WALLIS AJ
day. They are not concerned with the matters that constituted the irregularities on
which the applicants relied.
[56]
Counsel pointed somewhat diffidently to section 47(1)(a) in Chapter 5, which
provides that a voter may only vote at the voting station in the voting district where
the voter is registered. But the complaint is that the voters who had been incorrectly
registered to vote in certain wards should not have been permitted to vote at all. That
is not a complaint falling under this section. Section 65 (1) was not therefore a route
that the applicants could, much less should, have followed to pursue their grievances.
That conclusion renders the argument about whether the incorrect registrations were
material to the outcome of the elections – a requirement for relief under section 65(1)
– redundant. The applicants’ right to relief is not constrained by the need to show that
the result of the election would have been materially different had the incorrect
registrations not occurred.
Were there electoral irregularities?
[57]
The answer to this question requires an examination of the obligations of the
IEC in regard to the electoral issues giving rise to the applicants’ complaints. In terms
of section 190(2) of the Constitution the powers and functions of the IEC must be
prescribed by national legislation.
And the need for such legislation is readily
apparent. For “the mere existence of the right to vote without proper arrangements for
its effective exercise does nothing for a democracy; it is both empty and useless”.51
[58]
The starting point is the preparation of the segments of the voters’ roll to be
used in each ward where a by-election was held.
This takes place against the
backdrop of the IEC’s own investigation after the December by-elections, which
revealed that of 3832 new registrations in nine affected wards, including the six with
which we are concerned, between 2000 and 2013, a total of 1040 involved the
registration of people in wards where they were not and had not been resident at the
51
New National Party above n 24 at para 11.
31