Shai v The Electoral Commission of South Africa and Others

Professor Kgothatso Shai, a voter in the 2021 Local Government Elections and member of the public (not a contestant), lodged an objection with the Electoral Commission of South Africa (IEC) on 3 November 2021 regarding alleged electoral irregularities in Ward 2, Maruleng Municipality. The objection alleged discrepancies between the number of votes cast and attendance registers, incomplete or falsified physical addresses on the voters' roll, voters registered outside Ward 2's territorial jurisdiction, and forged applications for special home visit votes. The IEC, on 7 November 2021, condoned the late lodgement but dismissed the objection on the grounds that: (1) the issues raised did not give rise to an objection in terms of section 65 of the Act; (2) the alleged irregularities were not substantiated; and (3) the relief sought was not competent in law. The applicant then appealed to the Electoral Court seeking multiple forms of relief including declaring the Ward 2 results null and void, pronouncing the IEC's dismissal unfair, preventing intimidation by the ANC Ward 2 Branch Executive Committee, and ordering surrender of electoral materials to law enforcement authorities.

• Whether the applicant's objection met the requirements of section 65(1) of the Local Government: Municipal Electoral Act 27 of 2000
• Whether the alleged electoral irregularities were material to the result of the election
• Whether the objection contained sufficient particularity and substantiation as required by section 65(2)(h) of the Act
• Whether the relief sought by the applicant was competent in terms of the Act
• Whether the IEC's decision to dismiss the objection was rational and reasonable

The application was dismissed with no order as to costs.

Section 65(1) of the Local Government: Municipal Electoral Act 27 of 2000 requires that an objection must be material to the result of an election. Objections material to declared results will in the overwhelming majority of cases be concerned with irregularities in voting procedure, ballot papers, number of votes cast, and spoilt ballot papers - any irregularity which would affect the tally of votes to the extent that an unsuccessful candidate may gain sufficient votes to reverse the election results. An objection must be substantiated with supporting documents as required by section 65(2)(h) of the Act - mere bald and unsubstantiated allegations are insufficient. The objection must relate to aspects of voting or counting proceedings or alleged unlawful interference with election activities or voters as specified in section 65(1)(a) and (b). The relief sought in an electoral objection must fall within the competence of section 65(10) of the Act, which limits the Electoral Court's powers to: rejecting the appeal, amending the Commission's decision, setting aside the election, or making an appropriate order. Relief falling outside these statutory powers is incompetent.

The Court noted that the applicant was not a contestant in the 2021 Local Government Elections but had lodged the application as a voter and member of the public. The Court observed that the applicant expressly conceded in both his founding and replying affidavits that the relief sought 'may be incompetent in law'. The Court commented that the IEC had 'magnanimously elected not to oppose the late filing of the application'. The Court made observations about various forms of relief sought being 'not only incompetent but also falls outside the scope of the provisions of the Act', specifically noting that relief pronouncing IEC complicity was 'not only outside the realms of the Act, but is undefined and lacks any modicum of specificity'. The Court characterized the relief in prayer 5 as 'illogical and impractical' as it asked to render Ward 2's outcome null and void 'until its credibility is proven otherwise'.

This case clarifies the requirements for a valid objection under section 65 of the Local Government: Municipal Electoral Act 27 of 2000. It reinforces that objections must meet the materiality threshold and be properly substantiated with supporting evidence. The case demonstrates the Electoral Court's strict approach to electoral objections, requiring specificity, particularity, and substantiation rather than accepting bald allegations. It also confirms the limited scope of relief available under section 65(10) of the Act and that the Electoral Court will not entertain relief that falls outside its statutory mandate. The judgment emphasizes that objections in electoral matters must address irregularities affecting the tally of votes to the extent that results could be reversed, not merely raise general concerns about electoral legitimacy.