CASE
NO.: A 387/2005

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

REPUBLICAN
PARTY OF NAMIBIA 1^ST APPLICANT

CONGRESS
OF DEMOCRATS 2^ND APPLICANT

and

ELECTORAL
COMMISSION OF NAMIBIA 1^ST RESPONDENT

SWAPO
PARTY OF NAMIBIA 2^ND RESPONDENT

DTA
OF NAMIBIA 3^RD RESPONDENT

MONITOR
ACTION GROUP 4^TH RESPONDENT

NATIONAL
UNITY DEMOCRATIC

ORGANISATION
OF NAMIBIA 5^TH RESPONDENT

UNITED
DEMOCRATIC FRONT OF NAMIBIA 6^TH RESPONDENT

NAMIBIA
DEMOCRATIC MOVEMENT

FOR
CHANGE 7^TH RESPONDENT

SWANU
OF NAMIBIA 8^TH RESPONDENT

CORAM:
DAMASEB, J.P., MARITZ, J. et
MTAMBANENGWE, A.J.

Heard
on: 2005-03-03, 04 and 07

Delivered
on: 2005-04-26

REASONS
FOR ORDER OF THE COURT: DAMASEB, J.P., MARITZ, J. et
MTAMBANENGWE, A.J.: We have before us an election application
(“the application”) brought in terms of s 109 of the Electoral
Act, No. 24 of 1992 (“the Act”) in respect of the National
Assembly election that took place on 15^th and 16^th
November 2004 (“the election’). The application has been brought
by two political parties; namely Republican Party of Namibia and
Congress of Democrats. Eight Respondents have been cited in the
application. No relief is sought against the Second to Eighth
Respondents – all of them political parties which took part in the
election alongside the applicants.

The
applicants seek the following relief in their Notice of Motion:

“1. An
order declaring the election for the National Assembly held on 15^th
and 16^th November 2004 null and void and of no force and
effect and that the said election be set aside.

Alternatively
to prayer 1 above

2. An
order declaring the announcement of the results on 21^st
November 2004 of the National Assembly election held on 15^th
and 16^th November 2004 null and void and of no force and
effect.

3. Ordering
   the First Respondent to recount in Windhoek the votes cast in the
   said election as provided for in the Electoral Act No. 24 of 1992
   (as amended) and to allow the Applicants and other Respondents to
   exercise their rights in regard to such counting as provided for in
   the said Electoral Act.

   
   

In
any event

3. Ordering
   the First Respondent and any other Respondent(s) opposing this
   application to pay the costs thereof jointly and severally, the one
   to pay the other to be absolved.

   
   

3. Further
   and/or alternative relief.”

   
   

The
application is opposed by the First Respondent, the Electoral
Commission of Namibia – established in terms of s 3 of the Act.
Section 4(1) of the Act provides:

“Subject
to the provisions of this Act, the Namibian Constitution or any other
law, the Commission shall be the exclusive authority to direct,
supervise and control in a fair and impartial manner
any elections under this Act.” [Our emphasis]

At the
conclusion of the hearing on 7^th March 2005, we reserved
judgment. With the date on which the term of the
3^rd National Assembly of Namibia would expire in terms of
Article 50 of the Constitution barely 2 weeks away, a considerable
degree of constitutional urgency attached to the application,
requiring expeditious determination of the application. However,
given the wide front on which the validity of the election was being
attacked; the diversity of the objections raised and the complexity
of the factual and legal arguments advanced, the Court would not have
done justice to the issues and contentions raised and advanced if it
had to prepare its reasons in an overly hasty fashion. We, therefore,
albeit with a considerable degree of reluctance in view of the
importance of the matter, deemed it necessary to make known the
result of our deliberations and considered conclusions and to hand
down our reasons for those conclusions in due course.
Therefore, on 10^th March 2005, we made an order refusing
to avoid the election but declaring the announcement of the results
thereof null and void and ordered the first respondent to cause a
recount of the votes cast in accordance with the Act. We advised then
that our reasons would follow. What now follow are those reasons.

In paragraph
4 of the Founding Affidavit deposed to by Anna Carola Engelbrecht for
the applicants, the underlying thrust of the petition is set out
thus:

“The
conduct of elections is governed by the Electoral Act No. 29 of 1992
(sic) (as amended) ... As will become apparent from what is
stated hereinafter the provisions of the Act was as a rule rather
disregarded than honoured. In fact so widespread was the disregard
for the provisions of the Act that it is submitted that no election
as envisaged in the Act took place.” [It must be Act 24
of 1992]

Engelbrecht
deposes that the applicants’ respective Presidents sought certain
documentation from the First Respondent in the aftermath of the
election – in view of information that came to their knowledge
(presumably about irregularities in the election). Because the First
Respondent refused the information sought, she says, the applicants
then brought an urgent application. The application was opposed, but
Hoff J, on 16^th December 2004, granted an order in the
following terms:

“1. That
a final mandatory interdict is granted ordering respondent not later
than 14h00 on 16^th December 2004 to make available and
allow applicants to make copies of the following documents:

1. Those
   documents referred to in paragraphs 2(a) (i), 2(a) (ii), 2(a) (iii),
   2(a) (iv) and 2(a) (v)¹
   of applicants’ notice of motion; and

   
   

2. Those
   documents referred to in paragraphs 2(b) (i) and 2(b) (iii)²
   of applicants’ notice of motion.

   
   

2. That
the respondent to pay the costs of this application which costs shall
include the wasted costs occasioned by the postponement on 13^th
December 2004.”

Armed
with this order the applicants went to the offices of the First
Respondent. For the reasons explained in her affidavit, Engelbrecht
says, applicants decided “to focus on certain documentation only.”
These are the “Elect” 16, 17, 18, 30A and 30B forms devised and
used by the first respondent in the election.

We
will now proceed to summarise the complaints raised in respect of the
election in the founding papers.

Complaint
1: Absence of serial numbers on ballot papers

The
applicants aver that the ballot papers used in the election did not
bear serial numbers as is, in their view, required by s 74(2) of the
Act which provides as follows (in its amended form):

“For
the purposes of any election, the Director shall provide every
political party taking part in such election with –

1. a
   list containing the numbers allotted to the ballot boxes; and

   
   

2. a
   list containing the serial numbers of the ballot papers,

   
   

to
be used at each polling station.”

Engelbrecht
avers that the fact that the ballot papers did not bear serial
numbers was admitted by the Director of Elections of the First
Respondent (Philemon Kanime) who, when this was put to him, stated
that the Act does not require serial numbers on ballot papers and
that the counterfoils bore the serial numbers in terms of
regulations³
issued by the first respondent. She then continues:

“This
means that ballot papers can be substituted by unscrupulous
persons and this cannot be detected provided the substitutions
equal the number of ballot papers removed.” [Our
emphasis]

Immediately
after the passage quoted above, Engelbrecht continues:

“This
is not mere speculation as is evidenced by the ballot papers found
near Okahandja which is currently the subject matter of a police
probe. Ballot papers for the National Assembly election were found
in a riverbed near Okahandja subsequent to the elections. It was
clear that ballot papers had been burned. Of the 22 ballot papers
still intact to the extent that one could ascertain in whose favour
they were brought out all reflected votes in favour of opposition
parties, i.e. parties other than Second Respondent.”

She later
concludes on this point:

“The
net effect of the ECN’s non-compliance with the Act is that it is
impossible to state with any certainty that the cast ballot papers in
its possession consist only of ballot papers lawfully completed.”

The first
respondent’s response to these allegations is contained in its
answering affidavit deposed to by Mr Kanime in his capacity as
Director of Elections of the First Respondent. We shall continue to
refer to him as the “Director”.

The first
respondent admits that the actual ballot papers used in the election
did not bear serial numbers but disputes that the law requires that
serial numbers should be printed on ballot papers, considering that s
81(1), as read with s 130 of the Act, does not contain such a
requirement. The Director maintains that the form of a ballot paper
prescribed in the Regulations by the first respondent in terms of s
130 of the Act, does not require that the actual ballot papers bear
serial numbers and that what the first respondent instead prescribed
in the Regulations is that the counterfoil of the ballot paper should
bear a serial number. The Director concludes in respect of this
complaint that:

“…in
the absence of an attack on the relevant provision of s 130 of the
Act, the regulations and the specimen of the ballot paper and
counterfoil prescribed therein, the applicant’s claim are (sic)
unfounded.”

The Director
also points out that the applicants did not present evidence to show
instances were ballot papers were unlawfully substituted, and he
denies it ever happened.

In reply,
the applicants persist that the serial numbers must be printed on the
ballot paper and not on the counterfoil. This issue, therefore,
presents itself as a question of law to be determined with due regard
to the provisions of the Act (most notably sections 74(2), 81(1) and
130) and the constitutional principles relating to an election of
this nature. That question, we shall endeavour
to answer later in this judgment.

Complaint
2: Announcement of Contradictory of results

Engelbrecht
avers that the Director announced contradictory results of the
election. She alleges that four different results were in fact
announced on different occasions by the Director. She states that she
made a note of the results as announced by the Director on 21^st
November 2004. She attaches those to her papers and it reflects the
following:

These
results and tallies are identical to the ones announced by the
Director in his media release on the occasion of the official
announcement of the final results. The release also gives the
following tallies:

Total votes cast: 825 376

Votes Spoiled: 11 421

Valid
Votes: 813 955

These
tallies, Engelbrecht says, differ from those previously announced by
the Director.

The
Director then gave the following seat allocations in the media
release:

The Director
answers to this complaint as follows: The ballots cast in the
election were counted at the various counting centers by returning
officers who in turn forwarded the results to the “Central Election
Results Center” (the “Results Center”) at the first
respondent’s offices in Windhoek. There, the results were
unofficially published as soon as they were “verified”.
Eventually, the Results Center consolidated all the results received
from the returning officers and the Director officially announced the
result of the election as required by s 89 of the Act.

The Director
states that when he made the announcement on 21 November 2004, he
mistakenly stated that the total votes cast were 838 447 when he
should have stated them as 827 042. He explained that the total
votes rejected country-wide were 11 405 and, instead of those being
deducted from the total number of votes cast, they were mistakenly
added – thus giving the incorrect total of 838 447 announced. The
Director says that it was simply an error in arithmetic. He says
that the final and official results were eventually published on 3
January 2005 in the Government Gazette as follows:

The Director
concedes that when the results were announced as shown above, there
were 1682 votes which had not yet been allocated to the participating
political parties, but explains that it was because it was so agreed
with the participating political parties and that, in any event, such
omission did not make any difference to the number of seats allocated
to the different political parties.

The
applicants were unmoved by this explanation. They dispute the role
which the Results Center played in the process - saying that, in
terms of the Act, the returning officers ought to have sent results
to the Director and that the Results Centre had no business verifying
results. They also make the point that in many cases the results
forwarded by returning officers were changed after these were
discussed with the Results Center. They also make the point that the
political parties were not privy to the queries forwarded by or to
the Results Center and were only allowed access to incomplete results
after they had been verified by the Results Center – a statutory
function which, they say, does not fall within the competence of the
Results Center.

They also
maintain that they cannot on face value accept the results announced
because of the number of different results announced – a fact, they
maintain, which justifies a recount at the very least as this may
affect the number of seats allocated to participating parties.

Complaint
3: More votes cast than time would have allowed

Next,
Engelbrecht describes the procedure that took place in polling
stations during the election and concludes that it took about 3 – 5
minutes for one voter to be authenticated and to vote. As she puts
it:

“As
can be imagined, even without any hiccups this process took an
average of at least between three and five minutes. Yet when the
number of persons who voted is divided into time allowed for voting,
it is clear that many more people had voted than was physically
possible of doing so.”

She then
refers to a calculation done by Ms Schimming-Chase of the Second
Applicant to buttress this allegation. This averment is based on a
false premise: It assumes that only one voter was, or could be, in
the polling station at any given time during the 3 – 5 minute
period it was suggested it took for a voter to be processed. In
reality though, several other voters could be in the polling station
doing different activities associated with the voting process during
the 3 – 5 minute period it would take one voter to vote. Such
that, for example, when voter X was being issued with the ballot
paper to vote (the last stage of the process), voter Y would be
marked with “indelible” ink on one of his or her nails, and voter
Z would be busy having his voter card certified, etc, etc. Mr Frank
SC, appearing on behalf of the applicants, conceded this much during
argument and that should dispose of the need for this Court to deal
any further with this complaint.

Complaint
4: “Elect 16” accounts and verifications either not made
or not signed

Engelbrecht
next avers that “Elect 16” forms to which they (the applicants)
gained access as a result of the order made by Hoff J - forms whose
purpose is to account in terms of s 85(3) of the Act for ballot
papers issued to presiding officers - were either not verified, or
were inadequately verified, in conflict with s 87 of the Act. The
forms on which specific reliance is placed for this allegation are
attached to the founding papers as “D1 to D49”; but in argument
counsel also referred to “Elect 16” forms annexed in support of
other complaints.

On the face
of it “Elect 16” reads:

“Covering
Ballot Paper Account by Presiding officer (section 85(3) of the
Electoral Amendment Act, 1994”.

[It then has
the following provision towards the bottom:]

“I,
the undersigned, returning officer of the above mentioned
constituency do hereby report that I have verified the ballot paper
account handed to me by the presiding officer, and that the result of
such verification is that the said account are correct, except for
the following particulars:…………………………..

Date: ………
Place: …………… Returning Officer: …………….……”

Of the 49
“Elect 16’s” relied on by the applicant, only 28 of them relate
to the election in dispute. That much became common cause during
argument. And of these 28, 17 are signed by a presiding officer
only; 8 are not signed at all; 2 are signed by a returning officer
only and only one has been signed by both a presiding officer and a
returning officer. It falls to be mentioned that a number of the
forms are part of a series of returns or substituted and corrected
duplicates thereof. For purposes of further calculations and our
deliberations on the merits of this complaint hereunder, we shall
bear that in mind. The ones attached under annexure “D” which we
have taken into account relate to 10 197 ballot papers issued to the
following constituencies: Kongola, Berseba, Ogongo, Engela and
Gibeon.

Based on the
allegations initially made, Engelbrecht states:

“As
is evident from the said annexure “D” hereto, the non-compliance
was not an isolated case but widespread … In fact it would appear
that this was a widespread disregard to the provisions of the Act.”

The
respondent admits that some of the “Elect 16’s” had not been
signed either by the presiding officers, or by returning officers.
He avers that the majority of them consist either of draft working
documents or pages removed from a bundle of documents originally
properly arranged and stapled together, but selectively removed by
the applicants and are now presented in a manner (in this
application) that is misleading. He then proceeds to give specific
examples and, bolstered by supporting affidavits, endeavours
to explain some of the omissions away. As to the rest of the forms
complained about, he says:

“there
were few instances where the returns were not properly completed by
some of the presiding or returning officers. In those instances all
the votes cast were properly accounted for… the incomplete returns
did not violate the principles contemplated in Part 5 of the Act, in
terms of which the first respondent and the Directorate of elections
conducted the elections.”

The Director
avers further that the applicants failed to show that the
irregularities relied upon by them have or might have affected the
results of the election and that their candidates, or those of other
registered political parties would, or might have, been elected, had
the irregularities not taken place. He concludes that the applicants
failed to satisfy the requirements of sections 95 and 116 of the Act.

Replying to
these explanations, the applicants deny that the instances of returns
improperly completed are few and say that it was more the rule than
the exception and maintain that such non-compliance affected the
result of the election. Dismissing the Director’s explanation that
some of the documents were working documents, Engelbrecht points out
that it is of some significance that the Director fails to provide
the proper returns in his answer.

Complaint
5: “Elect 16” forms not completed

Engelbrecht
alleges that 7 returns: (E1 – E7), relating to 3 100 ballot
papers, are incomplete returns as none of the identifying details
relating to polling stations, constituencies and regions are provided
and that some are also not signed by the presiding officer, nor
verified by a returning officer.

Whereas the
Director admits that those details had not been entered on these
annexures, he maintains that the first respondent was and still is
able to allocate votes to constituencies in respect of certain
polling stations whose returns had not been adequately verified.
This, he says, was done by cross-referencing the ballot papers’
serial numbers recorded in Elect 16, Elect 21 and Elect 22 forms.

He adds that
those forms were in any event in envelopes and that they were clearly
marked with the names of the polling stations where they had been
used. He attaches photocopies of those envelopes as a bundle marked
annexure “PK18”.

The Director
then continues that-

“any
genuine omission on the part of the returning officer to endorse the
Elect 16 form as indicated by the Deponent, do not constitute a
violation of any of the provisions of the Act.”

As for
annexures E1, E2 and E5 to E7 - being documents emanating from
Tsaraxa-Aibes and DRC polling stations respectively according to the
Director - the deponent Engelbrecht remarks in reply that the
Director does not give any reasons for his view, considering that
support for it is not so self-evident by looking at those documents.
She points out that the Director failed to explain the origin of
annexures E3 and E4. She then makes the point that it is not
acceptable for the Director to simply say that they have in place a
system of tracking ballots which only they know how as those
participating in the election should also be able to do so and that
in any event such system must comply with the provisions of the Act.
The assertion that the first respondent could through a network of
electoral forms track all sensitive electoral material is denied in
any event by this deponent.

Complaint
6: “Elect 16” incorrect accounting and verification of
ballots

Next
Engelbrecht says:

“Furthermore
not in all cases where returns were done, albeit incompletely, the
figures add up correctly. As examples I annex hereto Annexures “G1
to G5”, copies of such returns which on their faces indicate that
more ballots were counted than ballot papers issued.”

It is now
common cause that of these annexures, only 2 relate to the present
election, and they account for 1500 ballot papers received and relate
to the Karibib and Elim constituencies. Therefore, we shall only
summarise the Director’s response to those.

The Director
disputes that annexure G1 is a “return” and avers that it is a
scrap paper used by the presiding officer to calculate results which
needed to be recorded on the Elect form. This much is confirmed by
the confirmatory affidavit of the presiding officer concerned – one
Mondias Karimubue.

The Director
admits the error on the face of the return marked “G2” and says
that if the “accounted ballot papers” are added together it gives
a total of 1000.

Complaint
7: “Elect 16” omitting serial numbers

Engelbrecht
then deposes that returns from the Karasburg and Windhoek-West
constituencies do not indicate serial numbers of ballot paper books.
This, she says, makes it impossible to scrutinize and verify the
results and “opened the door to undetected fraud.” These returns
account for 8300 ballot papers received.

As regards
the “Elect 16” returns from the Karasburg constituency, the
Director says that they were not official returns but the working
documents of one Isabella Meriam Swartbooi, a returning officer for
the Aussenkehr polling station in that constituency. Those returns,
as far as this election is concerned, relate to 5700 ballot papers
and are indeed signed by Swartbooi in her capacity as returning
officer. There is no signature of a presiding officer. It falls to
be noted that Swartbooi does not, with her confirmatory affidavit,
include the actual return she submitted.

The “Elect
16” return from the Windhoek West Constituency relates to 2400
ballot papers. The Director does not explain why the serial numbers
of those ballot papers have not been entered in this return and how
it could have been signed by the presiding officer and verified by a
returning officer in those circumstances.

Another of
those returns has no identifying details and refers to 2 100 ballot
papers received. It is not clear which election it relates to.
Similarly, the last of those returns also does not indicate which
election it relates to but is dated 16.11.04 (presiding officer) and
18.11.04 (returning officer) and relates to 1 200 ballot papers. The
Director does not comment on these two returns – he does not even
deny that they relate to the election.

Complaint
8: Ballot paper books with more than 100 ballot papers

Engelbrecht
then avers that in the previous application the Director had deposed
that ballot paper books contained 100 ballot papers each. This,
Engelbrecht says, is incorrect because annexures J 1 to J 5 evidence
ballot paper books containing ballot papers in excess of 100,
contradicting the version of the Director.

The Director
explains that through an inadvertent error of the printers, some
ballot paper books had one or two more than 100 ballot papers but
contends that this error did not affect the integrity or result of
the electoral process.

Complaint
9: Unsigned amendments of “Elect 16”

Engelbrecht
also complains that on a number of returns (annexures K 1 to K 6)
changes were made without any signature “verifying or relating to
such changes”. These returns relate to 5 705 ballot papers.
Annexures K 3 and K 5, it was later conceded, do not relate to the
election. The remainder involve 5 002 ballot papers.

The Director
does not take issue with the absence of verifying signatures on those
documents, but points out that errors made had to be corrected. The
officers, he says, are not lawyers accustomed to such formalities and
the shortcomings, in any event, did not affect the outcome of the
result of the election.

Complaint
10: Fourfold accounting for tendered ballots at Anumalenge

Next,
Engelbrecht complains that in respect of the Anamulenge constituency,
tendered ballots were accounted for four times. She points to “L 1
to L 5” to buttress this allegation. On this version 88 votes are
involved. The Director denies this allegation, saying that what the
applicants are relying on are simply 4 photocopies of the same
document.

Complaint
11: Double voting

Engelbrecht
then alleges that in some constituencies voters voted twice, once
normally and once by tendered ballot. She annexes “M 1 to M 20”
in support of this allegation. Those annexures are copies of “Elect
23” forms on which particulars of voters to whom tendered ballots
had been issued, were recorded. If the entries made are to be
believed, a number of tendered votes have been issued in certain
constituencies to voters registered in those (not other)
constituencies. On this version 410 votes are affected.

The Director
denies the allegation. He says that the error committed by the
presiding officers concerned is apparent: instead of writing the name
of the constituency where the tendered ballots were cast at the top
of the form, the polling officers wrote the names of the
constituencies where the voter casting the tendered ballot was
registered. He says this can be verified from the voters’
register.

Complaint
12: Unsigned “Elect 22” forms

Engelbrecht
then alleges that ballot papers distributed to polling stations were
not all allocated or signed for on receipt, making it impossible to
ascertain whether any irregularities occurred. She annexes “N 1 to
N 45” in support of this allegation. It must be noted in passing
that no averment is made that the annexures relate to the election in
dispute.

Complaint
13: Unsigned “Elect 21” forms

Engelbrecht
then alleges that in a number of constituencies, as evidenced in her
annexures “O 1 to O 13”, presiding officers did not sign to
acknowledge receipt of ballot paper books. She alleges that this
raises the question whether those books were in fact received. She
adds that without a cross reference to the returns in terms of
sections 85 and 87, there was no way of knowing how the ballots
concerned were accounted for. Here too, no averment is made that the
annexures relate to the election in dispute.

As for
annexures “N1 to N45” and “O1 to O 13” (this and the previous
complaint), the Director disputes they are forms required by statute.
He says that they have been used to keep track of “all sensitive
electoral material” and that the first respondent had systems in
place for that purpose. The first respondent thus disputes the
allegation that they were unable to reconcile electoral material. The
Director specifically disputes that ballot papers used could not be
accounted for even though the forms had not been signed.

Complaint
14: Disregard of tendered votes cast abroad and elsewhere

Engelbrecht
next alleges that the results of the election were announced without
taking into account the overseas votes; and that some tendered votes
were only forwarded to the Director subsequent to the announcement of
the results. These votes were thus not included in the final results
announced on 21 November 2004. It is common cause that the overseas
votes amount to 804, while the tendered ballots referred to total 504
votes, thus giving a total of 1 308 votes.

The Director
does not dispute that these votes were not included in the final
result announced on 21 November 2004. He points out, however, that
the applicants consented to the final results being announced without
the 804 overseas votes, and that the 504 tendered votes did not
affect those results. The outstanding foreign votes, the Director
says, were discussed at a meeting with representatives of political
parties and it was clear that these would not affect the allocation
of the number of seats in the National Assembly. He persists that
when the queries were finally replied to by the returning officers
affected, and the foreign vote finally allocated, there was an
“overall difference
of just 1 682 in respect of valid votes, and none of the political
parties gained or lost a seat, as a result of this difference.”

The
applicants dispute the Director’s assertion that they agreed to the
results being announced without the foreign vote and annex a letter
dated 20 November 2004 showing first applicant did not agree with the
course taken by first respondent. Engelbrecht says that the parties
were not told that the foreign vote was still outstanding.

Complaint
15: Failure to preserve original returns

It is
alleged that not all original returns are being preserved as
evidenced by the documents annexed as “Q 1 to Q 5” found at the
dump of the Government Garage.

The Director
disputes the allegation on which this complaint is based and points
out that the applicants have failed to show the circumstances in
which these annexures were found. He also says that Engelbrecht fails
to allege that she found the documents and for that purpose her
complaint amounts to inadmissible hearsay. He also denies that the
originals are not being preserved. Moreover, the Director also denies
that it has been demonstrated that the documents referred to in any
way affected the outcome of the election.

Complaint
16: Failure to refer to voters’ register at Omusati Project
polling station

It is said
that the Omusati Project polling station was so remote and isolated
that it could not have had access to a computer to gain access to the
electronic voters’ register. Yet, it is pointed out, that a high
number of tendered votes had been cast there. The applicants complain
that, in the absence of a computer there, the voters roll could not
be checked and, therefore, the inference must be drawn that either
double voting took place or that the ballot boxes were stuffed by
some unscrupulous person. The tendered votes referred to total 251.

The Director
firstly denies that Omusati Project is isolated and, secondly, he
says the allegations are speculative and have no factual basis.

Complaint
17: Failure to record voters’ registration numbers at
Okalongo

It is
alleged that in the Okalongo constituency of the Omusati region, 71
voters were allowed to vote without voters’ registration numbers
being recorded.

The Director
disputes that any voter voted without a registration card. He makes
the point that voter registration cards are issued with serial
numbers. He avers that although the presiding officer did not write
down the voters’ registration numbers on the Elect 23 form as he
was required to do, he instead wrote down the names of the voters on
that form. At the polls the registration numbers of those voters were
in any event recorded on the counterfoils of the ballot papers issued
to them and they could in turn be verified with the voters’
register, which the applicants have access to. The error is confirmed
by the affidavit of the returning officer concerned.

Complaint
18: Difference between reported and announced results

It is
complained that in the named constituencies, there is a difference
between the tallies forwarded by returning officers and those
announced by the first respondent. In respect of Ongwediva, it is
alleged, the difference is 367 while in respect of Oshakati it is
6039.

As for
Complaint 18, the Director avers that he does not know where
Engelbrecht got the numbers she refers to and says that he stands by
the results as announced and gazetted. The Director retorts that the
applicants were aware that the results announced as
an-ongoing-information-exercise during the counting process, were
provisional and subject to change as queries from the first
respondent to the counting centers were being replied to and that
some of the responses were only received several hours or days later.
This, he says, explains why results were sometimes different and
contradictory and concludes his response on this complaint as
follows:

“Due
to the low level and extent of inconsistencies and their statistical
insignificance, the first respondent consulted with the political
parties at the meeting held on 20^th November 2004, and
thereafter decided that the announcement of the results be made,
notwithstanding the outstanding queries.”

Complaint
19: Difference between account and verification at Walvis Bay

It is
complained that in the Walvis Bay Rural Constituency the return of
the presiding officer gives a total of 2900 ballot papers, while the
return of the returning officer totals 929 votes. It is alleged that
this shows that between the polling station and the return to the
first respondent, 1971 votes “went missing”.

The Director
disputes the calculations of the applicants and sets out the tally
given by the returning officer in which the ballots, the votes cast,
and those rejected, are set out. The Director admits though that the
returning officer in error failed to record the 956 tendered votes
(of which 6 were rejected) on the Elect 17 form but instead recorded
that on the Elect 30(b) form. The tendered votes, he says, were in
any event allocated to the political parties for whom the votes were
cast. The form erroneously completed is annexed to the papers in
substantiation of the explanation.

Complaint
20: Voting percentages in excess of 100%

An extract
is then provided from a local daily, Republikein 2000, showing that
the first respondent had issued results on the internet showing more
than 100% votes recorded in 10 named constituencies. It is then
alleged that in no constituency can more people vote than are
registered. In the same vein, another reference is made to a report
by a non-governmental organization known as “National Society for
Human Rights” pointing to what are referred to as ‘ridiculous
discrepancies’ in the final results allegedly published by the
first respondent on its internet website.

In response
to this complaint, the Director makes the point that applicants have
failed to have regard to the fact that on account of tendered votes
being cast in a constituency, and depending on the percentage
turn-out of the local voters, there is the potential that the
tendered votes may push the percentage of voters in a given
constituency to more than the number of voters registered there. The
Director denies what he characterizes as the “unsubstantiated”
allegation that in the 10 named constituencies which at the time when
the provisional results were announced showed more than a 100% voter
turnout as shown on the website, did not in the final results show
such a turnout. The Director attaches “PK 27”, which is an
extract of the final result in respect of the Windhoek East
Constituency (one of the 10 referred to by the applicants), to show
that it records a more than 100% percentage votes cast.

The Director
dismisses as speculation the statements attributed to the National
Society for Human Rights.

In reply,
the applicants do not accept the Director’s explanation of this
phenomenon on the basis of the tendered votes cast and says that, in
terms of the Act, tendered votes ought to have been accounted for in
the constituencies where the voters casting them were registered.
Furthermore, they maintain, no result of any constituency could have
been announced before all votes, including tendered votes, could be
accounted for in the constituency.

Complaint
21: Difference between results released and returns rendered

It is
complained that in Anamulenge, Elim and Tsandi constituencies, the
results released do not tally with the returns provided. The
difference, taking together all those constituencies, is a total of
2769 votes. No supporting document is annexed to buttress this
allegation. The Director disputes the allegations underpinning this
complaint and provides Annexures “PK 28”, “PK 29” and “PK
30” to gainsay the discrepancies alleged by the applicants in
respect of those constituencies.

Complaint
22: Swakopmund irregularities

Again
reference is made to the internet website of the first respondent in
relation to the Swakopmund constituency, which, it is alleged,
indicates that 16016 ballots were cast, while the returns (Elect 17)
indicate only 12549 valid votes, giving a discrepancy of 3457 votes.
The further allegation is made in respect of Swakopmund that the
valid votes cast (as per Elect 16) differs from that posted on the
first respondent’s website, by a margin of 1887 votes. It is also
alleged that in Swakopmund the returns show that 8771 votes were cast
as tendered votes, but that none of the returns in respect of such
tendered votes is signed by the returning officer.

As regards
this complaint, the Director avers that all ballot papers issued to
Swakopmund are accounted for. The Director also attaches the
confirmatory affidavit of the returning officer for that
constituency, one Vilho Kaulinge, who says that the Elect 32(b)-forms
in respect of the Swakopmund constituency represents the complete
picture of the total number of ballots cast. We note in passing that
the applicants’ allegation that not a single return is signed, is
not dealt with by the Director. He however annexes a “Summary of
Results of Ordinary and Tendered Votes” to show how the ordinary
ballots, tendered ballots, ballots rejected, ballots counted were
recorded. This “Summary” is however not signed by anyone.

Complaint
23: “Stuffing” of ballot boxes and election fraud

Many of the
applicants’ complaints are presented either as the causes of or as
the consequences of inferred ballot box-stuffing. As we shall soon
show, they allege that first respondent’s failure to print serial
numbers on the ballot papers allowed for unscrupulous persons to
substitute ballot papers without any mechanism to detect such an
irregularity. In support of the inference they seek to draw, they
cite as examples the excessive number of ballots cast within the
limited time allowed at certain polling stations; the excessive
voting percentages in a number of constituencies, the Okahandja
incident of discarded ballots cast in favour of minority parties,
etc.

The first
respondent firmly rejects these allegations as unfounded and
speculative. The Director emphatically denies the suggestions of
election fraud and widespread irregularities. To put the alleged
mistakes and irregularities into perspective, the Director explains
the manner in which the first respondent conducted the election and
makes reference to measures taken to ensure transparency and to
assure that the election was fair.

In this
regard he refers to the existence of a voters’ roll to which all
participating political parties have access. Participating political
parties were able to know from the voters’ roll, the details of all
Namibian citizens registered as voters. The Director then refers to
the fact that participating political parties, as registered
political parties, were entitled to appoint electoral agents who in
turn were entitled to attend, inspect and observe the premises where
ballot papers were printed; the actual printing of the ballot papers
(a process in fact observed by the political parties’ agents,
including those of the applicants); the emptying of all ballot boxes
delivered at all polling stations 30 minutes before voting commenced;
the inspection and sealing of ballot boxes at polling stations;
voting when it takes place at polling stations; the sealing and
placing of seals of their political parties when ballot boxes are
full, and the sealing of packets containing all ballot paper books
and other electoral material by presiding officers after voting had
stopped.

The Director
further avers that the participating political parties are also
entitled to appoint counting agents who in turn are entitled to be
present when ballot boxes are opened and to inspect seals affixed
thereon before the ballot boxes are opened for counting; observe the
actual counting of ballot papers by returning officers and to request
a recount of ballot papers whenever they are not satisfied with the
initial counting.

The Director
makes the point that the applicants were entitled to ensure that
their counting agents attended counting stations and he then invites
the applicants to indicate whether their counting agents attended
counting stations, and if not, why they chose not to be present.

The Director
points out that first respondent appointed presiding officers who
were responsible for the control of voting at polling stations. Also
appointed, were returning officers who were responsible for the
receipt of ballot boxes and other election material and equipment
from presiding officers after polling stations had been closed; and
verification of returns submitted by returning officers. Crucially,
such verification includes the number of ballot papers used and not
used at polling stations; the counting of ballot papers and the
rendering of returns and reports on the result of the election in
constituencies.

The Director
avers that all constituencies received, before voting commenced,
ballot boxes and ballot paper books with ballot papers. The serial
numbers of the counterfoils of ballot papers thus allocated were then
recorded by the electoral logistics personnel on “Elect 21”
forms. The Director avers that delivery of election material to
polling stations was escorted by members of the Namibian Police and
election agents of participating political parties were required to
keep records of serial numbers of ballot paper books delivered to
polling stations.

The Director
avers that when voting commenced, there were instances where ballot
papers ran out at some polling stations. In those cases, additional
ballot paper books with ballot papers would be provided from reserves
or from other polling stations which had more than enough ballot
papers. In those cases, “Elect 21” and “Elect 31” forms
would be completed.

The Director
avers further that during polling, the Namibian Police secured the
premises and election agents were also present as observers. After
polling, ballot boxes were sealed by presiding officers and election
agents or registered political parties present at polling stations
were entitled to affix seals of their political parties on the ballot
boxes containing ballot papers before these were transported to
counting stations. The Namibian Police were present at every polling
station to safeguard election materials and equipment, particularly
the ballot boxes with ballot papers.

The Director
then avers that at the counting venues, no ballot box with ballot
papers was opened until the presiding officer had reconciled the
ballot papers in the ballot box, the unused ballot papers and the
spoiled ballots. The reconciliation was recorded on the “Elect 17”
form.

The Director
points out that the counting of votes that commenced on 17 November
2004 was controlled by returning officers. Votes counted were
recorded per political party on “Elect 17” forms. Counting
agents were also informed about the final results before they were
announced and before they were transmitted to the Results Centre in
Windhoek.

At the end
of counting, ballot boxes containing used and unused ballot papers
were sealed by the returning officers, and by election agents who
chose to do so. The above process, the Director avers, shows that
the election was conducted in accordance with the principles in Part
V of the Act. The involvement of the Namibian Police, it is alleged,
displaces the allegation of systematic cheating and manipulation of
ballot papers and stuffing of ballot boxes.

The Director
says that “Elect” 21– 27 and 31 forms are administrative forms
not required by law – in the sense that they are prescribed
“returns”. They were, it is alleged, taken by the applicants
contrary to the order of Hoff, J. All applicants were entitled to in
terms of the Court’s order, the Director states, were official
returns contemplated in s85 of the Act. The Director further avers
that the applicants were given access to all statutorily required
returns but that they refused to copy all of them and instead
demanded access to other documents – presumably not covered by the
order. The Director states that Elects 16, 17, 18, 19, 20, 20(a),
30(b), 31(a), 32(a), 32(b) “are all returns designed to provide
accurate information as regards results sent from the counting
centers all over the country and received at the first respondent’s
Results Centre.”

He then
says:

“The
forms were designed to provide a comprehensive supplementary system
of checks and balances, so that minor mistakes contained in one or
other of them would be detectable from the remainder of the electoral
forms.”

Referring to
the “Results Centre” process, the Director states that:

“It
will require conspiracy on a grand scale to manipulate and rig
elections in the way and manner alleged by the applicants.”

He also
refers to the involvement of local and foreign observer missions,
who, he says, effectively gave the election process a clean bill of
health.

The Director
concedes that in the conduct of the election “minor human errors”
occurred but that these had no bearing on the number of seats
allocated to the participating political parties. He states further
that the applicants failed to make out a case that the totality of
ballots cast and counted are more than the ballot papers lawfully
issued to voters.

As far as
the ballot papers found at Okahandja are concerned, the Director says
that is now the subject of a police investigation. He refers to the
various confirmatory affidavits on the issue which point to the fact
that on 24^th November 2004, some election material fell
from a Government truck which was driving from Okahandja to Windhoek.
This material turned out to be about 22 ballot papers cast in favour
of only opposition parties. Suggestions are being made in some of
these confirmatory affidavits that those who came to handle the
ballot papers subsequent to them falling off the truck, deliberately
burnt some of them in order to strengthen the case of having the
election declared null and void. An official of the second applicant
has been implicated by one of the deponents to these confirmatory
affidavits as the person who instigated the burning of the election
material found in order to bolster the case, then impending, for the
setting aside of the election.

In the
replying affidavit filed on their behalf by Engelbrecht, the
applicants persist in their allegation of ballot stuffing and the
underlying cause thereof. Although they have not taken issue with
many of the material and essential features of the election as
explained by the Director, they seem to suggest that some of the
rights accorded to political parties to monitor and verify the
election process were more illusive than real. Without saying why,
Engelbrecht avers that in some polling stations party agents could
not enter the premises where the voting took place and were not able
to observe the voting. It is not clear to us if she is alleging that
the first respondent or anyone prevented them from exercising their
statutory rights. She also points out that lack of manpower and
financial resources resulted in the applicants being unable to assign
counting agents to all constituencies but that that did not absolve
the first respondent from completing returns properly. It has to be
said that she does not say at how many constituencies they were not
represented by counting agents in order to place the matter in some
perspective.

She also
says that the consultative mechanism referred to by the respondent
was not of any use and that no minutes were kept of meetings and all
the suggestions which the applicants made were ignored. As for the
elaborate process set out by the Director of the manner the election
was conducted, we discern in the reply that the deponent says that
most averments (it is not said which ones) are hearsay but that in so
far as the averments are intended to convey how the process should
have been conducted, it is not disputed.

Engelbrecht
also denies that any of the material relied upon by them in their
founding papers and obtained in consequence of the order of Hoff, J
are internal documents as stated by the Director in respect of some
of the material, but that even if they were only internal material,
the irregularities apparent from such documents characterize the
chaos and flaws associated with the process such that no reliance can
be placed on the results announced by the first respondent.

The deponent
says that the reports of the Observers constitutes inadmissible
hearsay, and, by reference to what is stated in the reports of the
observers, points out that they did not give an unqualified approval
of the process.

She also
disputes that the applicants went beyond the terms of the order made
by Hoff J in obtaining documents from the first respondent and states
that all documents they took were made available to them by officials
of first respondent.

The deponent
states that the absence of an electronic voters’ register made it
impossible for them, in the 5 days they had to check, whether the
same voters’ registration numbers or other personal details
occurred twice.

It is
evident from this summary of the applicants’ complaints and the
first respondent’s answers thereto that the litigants have
diverging views on an important question of law bearing on the
interpretation of s 74(2) of the Act and that a large number of
factual disputes have presented themselves. Mr Maleka SC, appearing
on behalf of the first respondent, refers to the interpretation
contended for by the applicants as “the centerpiece” of their
case. It is indeed the sole basis of the 1^st complaint
concerning the serial numbers of ballot papers and the Court’s
finding in that regard will also impact on the validity of a number
of other complaints, as we shall presently show. For this reason we
find it expedient to firstly deal with this legal issue and to
address the factual issues that the other complaints present on the
papers later in this judgment.

Legal
Issue: Serial numbers of ballot papers and the interpretation
of s74(2)

Central to the applicants’
contention that the election should be invalidated stands their
interpretation of s 74(2)(b) of the Act. They contend that, properly
construed, the provisions thereof require that the serial numbers of
the ballot papers should have been printed on the ballot papers and
not, as it were, on the counterfoils thereof. That interpretation
constitutes the basis of a two-pronged attack: The failure to print
the serial numbers on the ballot papers, they submit - (a)
constitutes a “non-compliance” with the provisions of Part V of
the Act on account of which the election should be avoided by the
Court under s95 of the Act and (b) has also opened the door to the
commission of an “irregularity” in the election process on
account of which the Court should set the election aside as provided
for in s 116(4) of the Act.

The “irregularity”
complained of relates to the alleged fraudulent “stuffing” of
ballot boxes alluded to under complaint 22: Without serial numbers
printed on the face of the ballot papers, the applicants argue,
unscrupulous persons intent on manipulating the results of the
election could, without fear of discovery in the subsequent process
of verification, remove ballots cast in favour of one or more
political parties from ballot boxes and substitute them for ballots
marked in favour of another. In support of this contention, they rely
mainly on 3 alleged occurrences: (i) that more votes were cast at
certain polling stations than time would have allowed for (complaint
3); (ii) that more votes were cast in certain constituencies than the
number of voters actually registered there (complaint 20) and (iii)
the so-called “Okahandja-incident”.

Without serial numbers printed
on the ballot papers, the applicants contend, it is not possible to
relate them to a particular polling station, constituency or region.
That, in turn, makes it virtually impossible to ascertain whether
ballot papers have been removed from or added to ballot boxes and
diminishes the mechanisms needed to effectively scrutinise and verify
the election process in the interest of transparency.

It is with these submissions in
mind that we shall analyze the merits of the applicants’ complaints
and assess their individual or cumulative impact, if any, on “the
result of the election” as contemplated in sections 95 and 116(4)
of the Act.

The essence of those
complaints, as we have pointed out earlier, lies in the
interpretation of s 74(2) supra of the Act and we shall deal
with that first.

Mr Frank submits on behalf of
the applicants that, properly construed, the words “serial numbers
of the ballot papers” used in paragraph (b) of that subsection
require by necessary implication that each ballot paper must have a
serial number printed on it. Whilst he readily concedes that serial
numbers have been printed on the counterfoils of the ballot papers as
prescribed by annexure 3 of the regulations, he contends that the
regulations are, to the extend of their inconsistency with the Act,
either ultra vires or tacitly repealed.

Mr Maleka takes issue with the
construction contended for by the applicants. He submits that the
applicants are seeking to read the phrase “serial numbers of the
ballot papers” as “serial numbers on the ballot papers” and
argues that the requirement contended for by the applicants is not
one of those expressly prescribed in s 81(2) of the Act. That
subsection is specifically designed to define the form and contents
of ballot papers. It provides:

“Every
ballot paper shall be in the form as prescribed and shall contain –

1. 
   in
   the case of an election on party lists –
   

   
   

9. 
   the
   names, in alphabetical order, of the political parties taking part
   in the election;
   

   
   

2. 
   the
   abbreviated name, if any, of each such political party;

   
   

3. 
   the
   distinctive symbol, if any, of each such political party; and

   
   

4. 
   the
   photo of the head of each such political party submitted in
   accordance with section 59(4) … and

   
   

(c) such
other particulars as may be prescribed.”

Mr
Maleka reasons that, in the absence of any express requirement that
the serial numbers of ballot papers should be printed on the face
thereof, the first respondent was entitled to prescribe by regulation
that they should be printed on the counterfoils thereof instead. In
response to the applicants’ contention that the regulations are
invalid to the extent that they require the serial numbers to be
printed on the counterfoils of the ballot papers and not on the
ballot papers themselves, he states that they are precluded from
raising that point in reply. If the first respondent had been alerted
to such an attack in the notice of motion or founding affidavit, it
could have made out a case in the answering affidavit that the Court
should not strike it as ultra vires but to rather make an
order in terms of Article 25(1)(a) of the Constitution.

We
pause here to point out that when the regulations were promulgated in
1992 and amended in 1994, s 74(2) was not yet part of the Act in its
current form. That subsection was initially repealed by section 30(b)
of the Electoral Amendment Act, 1994 and only inserted in its current
form by s 12(b) of the Electoral Amendment Act, 1998. The first
respondent was therefore acting entirely within its vires
when, in 1992 and 1994, it prescribed in annexure 3 of the
regulations that the serial numbers should be printed on the
counterfoils of ballot papers. What falls to be considered is the
effect, if any, of the 1998 introduction of s 74(2)(b) on the
contents of a ballot paper and the regulations which had been made in
that regard.

Mr
Frank contends that if the Legislature intended the serial numbers to
be printed on the counterfoils, it would have used the words “serial
numbers of the counterfoils of the ballot papers” instead of
“serial numbers of the ballot papers”. He points to other
provisions of the Act from which it is apparent that Parliament was
clearly aware of the difference between a “ballot paper” and the
“counterfoil of a ballot paper”. He refers, for example, to the
wording of s 82(9) of the Act which requires of a presiding or
polling officer to “enter the voter registration number of
the voter in the ballot paper book on the counterfoil of a ballot
paper” (see: par (a) thereof) and to “detach such ballot paper
from its counterfoil and deliver it to the voter” (par (b)
thereof). Other similar examples are to be found in sections 83(c)
and 85(1)(b)(iii). The first respondent was also
aware of the statutory distinction: that much is clear from the
different forms for ballot papers and their counterfoils prescribed
in the regulations. In that context, it is of some significance that
the regulations label the number to be printed on the counterfoil of
the ballot paper as the “serial number of counterfoil” and does
not refer to it as the “serial number of the ballot paper”.

There
is some authority for the contention that a difference in the
phraseology employed by the Legislature in the same statute (e.g.
between “ballot paper” and “counterfoil of the ballot paper”)
prima facie justifies an assumption that it imports a change
in the intention of the Legislature (c.f. Shalom Investments (Pty)
Ltd and Others v Dan River Mills Incorporated, 1971 (1) SA 689 (A) at
701C; Port Elizabeth Municipal Council v. Port Elizabeth Electric
Tramway Co. Ltd., 1947 (2) SA 1269 (AD) at 1279, and R. v.
Sisilane, 1959 (2) SA 448 (AD) at 453F).

This
is, however, only one of the presumptions employed as an aid in the
construction of statutes and, as Ogilvie Thompson JA said in R v
Shole, 1960 (4) SA 781 (A) at 787B “…a change in wording does
not always and inevitably denote a change of intention (see Craies
Statute Law, 5th ed. pp. 135 - 136)”. Devenish, Interpretation
of Statutes, (1^st ed., 2^nd imp., 1996)
points out at p 218, correctly so in our view, that the decisive
factor is, as always, the intention of the Legislature and that
contextual interpretation takes precedence over the presumption of
consistency in the construction of the same word in different parts
of a statute (c.f. S v ffrench-Beytagh (1), 1971(4) SA 333 (T)
at 334) and the converse of that presumption - on which Mr Frank
relies.

When
assessing the import of the distinction drawn in the statute between
the phrases “ballot paper” and “counterfoil of the ballot
paper”, it is vital to consider the ordinary meaning of the word
“counterfoil”: it is defined in “The Shorter Oxford English
Dictionary on Historical Principles ” (Vol 1, 3^rd
ed., 1990 reprint) as “a complimentary part of a bank cheque,
receipt, or the like, containing the particulars of the principal
part, to be retained by the person who gives out that part”.
Three things characterise a counterfoil according to the definition:
The counterfoil is a complimentary part of the principal
document; it contains the particulars of the principal part
and is to be retained by the person who gives out the principal part.
From these characteristics, the function of a counterfoil is at once
apparent: it is retained as a complimentary part of the principal
document by the person who has issued the latter as a record
containing particulars of the principal document. So, for example, in
the case of bank cheques issued, may it contain particulars of the
cheque number, the date thereof, the name of the drawee and the
amount for which it has been issued (c.f. Law Society of the Cape
of Good Hope v C, 1986 (1) SA 616 (A) at 624H and 626B); in the
case of a postal order counterfoil, it may contain the postal order
number and amount thereof (c.f. S v Williams, 1965 (2) SA 567
(C) at 567G) and in the case of a driver’s licence counterfoil, it
may contain the driver’s licence number and particulars of the
person to whom it has been issued (c.f. S v Jass, 1965 (3) SA
248 (E) at 249F).

The complimentary nature of a
counterfoil as part of a ballot paper becomes all the more clear when
one considers the information to be printed (the serial number of the
counterfoil, the nature of the election, the name of the constituency
and the date of the election) and noted (the registration number of
the voter) thereon in terms of Annexure 3 of the regulations.

The Legislature, it seems to
us, was alert to the fact that, by definition, a counterfoil is a
complimentary part of the principal document (in this case, the
ballot paper). This much is apparent from the corrections brought
about by s 36(h) of the Electoral Amendment Act, 1994 to the earlier
formulation of s 82(9)(a) and (b) of the Act. Before their amendment
those paragraphs required of a presiding or polling officer to –

“(a) enter
the registration number of the voter on the counterfoil on the ballot
paper book;

(b) tear
out a ballot paper from the ballot paper book marked on the back with
the official stamp;”

The
phrase “counterfoil on the ballot paper book” in paragraph (a)
was, even on a beneficial construction, not a clear reference to the
“counterfoil of the ballot paper”. Similarly, it was not clear
from para (b) whether the counterfoil, being a complimentary part of
the ballot paper, should also be torn out of the ballot paper book.
Hence, by the substitution of those paragraphs in 1994, the
Legislature made it clear in paragraph (a) that the presiding or
polling officer must “enter the voter registration number of
the voter in the ballot paper book on the counterfoil of a ballot
paper” and, in paragraph (b), that he or she must then “detach
such ballot paper from its counterfoil and deliver it to the
voter” (our emphasis). The words in italics (and in
particular the use of the word “its” in paragraph (b)) make it
clear that the counterfoils are, correctly so, considered by the
Legislature as complimentary and detachable parts of the ballot
papers in a ballot paper book.

Inasmuch as the counterfoil is
part of the ballot paper to which it is attached – albeit a
complimentary and detachable part – the particulars to be printed
and noted thereon are, according to the ordinary grammatical meaning
of the word “counterfoil”, “particulars of the principal
document”, i.e. the “principal document” being the detachable
ballot paper to be handed over to the voter. It follows as a matter
of logic that the serial numbers printed on counterfoils of ballot
papers are therefore “the serial numbers of the ballot papers”.
This phrase is the one used in s 74(2) of the Act and, for the
reasons given, it was not necessary for the Legislature to use the
phraseology suggested by the applicants.

What is more, we find strong
support for this construction upon a contextual approach to the
interpretation of the phrases “counterfoil of a ballot paper” and
“ballot paper”.

It is not in issue that the
secrecy with which every enfranchised voter should be allowed to cast
his or her vote is one of the most fundamental principles of the
election process written into the provisions of Part V of the Act.
This is to be expected in any democratic society. The guaranteed and
demonstrable secrecy of the ballot is an indispensable prerequisite
for the free election of the people’s representatives in a
democratic state. Without the knowledge that his or her vote will be
cast and kept in secret, the freedom with which a voter will exercise
his or her fundamental democratic right to participate in the conduct
of public affairs through elected representatives is likely to be
compromised. Without the knowledge and guarantee of secrecy, real and
imaginary fears of retribution, discrimination and rejection are
likely to influence the political choices of enfranchised voters.
Instead of the ballot being an instrument of political freedom, it
may become one of oppression if the principle of secrecy is violated:
thereby negating the very reason and essence of its existence.

After
all, the historical context in which the word “ballot” found its
way into the English language implies an element of secrecy in the
vote cast. The history and meaning of the word was discussed by the
Australian Federal Court in the matter of Len Colbung; Dennis
Eggington; Terrence Garlett; Robert Isaacs; John Kalin; Larry
Kickett; John Mcquire; Jim Morrison; Frank Nannup; John Pell; Neil
Phillips; Spencer Riley; Rob Riley; Jack Walley; Gloria Walley; Ted
Wilkes; Laurel Winder and The Australian Electoral Commission NO.,
(1992) 107 ALR 514 at par [27]:

“The
word ‘ballot’ derives from the Italian ‘ballotta’ meaning a
round bullet or little ball. Ballotta was used in mid 16th century
Italy to designate a system of secret voting using coloured balls,
beans or other objects - Fredman - The Australian Ballot: The Story
of an American Reform (1968) Mich. State U.P. It also described the
objects used in the system.

In
its original ordinary English meaning it imported the notion of
secrecy being variously defined in the Oxford English Dictionary as
‘a small ball used for secret voting; hence by extension a ticket
or paper so used’ and ‘the method or system of secret voting,
originally by means of small balls placed in an urn or box; an
application of this mode of voting; also the whole number of votes
thus recorded’. The word ‘ballot’, it has been said, implies
secrecy of voting although ‘sometimes used loosely and perhaps
incorrectly - in a more general way as indicating a method of voting
by written or printed slips of paper as contrasted with open voting’
- The Maple Valley Case (1926) 1 DLR 808 at 813”

One
of the more profound lessons in democracy learnt from history is that
a vote, other than by secret ballot, leaves itself open to abuse.
Commenting on parliamentary elections conducted more than a
century ago in Britain by poll whereby a voter's name, qualification
and vote were recorded in a book open for public inspection, Lord
Denning M.R. described the result thereof as follows in Morgan v
Simpson, (1974) 3 All ER 722 at 726:

“Such
was the method of election at common law. It was open. Not by secret
ballot. Being open, it was disgraced by abuses of every kind,
especially at parliamentary elections. Bribery, corruption,
treating, personation, were rampant.”

The
freedom of choice which must permeate all procedures devised for the
election of parliamentary representatives is also echoed in the
preamble to the Constitution (“Whereas the said rights are most
effectively maintained and protected in a democratic society, where
the government is responsible to freely elected representatives of
the people, operating under a sovereign constitution and a free and
independent judiciary”) and entrenched in Article 17(1)
(“freely chosen representatives”) thereof.
Without adequate balloting procedures to observe secrecy and a
public awareness that the person or party voted for will remain an
inviolable secret of every voter, an election is not truly free.
Thus, the concept of secrecy - as far as the ballot paper is
concerned - is pivotal to a free election and, as such, constitutes a
principle which outweighs many - if not most - of the other contained
in Part V of the Act.

That principle will be negated
if the same serial number appears on both the ballot paper and its
counterfoil: It will theoretically be possible to determine exactly
how every voter has voted if regard is being had to the registration
numbers of voters noted on the counterfoils. That much is common
cause. Would it be different if s 74(2) of the Act falls to be
interpreted - as the applicants contend – that the serial numbers
must be printed on the ballot papers and not on the counterfoils? We
think not.

Ballot papers are bound in
ballot paper books. In the interest of transparency and
accountability, the serial numbers of all the ballot papers in those
books are recorded in relation to each polling station on lists
provided to every political party taking part in the election (s
74(2)(b)); they are accounted for by the presiding officers receiving
them at such polling stations (s 85(3)) and verified by returning
officers at counting stations (s 87(2)(a)). Moreover, the
registration number of each voter to which a ballot paper is issued,
must be noted on the counterfoil of that ballot paper (s 82(9)(a)).

If
the serial numbers of ballot papers are printed on the ballot papers,
it will be easy to determine for which party the last voter at a
particular polling station has voted, i.e. by simply looking at the
number of the first remaining ballot paper in the book and finding
the ballot paper in the ballot box with a serial number immediately
preceding that one. So too, would it be possible to determine for
which person the second last person had voted for …and the one
before that … and, eventually, by a process of counting backwards,
how every person had voted at a particular polling station. This is
perhaps best illustrated by an example: If the first remaining ballot
paper in a ballot paper book is numbered 1050, the registration
number of the 49^th last person who had voted would appear
on the first counterfoil of the ballot paper book containing serial
numbers 1001 – 1100 and the serial number on the ballot paper
issued to him or her would therefore be 1001; the voter’s
registration number of the second last person who had voted would
appear on the second last counterfoil from which a ballot paper had
been detached and the serial number of the detached ballot paper
would be 1048, etc.

The determination of a voter’s
vote by the process of counting backwards and cross-referencing
voter’s registration numbers with the serial numbers of ballot
papers will be so much easier if one bears in mind that each ballot
paper book contains a specific number of ballot papers - with a few
exceptions, all the ballot paper books used in this election
contained 100 ballot papers – and that the serial numbers of the
ballot papers in different books handed to presiding officers also
follow in sequential order on one another (e.g. if 3 ballot paper
books are handed over to a presiding officer, the serial numbers of
the 300 ballot papers contained therein are likely to follow in
sequential order, i.e. from 1001-1100, 1101-1200 and 1201-1300).

In short, a person in
possession of a ballot paper book will be able to determine and note
the serial number of each ballot paper on the counterfoil thereof
and, by simply looking for the ballot paper with that serial number
in the ballot box and comparing it with the voter’s registration
number on the counterfoil, will be able to determine the identity of
the voter from the voters’ register and see which party he or she
has voted for.

The interpretation contended
for by the applicants therefore has the capacity to destroy the
secrecy of the ballot and to undermine a principle which constitutes
an essential element of a free election. As we have illustrated
earlier, without adequate balloting procedures in place to observe
and protect the secrecy of every vote cast, an election of this
nature would not be free. To suggest that by the 1998 amendment of s
74(2) Parliament sought to destroy the principle of secrecy, which it
has previously so carefully woven into the cloth of election
procedures devised in Part V of the Act, is untenable. Such an unjust
– if not absurd – result could not have been countenanced, much
less intended, by Parliament.

In the premises, we reject the
applicants’ contention that s 74(2)(b) of the Act requires that the
serial numbers of ballot papers must be printed on the face of ballot
papers to be issued to voters. By causing the numbers of the ballot
papers to be printed on their counterfoils, the first respondent
acted both within the letter and “spirit” of the Act. It follows
from this finding that the absence of printed serial numbers on the
detached ballot papers issued to voters does not constitute a
“mistake or non-compliance” on account of which the Court may set
aside the election under s 95 of the Act. The applicant’s attack on
the validity of the election brought on that premise must therefore
fail. So too, must the applicant’s contention that respondent’s
alleged “non-compliance” with s 74(2)(b) has allowed for the
perpetration of an “irregularity” (such as the stuffing of ballot
boxes) envisaged by s 116(4) of the Act.

What remains, however, is for
the Court to consider whether, quite apart from the rejection of the
applicants’ contentions as regards the interpretation of s 74(2),
any stuffing has been established as a matter of fact on the evidence
and, if so, whether it constitutes an irregularity which affected the
result of the election. That is but one of the many issues that
arises from the affidavits that we shall shortly discuss. Before we
do that though, we shall pause to reflect on the circumstances under
which the Court may invalidate the election and the burden of proof
which each of the parties bear in that regard. With that in mind, we
shall turn to the approach which the Court will adopt in deciding the
disputes of fact and analyze the merits of the applicants’
complaints and their entitlement to the relief sought.

Election Applications and
the Burden of Proof

Section
109 of the Act allows for an election application to be brought upon
either one or both of the following complaints: in the case of an
undue election of any person to the office of
President or as any member of the National Assembly or a regional
council or local authority council or in the case of an undue return
in any of those elections. The factors which may give rise to the
complaint, whether it is one about an undue election or one about an
undue return, are the same, i.e. “by reason of want of
qualification, disqualification, corrupt and illegal practice,
irregularity or by reason of any other cause whatsoever”.

What
is of significance though, is that in terms of s 116(4) of the Act,
the Court may not set aside an election referred to in s 109 on
account of any of those factors unless its impact – either
singularly or collectively with others - is so substantial in the
circumstances of the case that it can be said to “affect the result
of the election”. As such, s 116(4) gives effect to the
longstanding approach that an election of this nature is not
inherently so fragile that it may be avoided for the slightest of
reasons, but that it is robust enough to withstand attack unless
shown to be so significantly flawed that its result is affected.
Expounding the underlying reasons for this approach, Wessels JA said
in De Villiers v Louw, 1931 AD 241 at 268:

"When,
however, the election is sought to be set aside, the interest is as
much that of the constituency as that of the parties to the election.
If an election is set aside the whole electorate is affected,
business is dislocated, expenses are incurred by the electors going
to the poll, the business of hotels and public-houses is interfered
with, and generally speaking a large number of people are greatly
inconvenienced. It has therefore been the policy of the law as shown
in s 61 (s 13 of the English Ballot Act), and has always been the
practice of the English Courts not to disturb an election when it is
clear that the persons who voted were entitled to vote, that no one
entitled to vote has been debarred from voting, and that all the
requirements of the Electoral Act have been substantially complied
with.”

With the phrase “result of
the election” is meant, not the majority of any particular party or
candidate, but the representation accorded to a person or party as a
consequence of the election (See: Mtoba and Others v Sebe and
Others, 1975 (4) SA 413 (OK) at 421H and the authorities
referred to).

What
constitutes a “qualification” or a “disqualification” is
defined elsewhere in the Act (compare e.g. sections 54, 61, and 64 in
respect of candidates for presidential elections, regional council
elections and local authority elections; s13 in respect of persons
entitled or disqualified to be registered as voters; s 39 dealing
with the registration of political parties, etc.) So too, does the
Act define a “corrupt and illegal practice” (c.f. sections 103 –
108 dealing with undue influence, bribery, impersonation, treating
and the corrupt procurement or withdrawal of a candidature).
Precisely which acts or omissions will constitute an “irregularity”
or “other cause” is left for the Court to determine, regard being
had to the values articulated and the principles entrenched in the
Constitution, the provisions of the Act, the dictates of the common
law of Parliament relating to elections generally (c.f. Mota en
Andere v Moloantoa en Andere, 1984 (4) SA 761 (O) at 803H-I) and
the circumstances of each case. It is practically impossible to
furnish an all-inclusive list thereof – lest we restrict by lack of
foresight those which others wiser than us might have contemplated.
It will be more prudent, it seems to us, to give content to those
phrases by the careful development of case law around the
requirements of free and fair elections in a democratic society.
Where relevant, we shall refer to some of those irregularities or
other causes later in this judgment.

One of them though, is
pertinent to our discussion of the burden of proof in this
application and we shall refer to it immediately. Section 95
contemplates in the clearest of terms that an election may be set
aside “by reason of any mistake or non-compliance with the
provisions of” Part V of the Act unless it appears to the Court
“that the election in question was conducted in accordance with the
principles laid down therein and that such mistake or non compliance
did not affect the result of that election”. A “mistake or
non-compliance” of the nature and in the circumstances envisaged by
s 95 would therefore fall within the parameters of the phrase “or
by reason of any other cause whatsoever” on account of which a
person may complain of an undue election or undue return under s 109
and on account of which a Court may set aside an election under s
116(4) of the Act.

The
interrelationship between sections 116(4) and 95 of the Act and the
effect of its formulation on the question of onus is perhaps
better understood by comparison between the two. Section
116(4) of the Act provides:

"No
election referred to in section 109 shall be set aside by the court
by reason of want of qualification, disqualification, corrupt and
illegal practice, irregularity or by reason of any other cause if it
appears to the court that any such want of qualification
disqualification, corrupt and illegal practice, irregularity or other
cause did not affect the result of that election”.

It
is common cause between counsel for the litigants that the applicants
bear the overall onus to satisfy all the requirements of s
116(4) on a preponderance of probabilities to be successful in the
application. This approach accords with the fundamental principle
governing the incidence of the onus: semper necessitas probandi
incumbit illi qui agit (D. 22.3.21). It requires of a litigant
claiming something from another to satisfy the Court that he or she
is entitled to it (See: Kunz v Swart and Others, 1924 AD 618
at 662-3; Pillay v Krishna and Another, 1946 AD 946 at 951;
Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706
(A) at 711E and Neethling v Du Preez and Others; Neethling v The
Weekly Mail and Others, 1994 (1) SA 708 (A) at 760H). Not only
will the applicant in an election application under s 109 be required
to adduce sufficiently credible and reliable evidence to establish on
a balance of probabilities the “want of qualification,
disqualification, corrupt and illegal practice, irregularity” or
other cause relied on, but also that the impact of those factors have
been so substantial in the circumstances that they affect the result
of the election.

The
grounds on which an election may generally be avoided under s 116(4)
notwithstanding, the Legislature deemed it necessary to differentiate
between those arising from the conduct of the election which
are within the competence, direction and control of the first
respondent under Part V of the Act and those falling outside the
scope thereof. Part V of the Act deals in great detail with the
manner in which the first respondent is required to direct, supervise
and control elections under the Act. It provides in broad terms for
the nomination of candidates; the appointment of returning officers,
presiding officers and counting officers; their powers, duties and
obligations and the manner in which they are required to exercise
them; the duties, powers and obligations of the Director in the
conduct of elections under the Act; the provision of election
material and equipment; the manner of voting at polling stations; the
determination and announcement of results and the like. These
provisions are designed to give effect to a number of important
principles incorporated in the statute to guarantee free and fair
elections by secret ballot in accordance with transparent and
verifiable procedures. The Legislature entrusted the first
respondent with the power to direct, supervise and control every step
of the elections either directly or indirectly (through the Director
and the election officials appointed for that purpose). But the
corollary of that power is the duty and responsibility to ensure
compliance with the provisions of that Part of the Act. The
consequences of any mistake under or non-compliance with that Part
was afforded special attention and treatment by the Legislature in s
95 of the Act. It provides:

"No
election shall be set aside by the Court by reason of any mistake or
non-compliance with the provisions of this Part if it appears to that
Court that the election was conducted in accordance with the
principles laid down therein and that such mistake or non-compliance
did not affect, the result of that election”.

If
compared to s 116(4), it is at once clear that not only does s 95
differ in its formulation, but also in the curative provisions
contained therein. More important for purposes of this discussion
though, is its legislative history and Parliament’s deliberate
re-enactment thereof in materially the same form as it appears in
legislation interpreted and applied in other jurisdictions for more
than a century.

As
far as we have been able to establish the wording of the section
finds its origin in 13 of the Ballot Act promulgated in England
during 1872, which reads:

"No
election shall be declared invalid by reason of a non-compliance with
the rules in the First Schedule to this Act, or any mistake in the
use of the forms in the Second Schedule to this Act if it appears to
the tribunal having cognizance of the question that he election was
conducted in accordance with the principles laid down in the body of
this Act, and that such non-compliance or mistake did not affect the
result of the election."

It
has since been copied without any material changes in such language
as s 59 of Schedule II to the Transvaal Constitution Letters Patent,
1906 (quoted in Nicholson v Van Niekerk, 1915 TPD 581 at 600)
and s 79 of Act 9 of 1892 (Cape). After South Africa had become a
Union, it was again incorporated as s 61 of Act 12 of 1918 and then
as s 91 of the Electoral Consolidation Act, 46 of 1946 in the
following terms:

"No
election shall be set aside by the court by reason of any mistake or
non-compliance with the provisions of this Chapter, if it appears to
the court that the election was conducted in accordance with the
principles laid down therein, and that such mistake or non-compliance
did not affect the result of the election."

It
will be noticed immediately that except for the use of the word
“that” before the word “court” in the second line and the
word “that” before the last word “election” in the section,
it corresponds in all other respects with s 95 of the Act. Reading as
it did at the time, the interpretation of s 91 of Act 49 of 1946
received judicial attention in the matter of Putter v Tighy,
1949 (2) SA 400 (A). After an analysis of English authorities on s 13
of the Ballot Act, most notably Deans v Stevenson, 19 S.L.R.
794 and Woodward v
Sarsons (L.R. 10 C.P. 733 at 750 - 751), Tindall JA said at 408:

"Reverting
to our sec. 91, in my opinion, its true interpretation is that which
I have indicated above, namely that where there has been a mistake,
or even a non-compliance with Chapter III amounting to an
infringement of a principle laid down by that chapter, the Court
shall not set aside the election if it is satisfied (1) that the
election as a whole was substantially conducted in accordance with
the principles laid down in Chapter III and (2) that such
non-compliance did not affect the result of the election. On this
view of sec. 91 the question whether the mistake or non-compliance is
sufficient to prevent the curative provision from operating becomes a
matter of degree.”

and
further on 410 when dealing specifically with the burden of proof:

“Passing
to the onus of proof under sec. 91, it seems to me clear that, once
it has been shown by the petitioner that a non-compliance with the
provisions of Chapter III has occurred, the onus lies on the
respondent to prove that both conditions mentioned in the curative
section have been satisfied."

Section
91 was subsequently copied in s 36 of the Qwaqwa Election
Proclamation R204 and discussed by Steyn J in Mota en Andere v
Moloantoa en Andere, 1984 (4) SA 761 (O). At p 432E-F the learned
Judge approved the interpretation given to the similar formulation in
the 1946-Act by Tindal JA in Putter v Tighy (supra). Section
91 was subsequently substituted by s 113 of Electoral Act, No. 45 of
1979. Referring to that section in South West African Peoples
Democratic United Front en 'n Ander v Administrateur-Generaal,
Suidwes-Afrika, en Andere, 1983 (1) SA 411 (A) at 432E-F in the
context of a dispute arising from an election under the Party List
Election Proclamation, AG 54 of 1980, Jansen JA again endorsed the
interpretation in Tighy’s-case. In considering the similarly worded
provisions of Regulation 47 promulgated under the Community Councils
Act, 125 of 1977 in Scott and Others v Hanekom and Others,
1980 (3) SA 1182 (C), Marais AJ first noted that it read identical to
the curative provision in s 91 of the Electoral Act, No. 46 of 1946
considered in Tighy’s-case and, pointing out that its scope and
impact has been considered on a number of occasions by the Courts, he
accepted that the following propositions must be regarded as settled
law (at 1198E-H):

“(1) The
onus of proving that a mistake or any non-compliance with the
relevant legislative provisions occurred lies upon the party who
challenges the validity of the election.

(2) Once
he has discharged this onus, the onus rests upon those who would
maintain the validity of the election to prove both that, despite the
mistake or non-compliance, the election was conducted in accordance
with the principles laid down in the legislation and that the mistake
or non-compliance did not affect the result.

(3) Whether
or not any particular mistake or non-compliance which may have
occurred is a breach of principle which would render the curative
provision inapplicable and make reliance upon it futile is a question
of degree. Putter v Tighy 1949 (2) SA 400 (A); Mtoba and
Others v Sebe and Others 1975 (4) SA 413 (E) ; Gerdener v
Returning Officer and Another 1976 (2) SA 663 (N) ; Morgan v
Simpson (1974) 3 All ER 722 (CA).”

Compare
also Nkosi and Others v Khumalo and Others, 1981 (1) SA 299
(W) at 304A-C.

Given
the long line of authorities interpreting other similarly worded
enactments over more than a century in other jurisdictions, the
inclusion of s 95 in part V of the Act is not without significance
and purpose: it is intended to maintain official accountability for
due compliance with the statutory requirements of the election
mechanisms and procedures whilst, at the same time, maintaining
resistance against invalidation on unsubstantial grounds.

We
are satisfied that the same interpretation given in other
jurisdictions to identical or materially the same provisions holds
true as far as onus is concerned in respect of s 95 of the Act. That
is to say that, once the applicants establish a mistake or non
compliance with the provisions of Part V of the Act, the onus rests
on the first respondent to prove that the election was conducted in
accordance with the principles contained in Part V and that the
proven mistakes or non compliance have not affected the outcome of
the election. In the result we reject Mr Maleka’s contentions that
the Tighy – interpretation should not be followed. He sought
to rely on the interpretation given by Streatfeild J in Re
Kensington North Parliamentary Election [1960] 2 All ER 150
(Election Court) at 152H - 153A on the differently worded provisions
of s 16 of the Representation of the People Act, 1949 (UK).

It
is common cause that the applicants’’ complaints against the
election go beyond mere mistake and non-compliance with the
provisions of Part V. The case pleaded includes references to
inferences of fraud, stuffing of ballot papers by unscrupulous
persons, double voting and other irregularities. In dealing with the
various grounds we shall, as we must, differentiate between those
falling under s 95 and those under s 116(4) of the Act as far as the
onus is concerned. We must also point out that a mistake or
non-compliance contemplated in s 95 may also give rise to an
irregularity or other ground referred to in s 116(4) and that it will
be considered accordingly. But, given the substantial number of
factual disputes, we must first consider the approach we shall adopt
in considering the conflicting evidence presented by the various
parties when deciding on the merits of the various complaints.

Disputes
of Fact: the relevant approach

It
is trite law that where conflicts of fact exist in motion proceedings
and there has been no resort to oral evidence, such conflicts of fact
should be resolved on the admitted facts and the facts deposed to by
or on behalf of the respondent. The facts set out in the respondent’s
papers are to be accepted unless the court considers them to be so
far-fetched or clearly untenable that the court can safely reject
them on the papers. (Nqumba v The State President, 1988 (4) SA
224 (A) at 259 C – 263 D). At home it was recently said by
Strydom CJ in the unreported Supreme Court judgment of Walter
Mostert v The Minister of Justice (Case No. SA 3/2002) at
p. 18, as follows:

“ … as
the dispute was not referred to evidence, the principles, applied in
cases such as Stellenbosch Farmers’ Winery (Pty) Ltd v Stellenvale
Winery (Pty) Ltd 1957 (4) SA 234 at p. 235 E-G and Plascon- Evans
Paints Ltd. v Van Riebeeck Paints (Pty) Ltd., 1984 (3) SA 623 (AD),
must be followed. It follows therefore that once a genuine dispute
of fact was raised, which was not referred to evidence, the court is
bound to accept the version of the respondent and facts admitted by
the respondent …’’ [Our emphasis)

Generally:
see Plascon- Evans Paints v Van Riebeeck Paints 1984 (3) SA 623,
and Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234 (C) at 235 E-G.

It
was said by Corbett JA in the Plascon- Evans case, supra
(at 634-635):

“In
certain instances the denial by respondent of a fact alleged by
applicant may not be such as to raise a real, genuine or bona fide
dispute of fact. If in such a case the respondent has not availed
himself of his right to apply for the deponents concerned to be
called for cross-examination under rule 6 (5) (g) and the court is
satisfied as to the inherent credibility of the applicant’s factual
averment, it may proceed on the basis of the correctness thereof…”

This
is the approach we shall adopt in considering the evidence adduced in
this application. With this in mind we now turn to the various
complaints.

Stuffing:
Complaints 1, 3, 20 and 23

There
is dispute whether or not stuffing of ballot papers occurred, or
could have occurred. There is not a scintilla of direct evidence that
anyone, let alone first respondent, stuffed ballot papers in the
ballot boxes in order to influence the outcome of the election. The
applicants rely for the allegation that it did occur on inferences
that it wants the Court to draw from the following facts: the absence
of serial numbers on ballot papers (Complaint 1); the fact that just
too many people voted during the election than was physically
possible (complaint 3); the fact that some constituencies recorded
more votes than there were registered voters in those constituencies
(complaint 20) and the Okahandja incident (complaint 23).

As
we have shown earlier in this judgment, the first respondent was
precluded by the principle of secrecy to print serial numbers on
ballot papers and acted in accordance with law when it caused the
serial numbers to be printed on the counterfoils of ballot papers. As
we also demonstrated, the applicants’ contention that more people
voted in the election at certain polling stations than time allowed
was based on the incorrect premise that only one voter had been
allowed to be in a polling station at any given time. Counsel for the
applicants conceded the mistaken premise and we did not understand
him to pursue this complaint any further. The two central pillars
upon which the allegation of stuffing rested therefore fell away.

The
fact that the Okahandja ballots could not be traced back to a
particular polling station does not really advance the applicants’
case. To use the allegation that only ballots cast in favour of
opposition parties were found burnt amongst the election material
discovered near Okahandja in support of the assertion of rigging is
not justified by the evidence and is not the only inference that can
be drawn from those facts. The affidavits submitted by the first
respondent strongly suggest that the ballot papers might have fallen
from a truck transporting ballot boxes. Such a possibility is not
altogether untenable, because the material was not found hidden away
but picked up next to a public road. Although the allegations that
the first reported “discovery” and the later burning of those
ballot papers have been fraudulently distorted and fabricated to give
credence to the applicants’ intended challenge of the election are
still the subject of a police inquiry, we do not find the version on
behalf of the first respondent so far-fetched as to be rejected on
the papers. Besides, there is nowhere in applicants papers even the
remotest suggestion that the ballot papers found at Okahandja had not
already been counted by the time they had been found.

Even
if we were to accept that the ballot papers landed up next to the
road as a consequence of some or other non-compliance with the
provisions of Part V of the Act (such as the failure to properly seal
a ballot box) and that, because of such non-compliance one of the
principles contained in Part V of the Act had been violated, they are
in any event too few in number (22 ballots) to have had any effect on
the result of the election.

The
first respondent asserted that the presence of the Namibian Police at
polling, counting points, during conveyance of election material; the
fact that political parties were allowed to have agents present
during polling and counting; the fact that political parties could
place seals on ballot boxes after the ballots had been placed in the
ballot boxes, all militate against the kind of vote rigging contended
by the applicants. The fact that applicants say that due to manpower
and resource constraints they could not fully take advantage of the
safeguards worked into the law for participating political parties,
does not really assist them; especially because it is not asserted,
or established, that although they did not do so, others did not take
advantage of those safeguards which clearly would make such rigging
highly unlikely without being noticed.

Another
aspect that has received scant attention in argument but which is
nevertheless a powerful argument against the stuffing of ballot
papers, is the official stamp which must be affixed by a presiding or
polling officer on the back of every ballot paper when it is issued
to a voter. The official stamp for the various poling stations is
provided to the returning officers, who in turn issue them to
presiding officers for use and safekeeping during the election.
Without the official mark appearing on the back of a ballot paper, it
will not be counted as a valid vote. Any stuffing would therefore
require the persons involved to have access to or be in possession of
the official stamp relating to the polling station in question and
the ballot boxes thereof – in addition to being in possession of
ballot papers with which to substitute or supplement those validly
cast. Although not impossible, it would require a conspiracy
involving a number of persons to execute such a fraudulent scheme and
there is, as we have remarked earlier, no scintilla of direct
evidence to that effect.

The remaining complaint is that
more voters voted in certain constituencies than the number of
registered voters on the voters’ register for that constituency.
These allegations are made in relation to the following
constituencies (and the extent with which the number of votes counted
exceeds the number of registered voters for that constituency is
given in brackets): Katutura East (657), Windhoek east (4488),
Windhoek Rural (1021), Windhoek West (2974), Amulenge (1082),
Ompundja (132), Uuvudhiya (849), Olukonda (888), Onyaanya (959) and
Omatako (835), i.e. a total of 13 885 votes.

Inasmuch as the explanation of
the excessive voting percentages advanced by the Director constituted
an acknowledged non-compliance with a number of sections falling
under Part V of the Act, the first respondent shoulders the burden to
prove that the election was nevertheless conducted in accordance with
the principles laid down in Part V and that the non-compliance did
not affect the result of the election.

The first respondent does not
contest the figures but proffers the following explanation: s 80(3)
of the Act allows voters at an election for members of the National
Assembly to vote by tendered vote at a polling station other than one
in the constituency where he or she is registered. After such a
person has voted, the ballot paper is placed in a tendered vote
envelope, sealed and deposited in the ballot box for tendered vote
envelopes (s 82(9)(d) and (e)(ii)). Although s 87(2)(c) of the Act
requires that a retuning officer, after verification of the
correctness of the presiding officers’ returns, to replace all the
tendered vote envelopes in a ballot box and cause it to be delivered
to the Director of Elections to be sorted according to the
constituencies indicated on the envelopes and to be counted and
allocated to those constituencies (s. 87A(1)(c) and (d)), many
returning officers failed to do that and mistakenly counted the
tendered votes in the constituencies where they had been cast. This
resulted in the excess number of votes in the constituencies
mentioned by the applicants.

Whilst the purpose of sections
ss 80(3) and 82(9)(d) and (e)(ii) is to allow as many registered
voters as possible to vote in National Assembly and Presidential
elections, sections 87(2)(c) and 87A(1)(c) and (d) are designed to
ensure that the process remains verifiable and transparent. If the
latter provisions are not complied with and tendered votes are
counted in the constituencies where they have been cast, the
announced results per constituency will be incorrect and the
integrity of the election may well be questioned – as the
applicants have done in this case. Had the correct procedure been
followed, it would not have been possible to record more votes than
registered voters in a constituency and if it had happened, it would
have constituted weighty evidence that something serious was amiss.
The applicants expected and were entitled to assume that those
procedures have been followed. It therefore comes as no surprise that
they thought that the ballot boxes for those constituencies had been
stuffed.

The first respondent’s
failure to observe the tendered-vote procedures prescribed in
sections 87(2)(c) and 87A (1)(c) and (d) of the Act falls to be
criticised; more so because the announced results created a distorted
and patently incorrect – even ridiculous – impression in the
minds of local and international observers who were entitled to
assume that the prescribed procedures have been followed. It brought
disrepute to the process which Parliament with so much effort
tailored to be free and fair.

Verifiable transparency in the
election procedures by a process of scrutiny is, in our view, one of
the principles around which Parliament constructed many of the
provisions contained in Part V, including sections 87(2)(c) and
87A(1)(c) and (d) of the Act. Without due compliance with those
sections, the statutory imperative that National Assembly elections
should be constituency-based may just as well be scrapped. Whatever
the other consequences thereof may be, it will certainly make it more
difficult to detect irregular practices such as stuffing. Moreover,
it makes the process of verification difficult, if not impossible if
those provisions are not complied with. We are therefore satisfied
that the non-compliance with those sections constitutes a breach of
one of the principles contained in Part V of the Act.

But what, if any, was the
effect thereof on the result of the election? Although the election
is conducted on the basis of constituencies, candidates do not stand
and are not elected in the respective constituencies. The polling
results in all the constituencies are eventually collated and, on the
basis of proportional representation prescribed in Schedule 4 of the
Constitution, seats are allocated to political parties and filled
from party lists submitted under s 59 of the act. Purely for the
purposes of such calculation, it matters not if a voters’ ballot
paper has erroneously been counted in constituency A rather than in
constituency B to which it should have been allocated. The first
respondent has therefore shown that the non-compliance did not affect
the result of the election as contemplated by s 95 of the Act.

The
applicants did not ask that the issue relating to the excessive
voting percentages be determined by reference to oral evidence. The
explanation given by the first respondent for the excessive voting
percentages in some constituencies cannot be dismissed as
“far-fetched or clearly untenable” and, on the Plascon–Evans
approach, falls to be accepted for purposes of this application. With
that, the inference of stuffing drawn by the applicants on account of
the excessive voting percentages falls away. We must therefore also
conclude, as we do, that the applicants have failed to prove that the
excessive voting percentages at some polling stations was the result
of stuffing - which would have constituted an “irregularity” or
“other cause” contemplated in s 116(4) of the Act. Serious as
this complaint may be, and whatever criticism the first respondent’s
non-compliance may justifiably attract, it does not affect the result
of the election. On the approach we have adopted to evaluation of the
evidence as a whole and the factual disputes in particular, we must
also conclude that it does not support the suggestions of stuffing.
We must note, however, that although we also do not consider this
ground as a reason to order a recount, the incorrect allocation of
tendered ballots may be corrected in a recounting process and, if
that is possible, a more accurate (and probably more acceptable)
picture may emerge about the voting percentages in constituencies all
over the country.

Voting
material: Complaints 12, 13, 15

The applicants complain that a
number of Elect 21 and Elect 22 forms listing particulars of ballot
papers distributed to a number of constituencies and polling stations
were not signed by the election officials who had received them
(complaints 12 and 13). We have already pointed out that it is not
apparent from these forms that they related to election material
bearing on the National Assembly-election. Mr Frank indicated on
behalf of the applicants that in the absence of an allegation to that
effect, the applicants do not place much reliance on them except to
the extent that they are but a further example of the many respects
in which the respondent failed to conduct the elections in a regular
and verifiable manner.

Although we accept the
Director’s explanation that these forms are not prescribed by any
provision in the Act itself, he nevertheless admitted that they had
been designed to keep track of all sensitive election material –
and for that the first respondent must be commended. It seems to us
though, that these good intentions will come to nothing if the forms
are not used for the purpose of their design. We do not accept the
Director’s attempt to play down the importance of these controlling
mechanisms implemented by the First Respondent. Moreover, the first
respondent may do well in reminding itself that an election of this
nature is not a game of hide and seek: with the first respondent
trying to hide irregularities and the affected parties having to seek
for them. It is an all-important process in the attainment of the
democratic ideals articulated in the Constitution. Transparency –
by, for example, leaving a verifiable paper trail of every ballot
paper from the moment it is printed until it is eventually destroyed
in accordance with law – enable scrutiny and verification, thereby
giving credence to the integrity of the process and confidence in its
result.

The applicants also complain
that the first respondent has failed to adequately preserve all
records relating to the election. In support of the complaint, they
refer to 5 documents found at a dump. These documents, we hasten to
say, are not ballot papers. One, for example, is clearly a partly
completed document apparently discarded by its author because ink had
been spilled on it. Another relates to Regional Council elections and
it is not clear from any of the other whether they relate to the
election in question.

Whilst we consider the
Director’s response to these complaints to be rather inadequate, we
accept that the failure to obtain a signature on the Elect 21 and 22
forms does not constitute a mistake or non-compliance with the
provisions of Part V of the Act. In the absence of any referral to
oral evidence to canvas this aspect more fully, we are also not able
to conclude that these forms relate to the election in question or
that the Director’s denial that those ballot papers have otherwise
been accounted for can be dismissed without more. The same applies to
the documents referred to in complaint 15. Hence, we must find that
these complaints do not take the applicants’ entitlement to the
relief prayed for any further.

Voting:
Complaints 11, 16, 17

The allegation of double voting
(complaint 11) is based on entries made in a number of Elect 23 forms
relating to tendered ballots issued at certain polling stations.
Virtually all the entries made create the impression that the voters
were registered in the same constituency as the one in which they
cast their votes. From those entries the applicants seek to draw the
inference that the voters concerned voted both by tendered vote and
by ordinary vote. There is no direct evidence that double voting had
occurred; for example, that the registration number of a particular
voter to whom a tendered vote had been issued appears twice on the
counterfoils of a ballot book.

The Director acknowledges that
the forms have been completed incorrectly: the polling officers in
question wrote the name of the constituency where the voters in
question were registered on the heading to the form instead of the
name of the constituency where the vote was being cast. This
explanation, it seems to us is not only reasonable, but it is in most
instances supported by particulars of the polling stations written on
the documents. The polling stations referred to in the forms do not
fall within the area of the constituencies mentioned therein and
sometimes the names of the constituencies do not fall within the
regions to which those forms relate – a clear indication that the
name of the incorrect constituency was recorded in all instances. So,
for example, will a form indicate that at the Malaika Shopping Centre
- Oshifo polling station in the Oneshi constituency and Omusati
region a tendered ballot was issued to a voter bearing registration
card number 20569982 registered in the Oneshi constituency.
Geographically though, the Malaika Shopping Centre – Oshifo polling
station is situated in the Ruakana constituency in the Omusati region
and not in the Oneshi constituency – the latter constituency does
not even fall within the Omusati region. At some polling stations the
mistake was later realised and the erroneously completed Elect 23
forms cancelled and substituted with forms containing the corrected
entries. In the circumstances, we are satisfied that the mistake has
been adequately explained by the first respondent and that the
applicants’ complaint must be rejected.

The applicant’s complaints
that the polling officers did not refer to the voters’ register at
the Omusati Project polling station when they issued tendered votes
to a number of voters (Complaint 16) is, at best, speculative and
falls to be dismissed without more. No evidential basis has been
provided for those allegations.

The last complaint about the
voting procedures focuses on the failure of a presiding officer in
the Okalongo constituency to note the registration numbers of voters
to whom tendered ballots had been issued on the Elect 23 form – he
noted the names of those voters instead. The applicants’ suggestion
that they had been allowed to vote without registration cards is not
supported by any real evidence. They could easily have established
from the voters’ register whether or not those persons had been
registered. In any event, given the approach to the evidence we have
to apply in the absence of gainsaying oral evidence, we must accept
that none of those voters would have been allowed to vote without a
registration card and that their registration numbers have been noted
on the counterfoils of the ballot papers. This complaint must
therefore also fail.

Accounting
and verification: Complaints 4, 5, 6, 7, 8, 9, 19

These complaints all relate to
the failure of presiding officers to properly account for the number
of ballot papers received by them as required by s 85(3) of the Act
and the failure of returning officers to properly verify those
accounts in terms of s 87(2) of the Act. In terms of those
subsections, presiding officers are required to account in writing
“for the number of ballot papers entrusted to them under the heads
of ballot papers in the ballot box and unused and spoilt ballot
papers.” That return must accompany the sealed ballot boxes and
separate packets of all unused ballot papers, spoilt ballot papers,
counterfoils of used and spoilt ballot papers, marked copies of the
relevant voter’s register, the official stamp used at the polling
station and other prescribed equipment or documents. They are all
handed by the presiding officer to the returning officer immediately
after the close of the poll, who then takes charge of them. The
returning officer is required to inspect the seals of the ballot
boxes and the packets before opening them for purposes of
verification and counting. The contents of the ballot boxes and
packets are compared with returns submitted by the presiding officers
and the returning officers are required to prepare a report on the
results of the verifications. The form used by presiding and
returning officers for purposes of accounting and verification are
known as Elect 16 forms.

The first
respondent admits that the returns submitted in a number of
constituencies do not give proper account of the ballot papers and/or
that the accounts given have not been verified. That much is apparent
from a number of the documents annexed to the applicants’ founding
affidavits. Based on those documents, the applicants complain that
the accounts and/or verifications have not been made or signed
(Complaint 4); that the forms have not otherwise been completed by
the insertion of important information (Complaint 5); that some of
those forms contain incorrect calculations and erroneous entries
(Complaint 6) that the particulars of serial numbers have been
omitted on some (Complaint 7); that some ballot books had more than
100 ballot papers (Complaint 8); that corrections on some of the
returns have not been initialed (Complaint 9); that in the Anumalenge
constituency tendered votes had been accounted for four times
(Complaint 10) and that there is a difference between the account
given and the verification in the Walvis Bay Rural Constituency
(Complaint 19).

We must
immediately say that a number of these complaints have proved to be
without substance and/or weight: the fact that some ballot paper
books had more than 100 ballot papers in them, is of no consequence
as long as the ballot papers have been accounted for by reference to
their serial numbers, and the so-called fourfold accounting for the
same tendered ballot papers proved to be all duplicates of the same
document. Moreover, many mistakes appearing on a reading of those
returns have been explained away by the Director, sometimes by
annexing supporting documents and at other times by annexing
corroborative affidavits of election officials. We do not deem it
necessary to repeat all of those explanations summarised earlier in
this judgment. Suffice it to say that, even if we accept the
explanations given in relation to these documents and focus on
complaint 4 only, the picture we are left with is a disturbing one:
As the table below shows, 1 800 (plus potentially a further 1 600)
ballots received by presiding officers have not been accounted for by
them under their signatures and 13 998 (plus potentially a further 11
899) ballots received of which 9 926 (plus potentially a further 7
125) ballots cast have not been verified by the responsible
accounting officers.

In compiling
this table we have omitted those returns in respect of which the
Director (or the first respondent’s counsel in the course of
argument) gave an adequate explanation – such as that a particular
document is not to be considered in isolation but as part of a bundle
or series of documents; that some should be disregarded because they
relate to the Presidential election or to the Regional Counsel
election; that others were working documents and the like.

As will be
seen from this table, by far the most ballot papers are affected by
the absence of verification. Without verification, there is, for
instance, no way of knowing that the ballots cast (according to the
presiding officer’s account) were found in the ballot box at the
counting station and included in the results ultimately announced.
Without such verification, those ballots may, for all we know, not
have been counted at all. The converse holds equally true: without
the verification that only the number of ballots cast as accounted
for were found in the ballot boxes, any number could have been in
there. This, again, leaves the door for stuffing and other forms of
election fraud wide open.

Having shown
that the presiding and accounting officers responsible for the due
completion of those returns mentioned in the table have failed to
account for the ballot papers or to verify those accounts as required
by sections 85(3) and 87(2) of the Act, the first respondent had to
show that the election was nevertheless conducted in accordance with
the principles laid down in Part V of the Act and that the
non-compliance did not affect the result of the election.

Can
it be said that, notwithstanding the absence of accounts and
verification affecting so many ballot papers, the election was
nevertheless conducted in accordance with the principles contained in
part V of the Act? We think not. The purpose of
the process of accounting and verification in terms of sections 85(3)
and 87(2) lies at the heart of the principles of transparency and
accountability built into the election process under Part V of the
Act. Without that, the door would be wide open for stuffing and
election fraud of virtually unlimited proportions and, instead of
being one of the greatest aids in the attainment of a democratic
dispensation, elections may become its greatest hurdle. There are, in
our view, few enemies more destructive of the democratic values in
any society than manipulated elections masquerading as ones freely
and fairly conducted. It is for these reasons that we have deemed it
appropriate to take a serious view on the failure to comply with the
statutory requirements of transparency, accountability and
verification.

According
to the announced results (the one corresponding with the published
results) 67 of the 72 seats in the National Assembly were allocated
to various political parties by dividing the number of votes gained
by each with the quota of votes per seat determined in terms of
paragraph (1) of Schedule 4 of the Constitution. The remaining 5
seats were allocated in sequence of the highest surplus of the
remaining votes as provided for in paragraphs (2) and (3) of the
Schedule. According to the first respondent’s calculations the
SWAPO party had the fifth highest surplus (“overhang”) with 9 059
votes and was thus awarded the last available seat. The first
applicant had the sixth highest surplus (4637 votes) and therefore
missed out on the additional allocation. The difference between the
surplus of those two parties is therefore about 4 422 votes. If one
were to consider this difference in the context of 9 926 (plus
potentially a further 7 125, i.e. 17 051) ballots cast without being
verified and 1 800 (plus potentially a further 1 600, i.e. 3 400)
unaccounted ballots received, it is immediately apparent that the
first respondent faced an insurmountable obstacle in discharging the
onus cast on its shoulders by s 95 of the Act. Of course, it may be
that all the unaccounted for or unverified votes - and no other -
have been counted and included in the announced results. But we do
not know that and we cannot speculate about it. What we do find
though, is that the first respondent has failed to adduce sufficient
reliable and credible evidence to that effect or to show that the
result of the election would not have been different if there had
been due compliance. Having failed to do so, the first respondent
must bear the responsibility for it’s (and its Director’s and
officers’) failures.

If
we consider some of the other complaints about the returns, the
picture may become even darker for the first respondent. So, for
example, was no explanation proffered for some of the returns
rendered without reflecting the serial numbers of the ballot papers.
It is, however, not necessary for us to deal with the merits of the
other complaints bearing on the “defective” returns in view of
the conclusion we have already arrived at.

The
Results: Compilation and Announcement (Complaints 2,
14, 18, 21)

It
is common cause that the first respondent announced different results
at different stages and thus causing a great deal of confusion
(Complaint 2). By itself this may not be sufficient reason to avoid
the election but it raises a number of serious questions about the
care and competency with which that important function has been
discharged.

We
have already referred to the incorrect results caused by the
incorrect allocation of a large number of tendered ballots in a
number of constituencies. What is worse, though, is the Director’s
decision not to include in the final result about 504 votes cast by
means of tendered ballots and 804 votes cast outside Namibia
(Complaint 14). This constitutes a clear and deliberate breach of s
89 of the Act. We do not accept the Director’s timid excuse that it
had been agreed with political parties to follow such a course. No
agreement made for the sake of convenience – even expediency –
may detract from what the Act clearly requires. Having done what he
did, the Director in effect disenfranchised those voters and made a
mockery of the arrangements made and expenses incurred to make it
possible for Namibians abroad to have their votes cast and counted.
The disregard of these votes (1 308 in number) must be added to those
we have mentioned earlier and serve to compound the difficulties
faced by the first respondent to prove that the collective effect of
the various ways in which the Act has been disregarded does not
affect the outcome of the election.

We
accept the explanation given by the Director about the Anamulenge,
Elim and Tsandi constituencies (Complaint 21) and why there may be
differences between the provisional results displayed or provided by
the first respondent and those finally announced (Complaint 18).
However, the point has pertinently been made by the applicants that
the Results Centre had no competence to, as it were, vet the results
forwarded by returning officers to the Director. On the Director’s
own admission, he only announced results after the Results Centre had
cleared them for him. It is not clear, and the first respondent does
not show otherwise, that the Director did not abdicate responsibility
in receiving and acting on the returns from the returning officers.
The first respondent has therefore failed to establish that the
results announced are those that the Director received from the
returning officers.

Conclusion

The
applicants have established that the first respondent failed to
comply with several of the provisions contained in Part V of the Act.
That, as we have found, triggers the curative provisions in s 95 (4)
of the Act. The first respondent therefore bore the onus of showing
that the election was nevertheless conducted in accordance with the
principles contained in Part V and that those failures did not affect
the outcome of the election.

The
extent of the non-compliance takes the form, principally but not
exclusively - as we have shown - of defective returns. The prima
facie failure to properly account for and to verify the accounts
relating to ballot papers received and ballots cast called for an
answer by the first respondent. Why the returning officers did not
depose to affidavits to explain their apparent failures was left
unexplained and, we must add in passing, that we do not find as
credible the respondent’s version that they had in place during the
election an alternative system of tracking all election material in
the way that it is suggested in the papers.

With
only a difference of 4 422 votes between the surplus of the Swapo
Party (9 059) and that of the Republican Party (4 637), the
number of ballots affected by the extent of the non-compliance we
have found to exist becomes so significant that we cannot allow the
announced results to remain: firstly because it admittedly does not
include the 1308 tendered ballots and those cast outside Namibia,
secondly and most importantly, because of the effect of the further
11 141 (plus the further possible 7 398) votes that have not
been accounted for and/or verified. With substantially more than 20
000 votes bearing one way or another on the results of the election,
we must conclude that the first respondent failed to discharge the
onus it had. But even if the Applicant had the duty to show that it
affected the results, our conclusion would not have been any
different given the margins we have referred to earlier.