoral Commission's decision to dismiss the objection was correct
• Whether the applicant had locus standi and sufficient evidence to support the objection

1. The appeal is upheld. 2. The Electoral Commission of South Africa is ordered to hold a by-election in ward 33, Tarkastad, by not later than 60 days from the date of this order. 3. There is no order as to costs.

Section 65(1) of the Local Government: Municipal Electoral Act 27 of 2000 prohibits unlawful conduct at or in a voting station that amounts to unlawful interference with, influencing, intimidating or obstructing voters or prospective voters. Where various acts of intimidation, unlawful conduct, and chaotic and dangerous conditions exist at or around a voting station that render the electoral environment not conducive to free and fair voting, such circumstances are material to the election results even if they do not demonstrably affect the mathematical tally of votes. Elections conducted in such circumstances do not meet the constitutional requirement under section 190 of the Constitution that elections must be free and fair, and a by-election must be ordered. The test is not merely whether irregularities would mathematically reverse election results, but whether the objective circumstances at the voting station were conducive to free and fair elections.

The Court observed that if it were to err in its conclusion, it must err on the side of justice. The Court noted that in a young democracy like South Africa, even one instance of voter intimidation is one too many. The Court commented that each case must be considered on its own merits and facts, acknowledging the principle from Pitso v Electoral Commission [2001] 3 All SA 607a regarding irregularities affecting vote tallies, but distinguishing the present case on its facts. The Court noted that the failure of Mr and Mrs Mtati to file answers to the damning allegations made against them led to the conclusion that the allegations were true. The Court observed that the Commission's decision should be viewed as at the time it was taken and not ex post facto, but added that the uncontroverted objective factual situation cannot be ignored.

This case reinforces the Electoral Court's robust approach to ensuring free and fair elections as mandated by section 190 of the Constitution. It demonstrates that the Court will not tolerate intimidation, unlawful conduct, or chaotic conditions at voting stations, even where the margin of victory is small. The judgment emphasizes that in a young democracy like South Africa, even one instance of voter intimidation is unacceptable. It confirms that irregularities need not necessarily affect the mathematical tally of votes to be material - the overall conditions and atmosphere at a voting station that prevent free and fair participation can render an election invalid. The case also illustrates the Electoral Court's willingness to overturn Electoral Commission decisions where objective facts demonstrate that constitutional requirements for free and fair elections were not met, and that courts should err on the side of justice in electoral disputes.