Court name
High Court Main Division
Case number
EC-2020/8
Case name
Electoral Commission of Namibia v SWAPO Party of Namibia and Others
Media neutral citation
[2020] NAHCMD 600
Case summary:

Statute – Electoral Act – Section 12 of Act No.

Headnote and holding:

The Electoral Commission, of its own, approached the Court to declare the taking of a poll on 25 November 2020 in respect  of  election  for local authorities of  Aroab, Koes, Stampriet and elections for member of the Hardap Regional Council in respect of the Mariental Rural constituency invalid.

Mr Mujoro, on behalf of the applicant, contended that the irregularities that transpired during the elections in the local authority areas of Koes, Aroab, Stampriet and the Mariental Rural Constituency, infringe all Namibians’ rights as provided under Article 17(2) of the Constitution, and that the errors and irregularities were fatal and have the effect of depriving the citizens of their rights to participate in political activities of their choice and thus choose political leaders to represent them and shape policies that affect their lives.

On the other hand, Mr Thomas, who deposed to the opposing affidavit on behalf of the fourth and eighth respondent, admitted the errors and irregularities occurred but contended that the Commission has not placed sufficient evidence before the Court to warrant the ‘drastic measure’ of setting aside the elections. He states that the irregularities are minor and do not affect the outcome of the elections in that the errors are not of significance as they will not change the outcome of the Regional Council Elections which is one of ‘first past the post’ as opposed to the local authority results where the winner is declared by way of proportional representation and a few votes can easily change the allocation of seats.

Held that in the present matter, the statute establishing the Commission does not make provision for taking decisions by round robin resolution, nor was the court referred to a regulation, rule, article, or policy of the Commission authorising it to take a decision or authorising an act to be performed on its behalf by round robin resolution. It thus follow that a decision of the Commission taken on the basis of a round robin resolution would be invalid.

Held further that the irregularities that occured at Glencoin, Proef Plaas and Stampriet Police Cells are of such a substantial nature that no Court properly applying its mind to the evidence and the law can in good conscience, declare that they do not matter and that the will of the people was expressed nonetheless.

Held further that voting processes were conducted so badly and in gross disregard of the principles set out in Part 5 of the Act, the question of whether or not the result is affected or not does not arise for determination at all, firstly because it is not possible to determine with certainty how many voters in the Mariental Rural Constituency were disenfranchised.

Held furthermore that on the reading of s 64 of the Act  it is plain that the Legislature reserved the determination of the polling day for the President on the recommendations of the Commission.

Judge
Ueitele J
Oosthuizen J
Sibeya AJ

 


ORDER


 

a)         The Electoral Commission of Namibia’s failure to comply with the prescribed periods of time and forms of service, is hereby condoned and the matter is enrolled as one of urgency in terms of Rule 5(21) of the Rules of this Court.

b)         The ballots casted and the elections held on 25 November 2020 in the Koes, Aroab and Stampriet Local Authorities as well as in the Mariental Rural Constituency are declared invalid and are set aside.

c)          The 4th and 8th respondents’ counter applications are dismissed.

d)         There is no order as to costs in keeping with section 171 of the Act.

e)         The Electoral Commission of Namibia must for purposes of ensuring that all political parties, associations or individuals who participated in the taking of the poll on 25 November 2020, again partake in the re-run of the poll, pay to that political party, association or individual an amount of N$ 50 000 in respect of the election for a member of the Hardap Regional Council and an amount of N$ 25 000 in respect of election for a Local Authority Council.

f)           The Electoral Commission must pay the amounts referred to in paragraph 5 of this Order only to a political party, association or individual who has participated in the re-run of the poll.

g)         The matter is regarded as finalised and is removed from the roll.

 


JUDGMENT


THE COURT:

 

Introduction

[1]  This Court, in the matter of Tjirare and Another v Chairperson of the Electoral Commission of Namibia and Others[1] stated that voting is the foundational concept for our entire democratic structure. The Court went on to state that we, as a nation, have settled on the principle that political legitimacy is based on the consent of the governed. What this means in our view is that any government that wants to lay claim to legitimacy must, in some fashion or the other allow the people to choose its rules and its rulers. That ‘in some fashion’ is important, because it gives the people input in choosing their Rulers.

[2]  The ‘some fashion’ that the people of Namibia have chosen is the periodic election of those who must rule at all spheres of Government. In our view election is one of the most important modes of building a functioning and effective state and of developing a more open, inclusive, and representative political order; and revitalising the link between the state and the society. In our view, elections are an essential step in building legitimacy and enabling citizens to take part in shaping a common future. Yet elections can also be used to destabilise and act as detonators of violence and conflict and if conditions are not right, elections can be a tightrope walk between war and peace, stability and instability.

[3]  Elections can be conducted successfully and thus perform their stabilizing role if conducted by an independent, well-functioning Election Commission and an Election Complaints System (where disgruntled persons may be heard and their issues decided upon) which is crucial for the success of an election process. This case is, in our view, about reaffirming the importance of a free, transparent, credible and fair election at the local and regional spheres of government.

 

The parties and the relief sought.

[4]  The applicant in this matter is the Electoral Commission of Namibia (we will in this judgment refer to the applicant as the ECN or the Commission) and there are ten respondents (five of whom are political parties which are registered in terms of the electoral laws of Namibia and who participated in the local and regional elections that are the subject of this matter, four are individuals who are aspiring to be elected as regional leaders at the regional level and the last respondent is the Minister responsible regional and local government affairs).

[5] We pause here to observe that this is the first time in the twenty-eight years of existence of the ECN, that the Commission of its own volition approaches the Court to declare the taking of a poll invalid. The Commission’s competence to seek self-review of its official’s actions is quite appropriate. The Supreme Court, (Per Damaseb DCJ with Hoff JA and Frank AJA concurring) in the matter of China State Engineering Construction Corporation v Namibia Airports Company Ltd[2]  stated that:

‘It is now firmly settled that administrative decision-making remains valid and binding, however flawed, unless set aside by a competent court.[3] The consequence of that principle is that in a constitutional state governed by the rule of law and legality, where an administrative decision maker such as the NAC becomes aware that its decision-making is tainted by illegality (either arising from fraud by its officials, non-compliance with statutory prescripts or any other vitiating circumstance recognised in law), it is required,[4] unless a prior challenge has been mounted by an aggrieved person with proper standing, to approach court to have the decision reviewed and set aside. Where there has been a prior challenge it may choose to go on record for the purpose of informing the court that it supports the review and make full disclosure of all the relevant evidence and documents under its control; and abide the decision of the court. What is clear is that it (and its officials entrusted with public responsibilities) must act in good faith and not become obstructive and be defensive against those seeking to have the decision-making corrected.’

[6]   The ECN approached this Court on the 1st of December 2020 on an urgent basis, seeking the following relief:

‘1.     Condoning the Applicant’s (sic) non-compliance with the Rules of this Honourable Court and the time periods prescribed therein in so far as these have not been complied with and directing that this matter be heard as one of urgency.

2.      Declaring the ballots cast and the elections held on 25 November 2020 in Koes, Aroab and Stampriet Local Authorities, as well as Mariental Rural Constituency, null and void;

3.      Directing the holding of new elections not later than 14 days from date of Order in the above named local authorities and constituency;

4.      Directing a waiver of the application of the processes as contained in Section 64(1)(a) as read with Section 64(3) of the Electoral Act 5 of 2014;

5.      Costs if opposed;

6.      Alternative or other relief’

[7]  Of the ten respondents cited by the ECN, only one political party (namely the fourth respondent, the Landless Peoples Movement and the eighth respondent Ms Deensia Swartbooi) opposed the application. In addition to opposing the ECN’s application, the fourth and eighth respondents also filed a counter application (to which the Commission responded) in terms of which they seek the following relief:

‘a.  Condoning the Applicant’s (sic) non-compliance with the Rules of this Honourable Court and the time periods prescribed therein in so far as these have not been complied with and directing that this matter be heard as one of urgency.

b.         Confirming in terms of section 115 of the Electoral Act, 2014 (Act (5 of 2014) that the regional council elections held on the 25 the November 2020 in the Mariental Rural Constituency as (sic) valid.

 

c)      Directing, in terms of section 111(2)(b) of the Electoral Act, 2014 (Act (5 of 2014), that the Electoral Commission of Namibia declare the duly elected candidate as a member of the Hardap Regional Council for the Mariental Rural Constituency;

d)          Directing any  party  opposing this order to pay the costs thereof;

e)          Alternative or other relief.’

 

[8]  The matter was initially set down for hearing on 04 December 2020 but on that day, the fourth and eighth respondents, had not yet filed their opposing affidavits (affidavits opposing the ECN’s application) and supporting affidavits (affidavits in support of their counter application). We accordingly postponed the matter to Wednesday the 09th of December 2020 to enable the parties to exchange pleadings. The parties are in agreement that this is an urgent matter and we hold the same view and we therefore condone the applicants’ non-compliance with the forms and service provided for in the Rules of this Court, and hear the matter as one of urgency.

 

Preliminary issues at the Hearing.

[9]   At the hearing on 09 December 2020, the Court raised two issues with the parties, the first being the parties’ authority to institute the proceedings and the second being the provision of security as contemplated in s 169 of the Electoral Act, 2014. As regards the Commission, Mr Mujoro, the Chief Electoral and Referenda Officer of the Commission deposed to the affidavit in support of the ECN’s application. He indicated that the Commissioners, by a ‘round robin resolution’ authorised the institution of the application. When we had regard to that resolution, it transpired that the resolution was signed by only three members of the Commission. It thus became apparent that not all members of the Commission signed the resolution.  

[10]  We raised the question whether the round robin resolution that was only signed by three members was a valid resolution authorising the institution of the proceedings. Mr Ncube, who appeared for the ECN and relying on s 12 of the Act, responded that the resolution was validly taken. The parties, after being probed by the Court requested, as Mr Ncube put it ‘out of abundance of caution’ an adjournment to place proper resolutions before Court.  After the adjournment, both parties placed before Court resolutions which satisfied us that the parties were properly authorised to institute and defend these proceedings and they also placed before us forms which we in terms of s 169(6) accepted as sufficient security to enroll the matter.

[11]  We have, however, decided to say a word or two as regards the ‘round robin resolution’ on which Mr Ncube placed reliance for the authority to institute the proceedings. Mr Ncube even went to the extent of submitting that a ‘round robin resolution’ can be equated to a meeting of the Commission. That argument is clearly untenable and wrong.  

[12]   The relevant parts of s 12 of the Electoral Act, 2014 on which Mr Ncube relied reads as follows:

Meetings of Commission and decisions

12.    (1)     Meetings of the Commission are held at the dates, times and places as the Chairperson of the Commission may determine.

 

(2)     The Chairperson of the Commission –

(a)     may at any time convene a special meeting of the Commission;

(b)     must convene a special meeting of the Commission if requested in writing by at least three members of the Commission.

 

(3)     The Chairperson of the Commission presides at all meetings of the Commission.

(4)     If the Chairperson of the Commission is absent from a meeting of the Commission, the members of the Commission present must elect a member from among their number to act as Chairperson at that meeting, and the member who so acts has all the powers and must perform all functions of the Chairperson.

(5)     At a meeting of the Commission

(a)     the majority of the members of the Commission constitutes a quorum;

(b)     all questions are decided by a majority of votes of the members present and voting; and

(c)     the member presiding, in the event of any equality of votes, has a casting vote in addition to his or her deliberative vote.

(6)     No decision taken by the Commission or act performed under the authority of the Commission is invalid by reason only of –

(a)     a vacancy on the Commission; or

(b)     the fact that any person who is not entitled to sit as a member of the Commission sat as a member of the Commission when the decision was taken or the act was authorised, if the decision was taken or the act was authorised by the requisite majority of the members of the Commission who were present at the time and entitled to sit as members.

 

(7)     …. ‘

[13]    What is abundantly clear from s 12 of the Electoral Act, 2014 is that the meetings of the Commission must be held on such dates and at such times and places as may be determined by the Chairperson of the Commission. The quorum for such meeting must be a simple majority of the total number of members appointed at that time. A decision of the majority of the members present at a meeting of the Commission constitutes the decision of the Commission. In the event of an equality of votes, the person presiding over a meeting of the Commission will have a casting vote in addition to a deliberative vote. In the matter of Schierhout v Union Government (Minister of Justice)[5] it was held as follows:

‘When several persons are appointed to exercise judicial powers, then in the absence of provisions to the contrary, they must all act together, there can only be one adjudication, and that must be the adjudication of the entire body. And the same rule would apply whenever a number of individuals were empowered by statute to deal with any matter as one body, the action taken would have to be the joint action of all of them…for otherwise they would not be acting in accordance with the provisions of the Statute’.

 

[14]   A similar approach was also adopted in Yates v University Bophuthatswana and Others[6] where Friedman J: said;

‘…This implies that there must be full attendance and participation by all the members of the committee and that they must reach their decisions unanimously or by the requisite majority. They have been selected for a purpose and that purpose would be defeated if one or more of them were not present at the time of adjudication. The fact that they may have conveyed their views to the chairman of the committee individually is irrelevant. What is important is that they should all have the opportunity to discussing and considering their respective views in the presence of each member of the committee. The fact that one or two were unavoidably absent does not cure the position. A time should have been fixed for all of them to be present in order to consider what were very serious and strong allegations against the applicant’.

 

[15] This position was restated in Disciplinary Committee for Legal Practitioners v Makando and Another, Makando v Disciplinary Committee for Legal Practitioners and Others[7] where Parker J (with Siboleka J concurring) said:

 

‘[32]     Indeed, in my opinion, that a binding decision of the applicant can be taken by the applicant only at the applicant’s meeting is put beyond doubt if regard is had to the abovementioned sections on quorum. What majority carries a vote, and the chairperson’s casting vote in addition to his or her deliberate vote. If, for example, one or two members can take a decision in the privacy of their home, office, or chambers or suchlike places and approach the rest individually for their endorsement of such decision - not at a meeting of the applicant where the issue could have been openly discussed and deliberated on by members who are present and form a quorum - why should the Legislature go into the trouble of prescribing a quorum and what majority carries a vote, and also provide for the chairperson’s casting vote in addition to his or her deliberative vote? Any argument that where there is a consensus there is no need to take the decision at a meeting is, with the greatest deference, illogical: it misses the point. The question that arises is this: who decides – and at which venue – whether there is or there has been a consensus? A consensus can only be reached at a meeting after the issue at hand has been openly discussed and deliberated on.’

[16] In Norval and Others v Consolidated Sugar Investments (Namibia) (Pty) Ltd and Others,[8] this Court defined a round-robin decision as ‘a written decision or resolution made in accordance with a round-robin procedure for Executive Authority’s decisions created by a regulation, rule, article, or policy of the applicable body and such decision must be signed by all members of the Executive Authority or, if such regulation, rule, article or policy provides that a round-robin resolution need not be unanimous, it would still be sufficient if the signatories constitute a quorum, even though all the directors did not sign the resolution.

[17] The Commission is a creature of statute. It thus follows that its existence and operation must be founded on the statutes and its activities must by large be executed in compliance with the statute creating it. The round robin method relied upon cannot be out rightly said not to be defective for not being sanctioned by the empowering legislation. Existence of a rule creating application of the round robin process could have permitted members of the Commission to take decisions other than at meetings requiring a quorum. In the absence of the rule, it is however, of prime importance to have compelling reasons why it was applied ahead of the conventional method set out in the Electoral Act, 2014.

[18]  In the present matter, the statute establishing the Commission does not make provision for a round robin resolution, nor were we referred to a regulation, rule, article, or policy of the Commission authorising it to take a decision or authorising an act to be performed on its behalf by way of a round robin resolution. It follows that the decision of the Commission taken on a round robin basis to institute the application before court is invalid. As referred to earlier, the Commission proceeded to convene a meeting and passed a resolution according to law. It is on this basis that we heard the application.

The basis for relief sought by the Commission.

[19]  We have indicated earlier that the ECN seeks an order declaring the ballots cast and the elections held on 25 November 2020 at Koes, Aroab and Stampriet Local Authorities, as well as Mariental Rural Constituency, null and void and an order directing the holding of new elections in the local authority areas of Koes, Aroab, Stampriet and the Mariental Rural Constituency, not later than 14 days from date of this judgment. The ECN further seeks an order waiving the application of the processes as contained in s 64(1)(a) as read with s 64(3) of the Electoral Act, 2014. The basis on which the ECN seeks these Orders is set out in the founding affidavit deposed to by its Chief Electoral and Referenda Officer, Mr Mujoro.

[20]  Mr Mujoro bases the order which the Commission seeks on the premise that the casting of the ballots and the holding of the elections on 25 November 2020 in the named three local authority areas and in the Mariental Rural Constituency were not conducted in terms of the tenor and spirit of the Constitution and in accordance with the principles set out in the Electoral Act, 2014. He is of the opinion that the non-compliance with the Electoral Act, 2014 and the irregularities committed by the electoral officers are so material that they undermine the credibility, integrity and fairness of the electoral process in the named local authorities and the Mariental Rural Constituency.

[21] We, in a summarized form tabulate the non-compliances and the irregularities chronicled by Mr Mujoro in his affidavit.

 

Aroab Local Authority

[22]  Mr Mujoro in his affidavit states that four political parties namely; the Landless People’s Movement, Namibia Economic Freedom Fighters, Popular Democratic Movement and the Swapo Party of Namibia (Swapo), contested the election for the local authority area of Aroab.  He proceeds to state that on 25 November 2020 and at 06H00 the presiding officer for fixed Team 105, Mr Johannes Benedictus Draaier, collected the election material from the Aroab Police station.  He states that Mr Draaier and his election officers for the local authority area of Aroab received two yellow boxes marked Keetmanshoop Rural Fixed 105 and Aroab Local Authority election.

[23]  Mr Mujoro proceeds to state that when Mr Draaier opened the ballot box written Aroab Local Authority Fixed Team 105, to verify the ballot papers, it was written Community Hall fixed 101. He then decided not to issue the ballot papers for use by the voters even though the ballot papers were the correct papers for the Aroab Local Authority area despite the number 101 instead of 105.

[24]  Mr Mujoro states that at that stage, Mr Draaier should have liaised with the returning officer, Mr Frederich Fleermys, to establish whether Team 101 received the ballot papers intended for use at the polling stations that that team was serving. Mr Mujoro continued to state that as the Presiding Officer it was Mr Draaier’s duty to verify that the ballot books corresponded with the Elect 21, obtained from the box marked Keetmanshoop Rural Fixed 105. He further states that the Elect 21 form is for ascertaining that the ballot books in the metal box correspond with the serial numbers recorded on the ballot books and recorded on Elect 21. Mr Draaier furthermore did not complete the requisite Elect 22 to record the serial numbers of the ballot books he received, which is an administrative form to account for the ballot papers received by the presiding officer.

[25]  It was furthermore Mr Mujoro’s deposition that when the polls opened at 07h00 Mr Draaier observed a queue of approximately 80 people and upon verification of the first two voters who could not be detected  on the Voter Verification Device, Mr Draaier opted to instead assist with the completion of Form 27 which is a form used to record the Voter Registration Numbers of voters in possession of a valid registration card but who do not appear on the Voter Verification Device or the Manual Voters Register.

 

Koes Local Authority

 

[26] Mr Mujoro in his affidavit states that on the 25th November 2020 at around 05:30 AM, the Presiding Officer for Team 106 (Koes Community Center) in respect of the Koes, Local Authority area, a certain Mr Alex Donald Lambert, collected the voting material from the Koes Poling police station. Upon verifying the seals on the ballot boxes, he observed that one steel box was marked “Keetmanshoop Rural Fixed 106” and the other yellow steel box was marked “Koës-Fixed 106".

 

[27] Mr Mujoro further proceeded and testified that when Mr Lambert opened the boxes containing the voting materials, he did not verify the Elect 21 against the actual ballot books contained in the yellow steel boxes nor did he complete the Elect 22 to account and verify the ballot books received. He inadvertently removed the ballot books from the wrong steel ballot box marked Keetmanshoop Rural Fixed 106 and issued them to the polling officer responsible for issuing ballot papers to the voters for this officer to stamp the ballot papers with the secret mark. Voting then commenced at the Koes Community Center Team 106 with the incorrect ballot papers, that is, with the ballot papers meant for voters in the Keetmanshoop Rural Constituency Fixed polling station number 106. The error was detected at around 14h00 – 15h00 PM and it is at that point that Mr Lambert was instructed to immediately stop and refrain from continuing with the voting process and issuance of the local authority ballot papers.

 

Mariental Rural Constituency and Stampriet Local Authority:

[28]  Mr Mujoro in his affidavit states that on the 25th November 2020 Team 304, led by the presiding officer, Mr Gerson Jacob, was assigned to serve three polling stations namely Glencoin, Kalahari Proef Plaas and the Stampriet Police Cells. Two of these three polling stations namely Glencoin and Kalahari Proef Plaas are situated outside the boundaries of the Stampriet Local Authority area and the Mariental Local Authority area. This means that in terms s 98 of the Electoral Act, 2014 a voter who casts his or her vote at Glencoin and Kalahari Proef Plaas polling stations could not cast his or her vote in respect of the candidate for the Stampriet Local Authority area or the Mariental Local Authority area.

 

[29]  Mr Mujoro further deposed thereto that Mr Lambert opened and inspected the ballot boxes at the Glencoin polling station which was the first polling station served by Team 304. Mr Mujoro continued and stated that Mr Jacob, confessed that when he opened the ballot boxes he was not sure which ballot papers to use. He then instructed that the local authority ballot papers be used. It was Mr Mujoro’s deposition that this instruction by Mr Lambert that voters be issued with ballot papers for local authority elections is contrary to his duties as a presiding officer and contrary to s 98 of the Electoral Act, 2014. Mr Jacob confirmed that all the voters who voted at Gleincoin were written ‘not applicable’ for the Mariental local authority.

 

[30]  Mr Mujoro further deposed thereto that Mr Jacob further confirmed that his Team 304 left Glencoin polling station at 09h00 AM as Mr Jacobs had assumed that all voters had voted by then. Mr Jacobs further confessed that he was not aware that they had to stay at Glencoin polling station until 13h00 PM. In terms of the publicized times that team (team 304) was supposed to have been stationed at Glencoin polling station until 13h00 PM.  

 

[31]  Mr Mujoro further deposed thereto that at the Glencoin polling station, one of the voters who was due to cast a vote raised a concern with the police officer who was tasked to serve the poll as a security detail (a certain constable Mervin Ismail) that the ballot paper issued to him had names of only three candidates instead of the four candidates for the Regional Council elections as per the Government Gazette which was publicized by the Commission. Mr Mujoro further testified that when this anomaly was brought to the attention of the presiding officer, the presiding officer simply stated that the candidates for the Mariental Rural Constituency were just supposed to be three. Mr Mujoro attached a copy of Government Gazette Number 7389 of 16 November 2020 which indicates that the candidates declared as duly nominated for election as members of the Hardap Regional Council in respect of the Mariental Rural Constituency were as a matter of fact four in number.

 

[32]   Mr Mujoro further deposed thereto that the returning officer, Ms Martha Shilimela, only discovered the errors and the fact that the presiding officer (Mr Jacob) was not aware of the difference between the manner in which the local authority and regional councils’ elections had to be conducted, at the Stampriet Police Cells at around 19h30 PM in the evening. The Stampriet Police Cells was the last destination of team 304. When these errors were detected, the returning officer retained all the wrongly issued ballot papers and sealed them immediately.

 

[33] Mr Mujoro further deposed thereto that the ballot papers used for the casting of votes in respect of the Aroab, Koes and Stampriet Local Authority areas by Team 304 and also in respect of the Mariental Rural Constituency area by team 304 were not counted and collated and therefore the elections were not completed in the affected areas.

 

[34] In the light of the testimony given by Mr Mujoro, he contends that it is clear that the irregularities, infringe all Namibian’s rights as provided under Article 17(2) of the Constitution, and that the errors and irregularities were fatal and have the effect of depriving the citizens of their rights to participate in political activities of their choice and to choose political leaders to represent them and shape policies that affect their lives.

 

The opposing affidavit

 

[35]  The basis on which the fourth and eight respondents oppose the ECN’s application is set out in the opposing affidavit deposed to by Paul Thomas who is a member and National Secretary of Membership of the Landless People’s Movement. Mr Thomas states that the fourth and eighth respondents’ opposition of the ECN’s application is limited to the taking of the poll in respect of the Mariental Rural Constituency. He states that the fourth and eighth respondents do not oppose the relief sought by the ECN in respect of the Aroab, Koes and Stampriet local authorities’ elections.

[36]       Mr Thomas further admits that errors and irregularities occurred, but contends that the Commission has not placed sufficient evidence before the Court to warrant the ‘drastic measure’ of setting aside the elections. He states that the irregularities are minor and do not affect the outcome of the elections.

 

[37]    Mr Thomas further contends that the fact that votes casted at polling stations served by Mobile Team 304 (which are three out of a total of eleven polling stations) could not be tallied due to errors is not of significance as it will not change the outcome of the Regional Council Elections which is one of ‘first past the post’ as opposed to the local authority results where the winner is declared by way of proportional representation and a few votes can easily change the allocation of seats.

 

[38]    Mr Thomas further contends that in the Mariental Rural Constituency, there are eight polling stations and if regard is had to the extracted Form 37, the candidate for the Landless People’s Movement garnered the most votes with a total of 869 votes while the party in second place was the Swapo Party with 692 votes. For the results of Mobile Team 304 to have made a difference, Swapo needs a total of 178 votes from the Glencore, Proef Plaas and Stampriet Police cells to be winners. This, Mr Thomas contends, is impossible as the population there is much less than any of the other polling station areas. Swapo party would not have been able to secure 178 votes from Mobile Team 304 as the highest Mobile team had 163 votes, stated Mr Thomas. For these reasons, Mr Thomas furthermore contends that the errors made by Mobile Team 304 will have no impact on the outcome of the poll (elections) taken in respect of Mariental Rural Constituency.

 

[39]    It is against the above sketched back ground that we have to consider the ECN’s application and the fourth and eighth respondents counter application. In our view, the question that we have to answer is whether the errors pointed out by the Commission are of such a nature that they warrant the setting aside of the poll taken in the elections held on 25 November 2020 in respect of the Aroab, Koes and Stampriet Local Authorities and the elections held on 25 November 2020 for a member of the Hardap Regional Council in respect of the Mariental Rural Constituency.

 

Discussion

[40]    The legal framework within which elections are conducted in Namibia was set out in the recent judgment of the Supreme Court in Itula and Others v Minister of Urban and Rural Development and Others[9]  and this court’s judgement in Tjirare and Another v Chairperson of the Electoral Commission of Namibia and Others.[10] We associate ourselves with the legal principles enunciated there and we will accordingly not repeat them here.

 

[41]    In our view, the question that has to be answered in this matter is whether the factual errors that have been set out by Mr Mujoro and conceded to by Mr Thomas warrant the setting aside of the poll taken in respect of the elections for members of the Aroab, Koes and Stampriet Local Authorities elections and elections for a member for the Hardap Regional Council regarding the Mariental Rural Constituency. This of necessity involves the interpretation of s 115 of the Electoral Act, 2014 which provides that:

 

115     Immaterial mistakes not to affect validity of elections

No election may be set aside by any competent Court by reason of any mistake or non-compliance with this Part, if it appears to the Court that the election in question was conducted in accordance with the principles laid down therein and that the mistake or non-compliance did not affect the result of the election.’

 

[42]    In the Itula matter, the Supreme Court with respect to s 115 of the Electoral Act, 2014 stated the following:

 

‘The principle contained in s 115 is essentially that a court would be precluded from setting aside an election where a mistake or non-compliance is not material and where the election is conducted in accordance with the principles laid down in Part 5. It does not however necessarily follow that in all other circumstances, that a court must set aside an election. A court certainly retains a discretion whether to do so or not. In the exercise of that discretion a court would have regard to the circumstances of the case before it and grant appropriate relief as is stated in RDP2.[11] We turn to factors taken into account in the exercise of that discretion.’

 

[43]    Our reading of s 115 of the Electoral Act, 2014 is that the jurisdictional facts that must be present for a Court to uphold an election are that the Court must be satisfied that the election in question was conducted in accordance with the principles laid down in the Act and that the mistakes or non-compliances with the act do not affect the result of the election. In our view if both those jurisdictional facts are not met then the Court will exercise its discretion and invalidate the election.

 

[44]    In this matter, the Commission relies on the fact that voters, in the Mariental Rural Constituency especially at the Glencore, Proef Plaas and Stampriet Police cells were presented with the incorrect ballot papers by the presiding officer, a polling station closed four hours earlier than the time when it was supposed to have closed and voters who were not eligible to cast a vote in the local authority election casted a vote in the Mariental Rural Constituency particularly the ballot papers that were utilised at the Glencoin, Kalahari Proef Plaas and the Stampriet police cells. At those three polling stations, the ballot papers that were presented to the voters only had three candidates instead of the four candidates that were declared duly nominated candidates for election of a member of the Hardap Regional Council. These anomalies, argued the Commission, amounts to disenfranchising a large portion of voters in the Mariental Rural Constituency and it can therefore not be said that an election that disenfranchise voters is conducted in accordance with the principles set out in Part 5 of the Electoral Act, 2014.

 

[45]    Mr Shimutwikeni, who appeared for the fourth and eighth respondents on the other hand argued differently. He argued that results in the constituency (Regional Council) elections are determined on the basis of the “first past the post” which is distinct from local authority elections where the winner of that election is based on a particular candidate’s share of the total votes casted. He thus continued and argued that the question of whether or not the principles laid down in Part 5 of the Act were followed must be considered holistically, that is, considering all the matters deal with in Part 5 of the Act, such as nomination of candidates, the declaration of duly nominated candidates, and the completion of the polling conducted at other eight polling stations within the constituency. He argued that if those facts are taken into account, the conclusion that can be reached is that the election was conducted substantially within the Principles set out in Part 5 of the Act and the Court must thus exercise its discretion in favour of declaring the votes valid.

 

[46]    Mr Shimutwikeni relying on Itula and Others v Minister of Urban and Rural Development and Others furthermore argued that the want of compliance with some of the principles set out in Part 5 of the Electoral Act, 2014 alone does not mean that the Court is compelled to set an election aside. He argued that the Court must consider whether the non-compliance will affect the outcome of the poll, which he argued further that in this case those irregularities chronicled by Mr Mujoro in his affidavit will in no way affect the outcome of the votes.

 

[47]    Mr Shimutwikeni further argued that the Commission points out the errors and the irregularities committed by its officials, but despite the fact that it is the custodian of all ballots and the voters roll, the Commission makes no attempt at all to show how their mistake effects the results.  He argued that the fourth respondent, that is the LPM and its agents at least attempted to show to the court that the error did not affect the results. In fact, the duty to show the effect that the errors had on the results in terms of s 115 is arguably always on the applicant.

 

[48]    We are of the view that as regard the elections held on 25 November 2020 in respect of the Aroab, Koes and Stampriet Local Authorities, no doubt exists that those election were flawed to the core. We thus have no difficulties to declare those elections invalid and set them aside.

 

[49]    As regard the elections in the Mariental Rural Constituency, we are of the view that as attractive as the arguments of Mr Shimutwikeni sound, they suffer fundamental flaws. The first flaw is the fact that in respect of the Mariental Rural Constituency the Commission announced no result of the elections because, the Commission upon realising the errors aborted the process. It thus begs the question how is the result not affected if no result was announced.

 

[50]    Secondly, reliance on the Itula and Others v Minister of Urban and Rural Development and Others, the Republican Party of Namibia and Another v Electoral Commission of Namibia and Others[12] and the Rally for Democracy and Progress and Others v Electoral Commission for Namibia and Others[13] matters is not of much help.  We say so because the facts of those cases are distinguishable from the facts of the present matter. For example, in the Itula matter the Supreme Court said that: 

 

‘[86]     In the founding affidavit, the applicants alleged irregularities concerning the operation of EVMs on Election Day described by the applicants as ‘multiple malfunctions by EVMs’. It was however pointed out by the respondents that the allegations in the founding affidavit concerned faulty EVMs at 16 out of 4213 polling stations and that it was not stated how many alleged malfunctions concerned the Presidential election. Furthermore, counsel for the respondents pointed out that the allegations of irregularities and malfunctions were separately answered and refuted by the presiding officers at the respective polling stations and further that one of the 16 polling stations contended for was non-existent. He also said some of the complaints were not sufficiently specific (by referring to a constituency and not to a specific polling station). In a few instances, malfunctioning machines and beeping occurred and are explained in the answering affidavits. In one instance there was a machine which stopped for three minutes and later went back on again with no one in the booth when it stopped. The other incidences of malfunctioning and irregularities are denied by the presiding officers at the respective polling stations.

 

[87]      Upon the application of the Plascon-Evans rule[14] in motion proceedings, the applicants have established very little in the way of irregularities or machine malfunctioning.

 

[88]      The making of allegations of irregularities without properly establishing them is entirely unlike the position in the Odinga application in Kenya where systematic illegalities and systematic irregularities were alleged against that Commission and where the court found that ‘the illegalities and irregularities committed by the 1st respondent (Commission) were of such a substantial nature that no Court properly applying its mind to the evidence and the law. . .can in good conscience, declare that they do not matter and that the will of the people was expressed nonetheless’.[15] In this case, even where machines malfunctioned, the applicants did not apply to review electoral materials after initially indicating an intention to do so. Besides, the applicants do not contend that the machines had been tampered with.’

 

[51]    In the present matter, the ECN points out that a polling station was closed four hours in advance of the time on which it was scheduled to close, there is evidence that a voter did turn up at the polling station and found no polling officers. There is further evidence that the ballot papers utilised by Team 304 contained ballot papers for a local authority area when at least two of those polling stations are situated outside local authority areas and the ballot papers only contained three candidates instead of the gazetted and declared four candidates.

 

[52]    Mr Shimutwikeni’s emphasis on the quantitative aspect of the vote overlooks the fact that it is not every violation that can be evaluated in quantitative terms. We are of the view that in determining whether to overturn an election, quantity is as good as quality. This Court and the Supreme Court emphasized the need for the Commission to conduct elections that are credible and fair. Can it be said in all honesty that where there are irregularities (such as those pointed out by the Commission) that go to the very heart of electoral integrity, that the people have expressed their will and made their choices? In our view, not. The irregularities that occurred at Glencoin, Proef Plaas and Stampriet Police Cells are of such a substantial nature that no Court, properly applying its mind to the evidence and the law, can in good conscience declare that they do not matter and that the will of the people was expressed nonetheless.

 

[53]    We are of the further view that having come to the conclusion that the taking of the poll at Glencoin, Proef Plaas and Stampriet Police Cells was conducted so badly and in gross disregard of the principles set out in Part 5 of the Act, the question of whether the result is affected or not does not arise for determination at all. We find as such for the following reasons: firstly, because it is not possible to determine with certainty how many voters in the Mariental Rural Constituency were disenfranchised and secondly, in our view there was no election of which a result has to be determined.

 

[54]    For the reasons that we have set out in the preceding paragraphs we are of the view that the casting of ballots for the elections of a member of the Hardap Regional Council in respect of the Mariental Rural Constituency was so bad that it was not substantially in accordance with the principles set out in Part 5 of the Act and is thus declared void and is set aside. Having come to the conclusion that the casting of ballots for the election of a member of the Hardap Regional Council in respect of the Mariental Rural Constituency was so bad and must be set aside, we now proceed to consider other relief sought by the Commission.

 

The relief sought by Commission

 

[55]    We indicated earlier in this judgment that the Commission, in addition to seeking an order declaring the ballots casted and the elections held on 25 November 2020 in the Koes, Aroab and Stampriet Local Authorities as well as Mariental Rural Constituency void, also sought orders to the effect that the Court must direct the Commission to  hold new elections, in the three local authorities and the and the Mariental Rural Constituency, not later than 14 days from date of this judgment  and also  an order to  direct that  the process contemplated in s 64 (3) of the Act be waived.

 

The holding of a re-run of the poll in the affected areas within 14 days

 

[56]    We are of the view that the starting point is the powers conferred by the Act on this Court. The powers are set out in s 168 which include the power to hear and determine appeals against decisions of electoral tribunals; review decisions of electoral tribunals; adjudicate and decide any matter concerning any contravention of the Act; hear and determine appeals against decisions of the Commission; review any decision of the Commission relating to any electoral issues; and hear and determine any matter which relates to the interpretation of any law relating to electoral issues referred to it by the Commission. The question is thus whether the power to hear and determine any matter which relates to the interpretation of any law relating to electoral issues referred to it by the Commission includes a power to direct a rerun of the taking of the poll on a specific day.

 

[57]    The determination of polling days is dealt with under Chapter 3, Part 5 of the Act. Section 64 of the Act in material terms provides that:

 

‘64    (1)        (a) If a general election or by-election is to take place in accordance with section 63, the President must by proclamation in the Gazette make known –

(a)        In the case of any such election –

(i)              

(ii)              For any member of any regional council, in respect of each constituency in respect of which the election is to take place;

(iii)            For members of any local authority council, in respect of the local authority area in respect of which the election is to take place,

a date determined by the President, upon recommendation by the Commission, upon which the submission of nominations of candidates must take place and the place at which it must so take place;

 

(b)        Subject to subsections (2) and (6), the day determined by the President, upon recommendation by the Commission, upon which a poll must be taken in the election; and

 

(c)        the –

(i)               name and office of the person appointed in terms of section 65 as returning officer in the election; and

(ii)              if the information of candidates must be submitted under this Act to any person or body other than the returning officer so referred to, then also the name and office of that person or body, as the case may be.

(2) …

 

(3)        Any day determined under –

(a)        subsection (1)(a) must be a day not less than 15 days and not more than 20 days after the day on which the proclamation referred to in subsection (1) is published in the Gazette;

 

(b)        subsection (1)(b) must be must be a day not less than 40 days and not more than 45 days after the nomination day.’

 

[58]    What is abundantly clear is that the power to determine the polling day is vested in the President on the recommendation of the Commission. It is further more clear that the polling day is attached to other electoral processes, for example, s 64 provides that the polling day must be a day not less 40 days and not more than 45 days from the nomination day. It was undisputedly submitted by Mr Ncube that the 45 days from the nomination date in this matter lapsed at the end of November 2020.

 

[59]    In our view, the reading of s 64 of the Act makes it plain that the Legislature reserved the determination of the polling day for the President on the recommendations of the Commission. We hold the view that there is good reason to restrict the determination of the polling date to the President on the recommendations of the Commission. Our conclusion is premised on the following: firstly, encompassed in the determination of a polling date is the determination of the name or office of the person appointed as a returning officer and other election officers (as s 65 of the Act) which this court has no such expertise therefore the Commission is better placed to recommend the determination of the polling date to the President to make such day known by proclamation in the Gazette; secondly, in considering that the 45 days within which to hold the poll after the nomination date has since lapsed, it is the Commission which is better placed to recommend to the President to determine the polling date.  

 

[60]    We thus hold the view that the power to hear and determine any matter which relates to the interpretation of any law relating to electoral issues referred to it by the Commission does not include the power to direct that a re-run of the taking of the poll must take place by a specific day. For all intent and purpose, it appears that the Commission sucked the fourteen days period from its thumb. There is thus no merit in the relief sought that this court must order that the new election be held within fourteen days of the date of judgment, therefore this relief falls to be dismissed.

 

The waiving of the process prescribed under sec s 64 (3) of the Act.

 

[61]    Section 64(3) of the Act which the Commission implores the Court to order a waiver, deal with the periods within which a poll is to be taken after a person wishing to participate in an election have been declared duly nominated. Linguistically the section is clear: the election must take place not later than 45 days from the date of nomination of candidates. The basis and authority on which this Court can waive those provisions have not been placed before Court. We accordingly decline to grant the relief sought by the Commission.

 

Conclusion

 

[62]    We have made an observation which is worth recording. As much as the Commission can approach the court to rectify material irregularities, it remains the duty of the Commission to ensure that its election officers are properly trained in order to ensure credible, free and fair elections. It is incumbent on the Commission to have mechanisms in place to assess the transfer of election knowledge and skill to the election officers, and be satisfied that the men and women who are ultimately tasked to conduct elections on which our democracy starts and rests are well equipped to serve the election process. We cannot imagine the chaos that may consequentially follow if the voters come to the realization that some election officers are found to be wanting in the process of conducting elections. The Commission will not be approached with kid gloves if it turns out that its election officers are either not properly trained, assessed or examined to the extent that they may compromise the elections. 

 

[63]    In this case, the commission approached the court admitting that its election officers seriously compromised the validity of local elections in Koes, Aroab and Stampriet and regional elections in Mariental Rural Constituency.  In setting aside the voting process, it is unavoidable that the elections in the affected local authority areas and in the Mariental Rural Constituency have to be repeated and that the costs to the partaking political parties and independent candidates had to be duplicated in future.

 

[64]    The political parties and the independent candidates who participated in the process flawed by the Commission, will have to duplicate their participating efforts in order to preserve their voters' rights. The question is, is it just and fair that the political parties and the independent candidates incur such expenses and costs again. The answer must be a NO.  We are therefore of the view that the Commission must in one way or the other make good and indemnify the political parties and the independent candidates and contribute to the costs to be incurred by those who have to partake in a re-run of the elections in the affected local authority areas and the Mariental Rural Constituency in order to preserve the integrity of the election process.

 

[65]    Mr Ncube who appeared for the Commission argued that the remedy for those who participated and who are again intend to participate in the rerun of the elections must lie in the law of delict which will enable them to claim damages. We do not agree for the simple reason that this matter is not an ordinary delictual matter but a matter that deals with the practical application and exercise of constitutionally guaranteed rights. The court has established on evidence an amount to be paid by the commission to the same parties who participated in the election of 25 November 2020, taking part in the re-run. We are therefore of the view that Article 25 of the Constitution empowers this Court to fashion an appropriate remedy.

 

[66]    In the result, it is ordered that:

 

a)              The Electoral Commission of Namibia’s failure to comply with the prescribed periods of time and forms of service, is hereby condoned and the matter is enrolled as one of urgency in terms of Rule 5(21) of the Rules of this Court.

 

b)              The ballots casted and the elections held on 25 November 2020 in the Koes, Aroab and Stampriet Local Authorities as well as in the Mariental Rural Constituency are declared invalid and are set aside.

 

c)               The 4th and 8th respondents’ counter applications are dismissed.

 

d)              There is no order as to costs in keeping with section 171 of the Act.

 

e)              The Electoral Commission of Namibia must for purposes of ensuring that all political parties, associations or individuals who participated in the taking of the poll on 25 November 2020, again partake in the re-run of the poll, pay to that political party, association or individual an amount of N$ 50 000 in respect of the election for member of the Hardap Regional Council and an amount of N$ 25 000 in respect of election for a Local Authority Council.

 

f)                The Electoral Commission must pay the amounts referred to in paragraph 5 of this Order only to a political party, association or individual who has participated in the re-run of the poll.

 

g)              The matter is regarded as finalised and is removed from the roll.

 

___________________

S Ueitele

Judge

 

 

___________________

H Oosthuizen

Judge

 

 

___________________

O Sibeya

Judge

 

 

APPEARANCES:

 

APPLICANTS:                                                                                           Ncube J

Office of the government Attorney

 

 

FOURTH & EIGHTH RESPONDENTS:                                            Shimutwikeni H

Shimutwikeni & Co Inc, Windhoek

 

 

 


[1] Tjirare and Another v Chairperson of the Electoral Commission of Namibia and Others (EC 2/2020) [2020] NAHCMD 283 (13 July 2020) at para [2].

[2] China State Engineering Construction Corporation v Namibia Airports Company Ltd. 2019 (3) NR 791 para 5.

[3] This is the so-called Oudekraal principle (Oudekraal Estates (Pty) Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA) approved in for, example, Rally for Democracy and Progress v Electoral Commission of Namibia 2010 (2) NR 487 (SC); Black Range Mining (Pty) Ltd v Minister of Mines and Energy & others NNO 2014 (2) NR 320 (SC).

[4] Pepcor Retirement Fund & another v Financial Services Board & another 2003 (6) SA 38 (SCA).

[5] Schierhout v Union Government (Minister of Justice)1919 AD 30 at 44.

[6] Yates v University Bophuthatswana and Others 1994 (3) SA 815 (BGD) at 848G-I.

[7] Disciplinary Committee for Legal Practitioners v Makando and Another, Makando v Disciplinary Committee for Legal Practitioners and Others (A 216/2008,A 370/2008) [2011] NAHC 311 (18 October 2011) at paragraph 32.

[8] Norval and Others v Consolidated Sugar Investments (Namibia) (Pty) Ltd and Others 2007 (2) NR 689 (HC).

[9] Itula and Others v Minister of Urban and Rural Development and Others(A 1/2019) [2020] NASC 6 (05 February 2020).

[10] Supra Footnote.

[11] Para 7.

[12] Republican Party of Namibia and Another v Electoral Commission of Namibia and Others 2010 (1) NR 73 (HC).

[13] Rally for Democracy and Progress and Others v Electoral Commission for Namibia and Others 2013 (3) NR 664 (SC).

[14] As set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635C consistently followed and applied by this court and the High Court.

[15] Odinga para 379.