ConCourt gives IEC 18 months to fix voters' roll

14 June 2016

Johannesburg - The Constitutional Court has given the Electoral Commission of SA (IEC) 18 months to fix the unlawful defects on the voters' roll.

Earlier on Tuesday, Chief Justice Mogoeng Mogoeng said the voters’ roll, as it stood, was "inconsistent with the rule of law".

"The Electoral Commission’s failure to record all available voters’ addresses on the national common voters’ roll is inconsistent with... the Constitution and invalid," he said.

Despite this, the court ruled that the August 3 local government elections should go ahead.

Mogoeng gave the IEC 18 months to fix the defects and obtain the outstanding addresses of millions of registered voters.

These had to be up-to-date before June 2018.

This order, however, did not include by-elections. For by-elections, the IEC needed to ensure that it had all the voters' addresses on the roll.

The case stemmed from a November 2015 Constitutional Court ruling that that the 2013 Tlokwe by-elections in the North West were not free and fair.

The African National Congress had won all the contested wards except one.

Objections lodged

The independent candidates included former ANC councillors expelled in July 2013 for participating in removing an ANC mayor.

Before the by-elections, the candidates had lodged objections with the IEC over voter registrations in their respective wards.

In six wards, the applicants complained of delays in receiving the segments of the national voters’ roll to be used for the by-elections.

These segments also did not include the residential addresses for any voters.

The candidates approached the Electoral Court for an order that the by-elections be postponed, but the court was unable to convene to hear the application.

The by-elections went ahead and six of the candidates lost.

Following the by-elections, the IEC conducted its own investigation into the allegation that voters not entitled to register in these wards had been registered, and that their participation had affected the by-election results.

It found that 1 040 people had been incorrectly registered on the segments of the voters' roll for the affected voting districts.

Urgent application

Following these revelations, the Constitutional Court set the by-election results aside. These were to be re-contested in February this year, with all new voters required to provide details of their address or sufficient details of where they lived in order for them to be placed in a voting district.

The Tlokwe by-elections, however, were halted just a day before they were to take place.

This was after independent candidates examined the voters’ roll and discovered that over 4 000 voters’ addresses were still outstanding. They challenged the validity of the voters’ roll with the Electoral Court and were successful in their bid.

In response, the IEC launched an urgent application with the Constitutional Court in April.

It argued that the Electoral Court’s interpretation of the November 2015 judgment was wrong, and that it was only obliged to furnish voters’ addresses which it had in its possession.

The commission said that, before 2003, it was not required to keep addresses of voters and it highlighted that the lack of a voters’ address did not make the voting roll irregular.

The commission revealed that around eight million dwellings did not have an address and many of these did not have a tar road running next to them.

Last month, Parliament was told that the IEC was without the proper addresses for up to 46% of the more than 26 million people registered to vote in the August elections.

Had the Constitutional Court ruled otherwise, this would have resulted in millions of registered voters being disqualified from casting their votes because of their outstanding addresses.

Ruling suspended till 2018

The IEC, however, told the Constitutional Court that when it interpreted the ruling, it did not believe that this extended to the August 2016 local government elections.

Mogoeng ruled that the IEC had erred in its interpretation of the ruling, adding that this interpretation "lacks merit".

The majority of Constitutional Court judges decided that the IEC had failed in its bid to have elections continue with the voters’ roll in its current state (without the addresses). However, that decision was suspended until June 30, 2018.

Tlokwe, however, was excluded from this ruling and the IEC was ordered to ensure that the addresses of all registered voters in Tlokwe appeared on the roll before the August elections.

"The electoral commission is, except for the Tlokwe local municipality, not required to record all the available addresses of voters on voters’ roll for the purpose of the August 2016 local government elections," Mogoeng said.

Meanwhile, the IEC was expected to report back to the court at six-monthly intervals on its progress.

The commission would also need to explain the steps it had taken and would be taking to obtain outstanding addresses.

This article first appeared on News24, see here.