Xolile Kham and Others and Electoral Commission

30 November 2015

The Electoral Commission has noted the judgment of the Constitutional Court in the matter between Xolile David Kham and Others versus Electoral Commission and Another.

The Electoral Commission commits itself to implementing the orders of the Court without delay and stands ready to hold fresh by-elections in the affected wards (wards 1, 4, 11, 12, 13, 18 and 20) in Tlokwe as soon as possible. The Commission will engage with all stakeholders to begin the process in terms of Section 25 of the Local Government: Municipal Structures Act 117 of 1998.

In addressing some of the critical issues that have arisen in relation to this case, the Electoral Commission had already taken and implemented several policy initiatives amongst others:

- to address political parties and candidates in respect of their responsibility to ensure that they adhere to the Code of Conduct and thus refrain from practices that violate provisions of the Electoral Act  and the Municipal Electoral Act;

- to develop and disseminate materials to educate the public about the serious consequences of committing electoral fraud such as in providing false information in order to register in a voting district where you are not ordinarily resident;

- to capture address details in advance of the proclamation date of an election to enable the candidates and political parties to object to persons that may not qualify to register in the voting district where they intend to register and vote.

The Electoral Commission has traditionally accepted the address details as provided by voters without requiring proof of residence. The Commission welcomes the clarity which the Constitutional Court has provided in the ruling that the Electoral Commission “is obliged to obtain sufficient particularity of the voter’s address to enable it to ensure the voter is at the time of registration ordinarily resident in that voting district”.

The Commission recently met and determined that all certified voters’ rolls for elections provided to contestants must in future contain address details where available as per the requirements of the legislation.

The Commission is also considering further measures governing elections to further reduce opportunities for irregular and fraudulent voting. These include possibly closing the voters’ roll for a ward immediately when a vacancy arises.

The Electoral Commission acknowledges that the responsibility for creating the conditions for free and fair elections is shared by all key stakeholders including the Electoral Commission, political parties, independent candidates, civil society, observers and voters.

Earlier this year the Commission hosted a summit with represented political parties and a number of international delegates to explore ways of enhancing the conditions conducive to free and fair elections. This process is on-going.

The Commission calls upon all stakeholders to work together to ensure the legitimacy of all elections. 

Issued by Kate Bapela, Electoral Commission, 30 November 2015