WALLIS AJ democracy to this country is properly honoured when we conduct free and fair elections to determine the will of those who now have the right to vote. It is vital therefore that we are jealous of the privilege so hardly won. In determining a just and equitable remedy, where an election has been held not to be free and fair, these considerations must form the backdrop to the performance of the Court’s role as the guardian of the Constitution and the IEC’s performance of its obligation to ensure free and fair elections. [100] In many countries, where elections are conducted on a constituency basis the only ground for setting aside an election is proof that the exclusion of votes tainted by irregularity would mean that the result of the election could have been different. That was the basis upon which electoral petitions were disposed of under the pre-democratic dispensation, drawing upon precedents in electoral law from England.79 The Court’s sole task was to determine whether the irregularities would have affected the result of the election. In doing so it would examine and rule on disputed votes and then re-count the votes to see whether the outcome would have been any different. It is the basis for what is referred to in Canada as the “magic number” test, that being the number of irregular votes that a claimant must prove were admitted in order to have the result of an election set aside.80 But in South Africa that cannot be the sole determinant of just and equitable relief, where the elections conducted by the IEC were not free and fair and the constitutional right to participate in and contest those elections was infringed. In any event it is always difficult to predict what would have occurred had those electoral irregularities been absent. [101] Does that mean that the views of those legitimate voters who voted in these by-elections are irrelevant? Surely not. Elections are not solely or principally about councillors or candidates. They are primarily about the right of voters to participate in elections and thereby to have their say in how they are governed. The expression 79 Putter v Tighy 1949 (2) SA 400 (A) at 408 and Gerdener v Returning Officer and Another 1976 (2) SA 663 (N) at 673H-677E. 80 Opitz above n 75 at paras 71-73. 51