Leo Boonzaier | Constitutional Court preview: Kham v IEC

9 September 2015 – Tomorrow the Constitutional Court of South Africa hears Kham and Others v Independent Electoral Commission and Another CCT 64/15 (court papers), the final case (at least until the belated scheduling of Provincial Government, North West v Tsoga Developers) in its third term of 2015.

Date of hearing:  Thursday, 10 September 2015

Issue:  What (if anything) can and should the Court order the Electoral Commission to do in response to the ANC’s alleged vote-rigging in Tlokwe’s 2013 local government election?

Background:  In August 2013, eight municipal councillors from Tlokwe Municipality acrimoniously left the ANC and registered as independent candidates in the then-imminent municipal elections.  They were led by David Kham, the ANC’s chief whip in the municipality.  After the elections were held, and the councillors lost their seats to ANC candidates, they cried foul, saying the election was rigged, including with fraudulent voters.  (The DA, with an obvious stake in the matter, added that the ANC had bought votes.)  The IEC conducted an internal investigation, concluding that “only” 1040 people had voted illegally, not enough to swing the outcome.  But Mr Kham and his allies say a face-saving investigation by the IEC into the propriety of an election it orchestrated cannot be expected to uncover the real truth.  They took the matter to the Electoral Court in October 2014, seeking an order that an independent forensic audit be conducted and, if it reveals any impropriety, that the election be annulled.  A majority of that Court dismissed Mr Kham’s application, saying the Electoral Act (pdf) gives it no power to order special investigations — or at least not in the proceedings the applicants have brought — and that the IEC’s own investigation and recommendations were satisfactory.  But Wepener J dissented, saying (relying on the Constitutional Court’s judgment in AllPay) that serious irregularities cannot be brushed aside because they did not swing the result, and that the IEC’s investigation did not, in any event, grapple with the extent of the irregularities alleged.  This left Mr Kham’s legal team hopeful when the Constitutional Court agreed to hear its appeal.

Things to watch:  Allegations of ANC vote-rigging are becoming more and more common, in Helen Zille’s (unsurprising) view because the ANC fears it is losing ground to the opposition.  One dogged set of allegations stemmed from Abaqulusi Municipality, resulting in two court applications, which the Electoral Court unanimously dismissed (here and here), and from which the Constitutional Court refused to hear an appeal.  But Mr Kham’s allegations have gained more traction, dividing the Electoral Court and prompting this set-down.  There is not yet any cause for alarm about the fairness of our elections, but it is important for the IEC’s credibility (especially after the damaging Pansy Tlakula scandal) that it take prompt and effective action against any credible allegations of impropriety.

The first question is whether the Electoral Court has the power to order an independent investigation.  It is certainly true, as that Court found, that the Electoral Act does not expressly confer this power.  But we also know, in terms of section 18 of the Electoral Commissions Act, that the Electoral Court has the same status as a High Court — which has the inherent jurisdiction to craft its own remedies.  Strikingly, in fact, the Electoral Court has already ordered an investigation in previous proceedings brought by these same applicants.  In September 2013 it suspended the Tlokwe election because the Commission had erroneously refused to register five of the applicants as candidates — and ordered that the IEC undertake a full investigation into the conduct of the responsible official.

We hope and expect the Constitutional Court, which has repeatedly emphasised its expansive powers to order whatever is “just and equitable”, to endorse this approach.  Indeed, ordering an independent investigation provides a usefully restrained remedy — far less drastic than an annulment of the election, as the colourful complainant from Abaqulusi vainly sought.  The Court will be far more likely to accede to Mr Kham’s more limited request.  If there is any suggestion that the IEC’s own investigation was inadequate — and Wepener J’s dissent carefully argues that there is — then the Court will surely not stand by.

Leo Boonzaier

About Leo Boonzaier

Leo is an Editor for the African Legal Centre, and he reports on the Constitutional Court of South Africa. He has BSocSci and LLB degrees from the University of Cape Town and a BCL from the University of Oxford. He has worked as a visiting researcher at the Max Planck Institute for Private Law in Hamburg, Germany, and more recently as a law clerk at the Constitutional Court of South Africa. He is currently a doctoral student at the University of Oxford.