WALLIS AJ
of the Electoral Act, the chief electoral officer, who is the head of administration of
the IEC,41 must decide in which voting district a voter must be registered. It is the
IEC that makes the regulations governing the contents of the voters’ roll42 and
therefore determined that the roll need not contain the addresses of voters. It is the
IEC that determines the electoral timetable43 and is obliged to comply with it. It is the
IEC that determined the outcome of these by-elections in terms of section 64(1)(a) of
the Municipal Electoral Act and declared the results to the public.44
[48]
As each of these involved a decision by the IEC, either directly or through its
principal administrative officer, or under delegated powers,45 they were each subject
to review by the Electoral Court under section 20(1)(a) of the Commission Act, read
with section 78(1) of the Municipal Electoral Act. In exercising its powers the
Electoral Court was entitled to have regard to matters not known to the IEC at the time
they made their decisions and to replace those decisions with its own. That is what
the applicants asked it to do and it had jurisdiction to do so.
[49]
The IEC did not pursue with any vigour the argument that the form in which
the applicants couched the relief in the original and amended notices of motion
precluded the Electoral Court from reviewing these three decisions on the basis of the
IEC’s own investigations and, if appropriate, granting relief. In that it was correct, as
was the minority judgment in the Electoral Court, in holding that this put form above
substance.
As the history of the litigation outlined earlier in this judgment
demonstrates, the issues clarified themselves and transmuted over time.
The
Electoral Court had a large volume of evidence before it and on these issues there was
no dispute of facts. In those circumstances, the Electoral Court could, and should,
41
Section 12(2)(a) of the Commission Act.
42
In terms of section 100 of the Electoral Act the IEC made the Regulations Concerning Registration of Voters,
GN R 1340 GG 19388, 16 October 1998.
43
Section 20(1)(a) of the Electoral Act.
44
Section 64(1)(c) of the Municipal Electoral Act.
45
Sections 90 and 91 of the Municipal Electoral Act.
27