WALLIS AJ
[111] In concluding this assessment of a just and equitable remedy, I return to the
constitutional standard.87 It is that elections must be free and fair. The reason is to
protect the constitutional rights of voters and citizens who wish to offer themselves for
election. When an election is not free and fair these rights are materially infringed.
The Constitution points emphatically in the direction of the need to secure the
integrity of the electoral process. Here, the unexplained registration of voters who
were not entitled to vote corrupted that process. The failure to comply with the
electoral timetable in December 2013 hampered the participants in the by-elections in
their endeavours to canvass the support of their electorate.
[112] The absence of addresses in the segments of the voters’ rolls provided to the
candidates restricted their ability to identify and root out improper registrations as well
as their ability to canvass voters effectively. To say that this made no difference is a
matter for speculation. Even had the independent candidates lost, they may still have
been able to build an electoral base that would have led to success at a later stage.
Their ideas and arguments could have influenced the behaviour of elected
office-bearers thereafter. It is apparent that the IEC misconstrued its obligations in
material respects. This has to be corrected. Overall the balance must come down on
the side of electoral integrity. The outcome of these seven by-elections must be set
aside and the IEC must be directed to hold fresh by-elections. In terms of sections
25(3)(b) and 25(4) of the Structures Act there is a statutory obligation on the relevant
officials and the IEC to arrange for the by-elections to be held within 90 days of this
Court’s order. It is accordingly unnecessary to put the IEC on terms to arrange for the
by-elections to be held. The statutory period is definitive of their obligation.
[113] Nonetheless after the hearing, and as a precautionary measure, directions were
issued to the parties asking them to deal with any practical problems that might arise
87
Possibly by “a commodius vicus of recirculation”. See the opening sentence of James Joyce Finnegan’s
Wake.
57