REPUBLIC OF NAMIBIA

IN THE ELECTORAL COURT OF NAMIBIA, WINDHOEK

JUDGMENT

Case no: EC 8/2020

In the matter between:

THE ELECTORAL COMMISSIONOF NAMIBIA APPLICANT

and

SWAPO PARTY OF NAMIBIA 1ST RESPONDENT

POPULAR DEMOCRATIC MOVEMENT (PDM) 2ND RESPONDENT

INDEPENDENT PATRIOTS FOR CHANGE (IPC) 3RD RESPONDENT

LANDLESS PEOPLE’S MOVEMENT (LPM) 4TH RESPONDENT

NAMIBIA ECONOMIC FREEDOM FIGHTERS (NEFF) 5TH RESPONDENT

BLOODSTAN STEFANUS 6TH RESPONDENT

SIMON G. KOOPER 7TH RESPONDENT

DEENSIA SWARTBOOI 8TH RESPONDENT

TJIPANGA DESMOND 9TH RESPONDENT

MINISTER OF URBAN AND RURAL DEVELOPMENT 10TH RESPONDENT

REPORTABLE

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Neutral citation: Chairperson of the Electoral Commission of Namibia v Swapo

Party of Namibia (EC 8/2020) [2020] NAHCMD 600 (11 December 2020)

Coram: UEITELE J, OOSTHUIZEN J ET SIBEYA J

Heard: 04 & 09 December 2020Delivered: 11 December 2020

Flynote: Statute – Electoral Act – Section 12 of Act No. 5 of 2014 –

Interpretation and application of as respects ‘at a meeting’ of the Commission –

Court holding that the words ‘At a meeting of the Commission all questions are

decided by a majority of votes of the members present and voting’ means a binding

decision of the Electoral Commission can be taken only at a meeting at which

members who form the requisite quorum are assembled.

Election Law – Election law — Elections — Validity of — Member of a Regional

Council elections on 25 November 2020 — Applicant seeking self-review to have

election set aside on basis that election not in accordance with the principles set out

in Part 5 of the Electoral Act, 2014 Court holding that evidence adduced by applicant

do make out a case for the alleged irregularities and non-compliance with the Act.

Summary: The Electoral Commission, of its own, approached the Court to declare

the taking of a poll on 25 November 2020 in respect of election for local authorities

of Aroab, Koes, Stampriet and elections for member of the Hardap Regional Council

in respect of the Mariental Rural constituency invalid.

Mr Mujoro, on behalf of the applicant, contended that the irregularities that transpired

during the elections in the local authority areas of Koes, Aroab, Stampriet and the

Mariental Rural Constituency, infringe all Namibians’ rights as provided under Article

17(2) of the Constitution, and that the errors and irregularities were fatal and have

the effect of depriving the citizens of their rights to participate in political activities of

their choice and thus choose political leaders to represent them and shape policies

that affect their lives.

On the other hand, Mr Thomas, who deposed to the opposing affidavit on behalf of

the fourth and eighth respondent, admitted the errors and irregularities occurred but

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contended that the Commission has not placed sufficient evidence before the Court

to warrant the ‘drastic measure’ of setting aside the elections. He states that the

irregularities are minor and do not affect the outcome of the elections in that the

errors are not of significance as they will not change the outcome of the Regional

Council Elections which is one of ‘first past the post’ as opposed to the local authority

results where the winner is declared by way of proportional representation and a few

votes can easily change the allocation of seats.

Held that in the present matter, the statute establishing the Commission does not

make provision for taking decisions by round robin resolution, nor was the court

referred to a regulation, rule, article, or policy of the Commission authorising it to

take a decision or authorising an act to be performed on its behalf by round robin

resolution. It thus follow that a decision of the Commission taken on the basis of a

round robin resolution would be invalid.

Held further that the irregularities that occured at Glencoin, Proef Plaas and

Stampriet Police Cells are of such a substantial nature that no Court properly

applying its mind to the evidence and the law can in good conscience, declare that

they do not matter and that the will of the people was expressed nonetheless.

Held further that voting processes were conducted so badly and in gross disregard of

the principles set out in Part 5 of the Act, the question of whether or not the result is

affected or not does not arise for determination at all, firstly because it is not possible

to determine with certainty how many voters in the Mariental Rural Constituency

were disenfranchised.

Held furthermore that on the reading of s 64 of the Act it is plain that the Legislature

reserved the determination of the polling day for the President on the

recommendations of the Commission.

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ORDER

a) The Electoral Commission of Namibia’s failure to comply with the prescribed

periods of time and forms of service, is hereby condoned and the matter is enrolled

as one of urgency in terms of Rule 5(21) of the Rules of this Court.

b) The ballots casted and the elections held on 25 November 2020 in the Koes,

Aroab and Stampriet Local Authorities as well as in the Mariental Rural Constituency

are declared invalid and are set aside.

c) The 4th and 8th respondents’ counter applications are dismissed.

d) There is no order as to costs in keeping with section 171 of the Act.

e) The Electoral Commission of Namibia must for purposes of ensuring that all

political parties, associations or individuals who participated in the taking of the poll

on 25 November 2020, again partake in the re-run of the poll, pay to that political

party, association or individual an amount of N$ 50 000 in respect of the election for

a member of the Hardap Regional Council and an amount of N$ 25 000 in respect of

election for a Local Authority Council.

f) The Electoral Commission must pay the amounts referred to in paragraph 5 of

this Order only to a political party, association or individual who has participated in

the re-run of the poll.

g) The matter is regarded as finalised and is removed from the roll.

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JUDGMENT

THE COURT:

Introduction

[1] This Court, in the matter of Tjirare and Another v Chairperson of the Electoral

Commission of Namibia and Others1 stated that voting is the foundational concept

for our entire democratic structure. The Court went on to state that we, as a nation,

have settled on the principle that political legitimacy is based on the consent of the

governed. What this means in our view is that any government that wants to lay

claim to legitimacy must, in some fashion or the other allow the people to choose its

rules and its rulers. That ‘in some fashion’ is important, because it gives the people

input in choosing their Rulers.

[2] The ‘some fashion’ that the people of Namibia have chosen is the periodic

election of those who must rule at all spheres of Government. In our view election is

one of the most important modes of building a functioning and effective state and of

developing a more open, inclusive, and representative political order; and revitalising

the link between the state and the society. In our view, elections are an essential

step in building legitimacy and enabling citizens to take part in shaping a common

future. Yet elections can also be used to destabilise and act as detonators of

violence and conflict and if conditions are not right, elections can be a tightrope walk

between war and peace, stability and instability.

[3] Elections can be conducted successfully and thus perform their stabilizing role

if conducted by an independent, well-functioning Election Commission and an

Election Complaints System (where disgruntled persons may be heard and their

issues decided upon) which is crucial for the success of an election process. This

case is, in our view, about reaffirming the importance of a free, transparent, credible

and fair election at the local and regional spheres of government.

The parties and the relief sought. 1 Tjirare and Another v Chairperson of the Electoral Commission of Namibia and Others (EC 2/2020) [2020] NAHCMD 283 (13 July 2020) at para [2].

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[4] The applicant in this matter is the Electoral Commission of Namibia (we will in

this judgment refer to the applicant as the ECN or the Commission) and there are ten

respondents (five of whom are political parties which are registered in terms of the

electoral laws of Namibia and who participated in the local and regional elections

that are the subject of this matter, four are individuals who are aspiring to be elected

as regional leaders at the regional level and the last respondent is the Minister

responsible regional and local government affairs).

[5] We pause here to observe that this is the first time in the twenty-eight years of

existence of the ECN, that the Commission of its own volition approaches the Court

to declare the taking of a poll invalid. The Commission’s competence to seek self-

review of its official’s actions is quite appropriate. The Supreme Court, (Per

Damaseb DCJ with Hoff JA and Frank AJA concurring) in the matter of China State

Engineering Construction Corporation v Namibia Airports Company Ltd2 stated that:

‘It is now firmly settled that administrative decision-making remains valid and binding,

however flawed, unless set aside by a competent court.3 The consequence of that principle

is that in a constitutional state governed by the rule of law and legality, where an

administrative decision maker such as the NAC becomes aware that its decision-making is

tainted by illegality (either arising from fraud by its officials, non-compliance with statutory

prescripts or any other vitiating circumstance recognised in law), it is required,4 unless a prior

challenge has been mounted by an aggrieved person with proper standing, to approach

court to have the decision reviewed and set aside. Where there has been a prior challenge it

may choose to go on record for the purpose of informing the court that it supports the review

and make full disclosure of all the relevant evidence and documents under its control; and

abide the decision of the court. What is clear is that it (and its officials entrusted with public

responsibilities) must act in good faith and not become obstructive and be defensive against

those seeking to have the decision-making corrected.’

[6] The ECN approached this Court on the 1st of December 2020 on an urgent

basis, seeking the following relief:2 China State Engineering Construction Corporation v Namibia Airports Company Ltd. 2019 (3) NR 791 para 5.3 This is the so-called Oudekraal principle (Oudekraal Estates (Pty) Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA) approved in for, example, Rally for Democracy and Progress v Electoral Commission of Namibia 2010 (2) NR 487 (SC); Black Range Mining (Pty) Ltd v Minister of Mines and Energy & others NNO 2014 (2) NR 320 (SC).4 Pepcor Retirement Fund & another v Financial Services Board & another 2003 (6) SA 38 (SCA).

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‘1. Condoning the Applicant’s (sic) non-compliance with the Rules of this

Honourable Court and the time periods prescribed therein in so far as these have not been

complied with and directing that this matter be heard as one of urgency.

2. Declaring the ballots cast and the elections held on 25 November 2020 in Koes, Aroab

and Stampriet Local Authorities, as well as Mariental Rural Constituency, null and void;

3. Directing the holding of new elections not later than 14 days from date of Order in the

above named local authorities and constituency;

4. Directing a waiver of the application of the processes as contained in Section 64(1)(a)

as read with Section 64(3) of the Electoral Act 5 of 2014;

5. Costs if opposed;

6. Alternative or other relief’

[7] Of the ten respondents cited by the ECN, only one political party (namely the

fourth respondent, the Landless Peoples Movement and the eighth respondent Ms

Deensia Swartbooi) opposed the application. In addition to opposing the ECN’s

application, the fourth and eighth respondents also filed a counter application ( to

which the Commission responded) in terms of which they seek the following relief:

‘a. Condoning the Applicant’s (sic) non-compliance with the Rules of this

Honourable Court and the time periods prescribed therein in so far as these have not been

complied with and directing that this matter be heard as one of urgency.

b) Confirming in terms of section 115 of the Electoral Act, 2014 (Act (5 of 2014) that the

regional council elections held on the 25 the November 2020 in the Mariental Rural

Constituency as (sic) valid.

c) Directing, in terms of section 111(2)(b) of the Electoral Act, 2014 (Act (5 of 2014), that

the Electoral Commission of Namibia declare the duly elected candidate as a member of the

Hardap Regional Council for the Mariental Rural Constituency;

d) Directing any party opposing this order to pay the costs thereof;

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e) Alternative or other relief.’

[8] The matter was initially set down for hearing on 04 December 2020 but on

that day, the fourth and eighth respondents, had not yet filed their opposing affidavits

(affidavits opposing the ECN’s application) and supporting affidavits (affidavits in

support of their counter application). We accordingly postponed the matter to

Wednesday the 09th of December 2020 to enable the parties to exchange pleadings.

The parties are in agreement that this is an urgent matter and we hold the same view

and we therefore condone the applicants’ non-compliance with the forms and service

provided for in the Rules of this Court, and hear the matter as one of urgency.

Preliminary issues at the Hearing.

[9] At the hearing on 09 December 2020, the Court raised two issues with the

parties, the first being the parties’ authority to institute the proceedings and the

second being the provision of security as contemplated in s 169 of the Electoral Act,

2014. As regards the Commission, Mr Mujoro, the Chief Electoral and Referenda

Officer of the Commission deposed to the affidavit in support of the ECN’s

application. He indicated that the Commissioners, by a ‘round robin resolution’

authorised the institution of the application. When we had regard to that resolution, it

transpired that the resolution was signed by only three members of the Commission.

It thus became apparent that not all members of the Commission signed the

resolution.

[10] We raised the question whether the round robin resolution that was only

signed by three members was a valid resolution authorising the institution of the

proceedings. Mr Ncube, who appeared for the ECN and relying on s 12 of the Act,

responded that the resolution was validly taken. The parties, after being probed by

the Court requested, as Mr Ncube put it ‘out of abundance of caution’ an

adjournment to place proper resolutions before Court. After the adjournment, both

parties placed before Court resolutions which satisfied us that the parties were

properly authorised to institute and defend these proceedings and they also placed

before us forms which we in terms of s 169(6) accepted as sufficient security to

enroll the matter.

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[11] We have, however, decided to say a word or two as regards the ‘round robin

resolution’ on which Mr Ncube placed reliance for the authority to institute the

proceedings. Mr Ncube even went to the extent of submitting that a ‘round robin

resolution’ can be equated to a meeting of the Commission. That argument is clearly

untenable and wrong.

[12] The relevant parts of s 12 of the Electoral Act, 2014 on which Mr Ncube

relied reads as follows:

‘Meetings of Commission and decisions

12. (1) Meetings of the Commission are held at the dates, times and places as

the Chairperson of the Commission may determine.

(2) The Chairperson of the Commission –

(a) may at any time convene a special meeting of the Commission;

(b) must convene a special meeting of the Commission if requested in writing

by at least three members of the Commission.

(3) The Chairperson of the Commission presides at all meetings of the

Commission.

(4) If the Chairperson of the Commission is absent from a meeting of the

Commission, the members of the Commission present must elect a member from among

their number to act as Chairperson at that meeting, and the member who so acts has all the

powers and must perform all functions of the Chairperson.

(5) At a meeting of the Commission –

(a) the majority of the members of the Commission constitutes a quorum;

(b) all questions are decided by a majority of votes of the members present and

voting; and

(c) the member presiding, in the event of any equality of votes, has a casting vote

in addition to his or her deliberative vote.

(6) No decision taken by the Commission or act performed under the authority of

the Commission is invalid by reason only of –

(a) a vacancy on the Commission; or

(b) the fact that any person who is not entitled to sit as a member of the

Commission sat as a member of the Commission when the decision was taken

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or the act was authorised, if the decision was taken or the act was authorised

by the requisite majority of the members of the Commission who were present

at the time and entitled to sit as members.

(7) …. ‘

[13] What is abundantly clear from s 12 of the Electoral Act, 2014 is that the

meetings of the Commission must be held on such dates and at such times and

places as may be determined by the Chairperson of the Commission. The quorum

for such meeting must be a simple majority of the total number of members

appointed at that time. A decision of the majority of the members present at a

meeting of the Commission constitutes the decision of the Commission. In the event

of an equality of votes, the person presiding over a meeting of the Commission will

have a casting vote in addition to a deliberative vote. In the matter of Schierhout v

Union Government (Minister of Justice)5 it was held as follows:

‘When several persons are appointed to exercise judicial powers, then in the

absence of provisions to the contrary, they must all act together, there can only be one

adjudication, and that must be the adjudication of the entire body. And the same rule would

apply whenever a number of individuals were empowered by statute to deal with any matter

as one body, the action taken would have to be the joint action of all of them…for otherwise

they would not be acting in accordance with the provisions of the Statute’.

[14] A similar approach was also adopted in Yates v University Bophuthatswana

and Others6 where Friedman J: said;

‘…This implies that there must be full attendance and participation by all the

members of the committee and that they must reach their decisions unanimously or by the

requisite majority. They have been selected for a purpose and that purpose would be

defeated if one or more of them were not present at the time of adjudication. The fact that

they may have conveyed their views to the chairman of the committee individually is

irrelevant. What is important is that they should all have the opportunity to discussing and

considering their respective views in the presence of each member of the committee. The

fact that one or two were unavoidably absent does not cure the position. A time should have

5 Schierhout v Union Government (Minister of Justice)1919 AD 30 at 44.6 Yates v University Bophuthatswana and Others 1994 (3) SA 815 (BGD) at 848G-I.

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been fixed for all of them to be present in order to consider what were very serious and

strong allegations against the applicant’.

[15] This position was restated in Disciplinary Committee for Legal Practitioners v

Makando and Another, Makando v Disciplinary Committee for Legal Practitioners

and Others7 where Parker J (with Siboleka J concurring) said:

‘[32] Indeed, in my opinion, that a binding decision of the applicant can be taken by

the applicant only at the applicant’s meeting is put beyond doubt if regard is had to the

abovementioned sections on quorum. What majority carries a vote, and the chairperson’s

casting vote in addition to his or her deliberate vote. If, for example, one or two members can

take a decision in the privacy of their home, office, or chambers or suchlike places and

approach the rest individually for their endorsement of such decision - not at a meeting of the

applicant where the issue could have been openly discussed and deliberated on by

members who are present and form a quorum - why should the Legislature go into the

trouble of prescribing a quorum and what majority carries a vote, and also provide for the

chairperson’s casting vote in addition to his or her deliberative vote? Any argument that

where there is a consensus there is no need to take the decision at a meeting is, with the

greatest deference, illogical: it misses the point. The question that arises is this: who decides

– and at which venue – whether there is or there has been a consensus? A consensus can

only be reached at a meeting after the issue at hand has been openly discussed and

deliberated on.’

[16] In Norval and Others v Consolidated Sugar Investments (Namibia) (Pty) Ltd

and Others,8 this Court defined a round-robin decision as ‘a written decision or

resolution made in accordance with a round-robin procedure for Executive

Authority’s decisions created by a regulation, rule, article, or policy of the applicable

body and such decision must be signed by all members of the Executive Authority

or, if such regulation, rule, article or policy provides that a round-robin resolution

need not be unanimous, it would still be sufficient if the signatories constitute a

quorum, even though all the directors did not sign the resolution.

7 Disciplinary Committee for Legal Practitioners v Makando and Another, Makando v Disciplinary Committee for Legal Practitioners and Others (A 216/2008,A 370/2008) [2011] NAHC 311 (18 October 2011) at paragraph 32.8 Norval and Others v Consolidated Sugar Investments (Namibia) (Pty) Ltd and Others 2007 (2) NR 689 (HC).

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[17] The Commission is a creature of statute. It thus follows that its existence and

operation must be founded on the statutes and its activities must by large be

executed in compliance with the statute creating it. The round robin method relied

upon cannot be out rightly said not to be defective for not being sanctioned by the

empowering legislation. Existence of a rule creating application of the round robin

process could have permitted members of the Commission to take decisions other

than at meetings requiring a quorum. In the absence of the rule, it is however, of

prime importance to have compelling reasons why it was applied ahead of the

conventional method set out in the Electoral Act, 2014.

[18] In the present matter, the statute establishing the Commission does not make

provision for a round robin resolution, nor were we referred to a regulation, rule,

article, or policy of the Commission authorising it to take a decision or authorising an

act to be performed on its behalf by way of a round robin resolution. It follows that

the decision of the Commission taken on a round robin basis to institute the

application before court is invalid. As referred to earlier, the Commission proceeded

to convene a meeting and passed a resolution according to law. It is on this basis

that we heard the application.

The basis for relief sought by the Commission.

[19] We have indicated earlier that the ECN seeks an order declaring the ballots

cast and the elections held on 25 November 2020 at Koes, Aroab and Stampriet

Local Authorities, as well as Mariental Rural Constituency, null and void and an order

directing the holding of new elections in the local authority areas of Koes, Aroab,

Stampriet and the Mariental Rural Constituency, not later than 14 days from date of

this judgment. The ECN further seeks an order waiving the application of the

processes as contained in s 64(1)(a) as read with s 64(3) of the Electoral Act, 2014.

The basis on which the ECN seeks these Orders is set out in the founding affidavit

deposed to by its Chief Electoral and Referenda Officer, Mr Mujoro.

[20] Mr Mujoro bases the order which the Commission seeks on the premise that

the casting of the ballots and the holding of the elections on 25 November 2020 in

the named three local authority areas and in the Mariental Rural Constituency were

not conducted in terms of the tenor and spirit of the Constitution and in accordance

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with the principles set out in the Electoral Act, 2014. He is of the opinion that the

non-compliance with the Electoral Act, 2014 and the irregularities committed by the

electoral officers are so material that they undermine the credibility, integrity and

fairness of the electoral process in the named local authorities and the Mariental

Rural Constituency.

[21] We, in a summarized form tabulate the non-compliances and the

irregularities chronicled by Mr Mujoro in his affidavit.

Aroab Local Authority

[22] Mr Mujoro in his affidavit states that four political parties namely; the Landless

People’s Movement, Namibia Economic Freedom Fighters, Popular Democratic

Movement and the Swapo Party of Namibia (Swapo), contested the election for the

local authority area of Aroab. He proceeds to state that on 25 November 2020 and

at 06H00 the presiding officer for fixed Team 105, Mr Johannes Benedictus Draaier,

collected the election material from the Aroab Police station. He states that Mr

Draaier and his election officers for the local authority area of Aroab received two

yellow boxes marked Keetmanshoop Rural Fixed 105 and Aroab Local Authority

election.

[23] Mr Mujoro proceeds to state that when Mr Draaier opened the ballot box

written Aroab Local Authority Fixed Team 105, to verify the ballot papers, it was

written Community Hall fixed 101. He then decided not to issue the ballot papers for

use by the voters even though the ballot papers were the correct papers for the

Aroab Local Authority area despite the number 101 instead of 105.

[24] Mr Mujoro states that at that stage, Mr Draaier should have liaised with the

returning officer, Mr Frederich Fleermys, to establish whether Team 101 received the

ballot papers intended for use at the polling stations that that team was serving. Mr

Mujoro continued to state that as the Presiding Officer it was Mr Draaier’s duty to

verify that the ballot books corresponded with the Elect 21, obtained from the box

marked Keetmanshoop Rural Fixed 105. He further states that the Elect 21 form is

for ascertaining that the ballot books in the metal box correspond with the serial

numbers recorded on the ballot books and recorded on Elect 21. Mr Draaier

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furthermore did not complete the requisite Elect 22 to record the serial numbers of

the ballot books he received, which is an administrative form to account for the ballot

papers received by the presiding officer.

[25] It was furthermore Mr Mujoro’s deposition that when the polls opened at

07h00 Mr Draaier observed a queue of approximately 80 people and upon

verification of the first two voters who could not be detected on the Voter Verification

Device, Mr Draaier opted to instead assist with the completion of Form 27 which is a

form used to record the Voter Registration Numbers of voters in possession of a

valid registration card but who do not appear on the Voter Verification Device or the

Manual Voters Register.

Koes Local Authority

[26] Mr Mujoro in his affidavit states that on the 25 th November 2020 at around

05:30 AM, the Presiding Officer for Team 106 (Koes Community Center) in respect

of the Koes, Local Authority area, a certain Mr Alex Donald Lambert, collected the

voting material from the Koes Poling police station. Upon verifying the seals on the

ballot boxes, he observed that one steel box was marked “Keetmanshoop Rural

Fixed 106” and the other yellow steel box was marked “Koës-Fixed 106".

[27] Mr Mujoro further proceeded and testified that when Mr Lambert opened the

boxes containing the voting materials, he did not verify the Elect 21 against the

actual ballot books contained in the yellow steel boxes nor did he complete the Elect

22 to account and verify the ballot books received. He inadvertently removed the

ballot books from the wrong steel ballot box marked Keetmanshoop Rural Fixed 106

and issued them to the polling officer responsible for issuing ballot papers to the

voters for this officer to stamp the ballot papers with the secret mark. Voting then

commenced at the Koes Community Center Team 106 with the incorrect ballot

papers, that is, with the ballot papers meant for voters in the Keetmanshoop Rural

Constituency Fixed polling station number 106. The error was detected at around

14h00 – 15h00 PM and it is at that point that Mr Lambert was instructed to

immediately stop and refrain from continuing with the voting process and issuance of

the local authority ballot papers.

Mariental Rural Constituency and Stampriet Local Authority:

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[28] Mr Mujoro in his affidavit states that on the 25 th November 2020 Team 304,

led by the presiding officer, Mr Gerson Jacob, was assigned to serve three polling

stations namely Glencoin, Kalahari Proef Plaas and the Stampriet Police Cells. Two

of these three polling stations namely Glencoin and Kalahari Proef Plaas are situated

outside the boundaries of the Stampriet Local Authority area and the Mariental Local

Authority area. This means that in terms s 98 of the Electoral Act, 2014 a voter who

casts his or her vote at Glencoin and Kalahari Proef Plaas polling stations could not

cast his or her vote in respect of the candidate for the Stampriet Local Authority area

or the Mariental Local Authority area.

[29] Mr Mujoro further deposed thereto that Mr Lambert opened and inspected the

ballot boxes at the Glencoin polling station which was the first polling station served

by Team 304. Mr Mujoro continued and stated that Mr Jacob, confessed that when

he opened the ballot boxes he was not sure which ballot papers to use. He then

instructed that the local authority ballot papers be used. It was Mr Mujoro’s

deposition that this instruction by Mr Lambert that voters be issued with ballot papers

for local authority elections is contrary to his duties as a presiding officer and

contrary to s 98 of the Electoral Act, 2014. Mr Jacob confirmed that all the voters

who voted at Gleincoin were written ‘not applicable’ for the Mariental local authority.

[30] Mr Mujoro further deposed thereto that Mr Jacob further confirmed that his

Team 304 left Glencoin polling station at 09h00 AM as Mr Jacobs had assumed that

all voters had voted by then. Mr Jacobs further confessed that he was not aware that

they had to stay at Glencoin polling station until 13h00 PM. In terms of the publicized

times that team (team 304) was supposed to have been stationed at Glencoin polling

station until 13h00 PM.

[31] Mr Mujoro further deposed thereto that at the Glencoin polling station, one of

the voters who was due to cast a vote raised a concern with the police officer who

was tasked to serve the poll as a security detail (a certain constable Mervin Ismail)

that the ballot paper issued to him had names of only three candidates instead of the

four candidates for the Regional Council elections as per the Government Gazette

which was publicized by the Commission. Mr Mujoro further testified that when this

anomaly was brought to the attention of the presiding officer, the presiding officer

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simply stated that the candidates for the Mariental Rural Constituency were just

supposed to be three. Mr Mujoro attached a copy of Government Gazette Number

7389 of 16 November 2020 which indicates that the candidates declared as duly

nominated for election as members of the Hardap Regional Council in respect of the

Mariental Rural Constituency were as a matter of fact four in number.

[32] Mr Mujoro further deposed thereto that the returning officer, Ms Martha

Shilimela, only discovered the errors and the fact that the presiding officer (Mr

Jacob) was not aware of the difference between the manner in which the local

authority and regional councils’ elections had to be conducted, at the Stampriet

Police Cells at around 19h30 PM in the evening. The Stampriet Police Cells was the

last destination of team 304. When these errors were detected, the returning officer

retained all the wrongly issued ballot papers and sealed them immediately.

[33] Mr Mujoro further deposed thereto that the ballot papers used for the casting

of votes in respect of the Aroab, Koes and Stampriet Local Authority areas by Team

304 and also in respect of the Mariental Rural Constituency area by team 304 were

not counted and collated and therefore the elections were not completed in the

affected areas.

[34] In the light of the testimony given by Mr Mujoro, he contends that it is clear

that the irregularities, infringe all Namibian’s rights as provided under Article 17(2) of

the Constitution, and that the errors and irregularities were fatal and have the effect

of depriving the citizens of their rights to participate in political activities of their

choice and to choose political leaders to represent them and shape policies that

affect their lives.

The opposing affidavit

[35] The basis on which the fourth and eight respondents oppose the ECN’s

application is set out in the opposing affidavit deposed to by Paul Thomas who is a

member and National Secretary of Membership of the Landless People’s Movement.

Mr Thomas states that the fourth and eighth respondents’ opposition of the ECN’s

application is limited to the taking of the poll in respect of the Mariental Rural

Constituency. He states that the fourth and eighth respondents do not oppose the

17

relief sought by the ECN in respect of the Aroab, Koes and Stampriet local

authorities’ elections.

[36] Mr Thomas further admits that errors and irregularities occurred, but

contends that the Commission has not placed sufficient evidence before the Court to

warrant the ‘drastic measure’ of setting aside the elections. He states that the

irregularities are minor and do not affect the outcome of the elections.

[37] Mr Thomas further contends that the fact that votes casted at polling stations

served by Mobile Team 304 (which are three out of a total of eleven polling stations)

could not be tallied due to errors is not of significance as it will not change the

outcome of the Regional Council Elections which is one of ‘ first past the post’ as

opposed to the local authority results where the winner is declared by way of

proportional representation and a few votes can easily change the allocation of

seats.

[38] Mr Thomas further contends that in the Mariental Rural Constituency, there

are eight polling stations and if regard is had to the extracted Form 37, the candidate

for the Landless People’s Movement garnered the most votes with a total of 869

votes while the party in second place was the Swapo Party with 692 votes. For the

results of Mobile Team 304 to have made a difference, Swapo needs a total of 178

votes from the Glencore, Proef Plaas and Stampriet Police cells to be winners. This,

Mr Thomas contends, is impossible as the population there is much less than any of

the other polling station areas. Swapo party would not have been able to secure 178

votes from Mobile Team 304 as the highest Mobile team had 163 votes, stated Mr

Thomas. For these reasons, Mr Thomas furthermore contends that the errors made

by Mobile Team 304 will have no impact on the outcome of the poll (elections) taken

in respect of Mariental Rural Constituency.

[39] It is against the above sketched back ground that we have to consider the

ECN’s application and the fourth and eighth respondents counter application. In our

view, the question that we have to answer is whether the errors pointed out by the

Commission are of such a nature that they warrant the setting aside of the poll taken

in the elections held on 25 November 2020 in respect of the Aroab, Koes and

Stampriet Local Authorities and the elections held on 25 November 2020 for a

18

member of the Hardap Regional Council in respect of the Mariental Rural

Constituency.

Discussion

[40] The legal framework within which elections are conducted in Namibia was set

out in the recent judgment of the Supreme Court in Itula and Others v Minister of

Urban and Rural Development and Others9 and this court’s judgement in Tjirare and

Another v Chairperson of the Electoral Commission of Namibia and Others.10 We

associate ourselves with the legal principles enunciated there and we will

accordingly not repeat them here.

[41] In our view, the question that has to be answered in this matter is whether the

factual errors that have been set out by Mr Mujoro and conceded to by Mr Thomas

warrant the setting aside of the poll taken in respect of the elections for members of

the Aroab, Koes and Stampriet Local Authorities elections and elections for a

member for the Hardap Regional Council regarding the Mariental Rural

Constituency. This of necessity involves the interpretation of s 115 of the Electoral

Act, 2014 which provides that:

‘115 Immaterial mistakes not to affect validity of electionsNo election may be set aside by any competent Court by reason of any mistake or

non-compliance with this Part, if it appears to the Court that the election in question was

conducted in accordance with the principles laid down therein and that the mistake or non-

compliance did not affect the result of the election.’

[42] In the Itula matter, the Supreme Court with respect to s 115 of the Electoral

Act, 2014 stated the following:

‘The principle contained in s 115 is essentially that a court would be precluded from

setting aside an election where a mistake or non-compliance is not material and where the

election is conducted in accordance with the principles laid down in Part 5. It does not

however necessarily follow that in all other circumstances, that a court must set aside an

election. A court certainly retains a discretion whether to do so or not. In the exercise of that 9 Itula and Others v Minister of Urban and Rural Development and Others(A 1/2019) [2020] NASC 6 (05 February 2020).10 Supra Footnote.

19

discretion a court would have regard to the circumstances of the case before it and grant

appropriate relief as is stated in RDP2.11 We turn to factors taken into account in the

exercise of that discretion.’

[43] Our reading of s 115 of the Electoral Act, 2014 is that the jurisdictional facts

that must be present for a Court to uphold an election are that the Court must be

satisfied that the election in question was conducted in accordance with the

principles laid down in the Act and that the mistakes or non-compliances with the act

do not affect the result of the election. In our view if both those jurisdictional facts are

not met then the Court will exercise its discretion and invalidate the election.

[44] In this matter, the Commission relies on the fact that voters, in the Mariental

Rural Constituency especially at the Glencore, Proef Plaas and Stampriet Police

cells were presented with the incorrect ballot papers by the presiding officer, a

polling station closed four hours earlier than the time when it was supposed to have

closed and voters who were not eligible to cast a vote in the local authority election

casted a vote in the Mariental Rural Constituency particularly the ballot papers that

were utilised at the Glencoin, Kalahari Proef Plaas and the Stampriet police cells. At

those three polling stations, the ballot papers that were presented to the voters only

had three candidates instead of the four candidates that were declared duly

nominated candidates for election of a member of the Hardap Regional Council.

These anomalies, argued the Commission, amounts to disenfranchising a large

portion of voters in the Mariental Rural Constituency and it can therefore not be said

that an election that disenfranchise voters is conducted in accordance with the

principles set out in Part 5 of the Electoral Act, 2014.

[45] Mr Shimutwikeni, who appeared for the fourth and eighth respondents on the

other hand argued differently. He argued that results in the constituency (Regional

Council) elections are determined on the basis of the “first past the post” which is

distinct from local authority elections where the winner of that election is based on a

particular candidate’s share of the total votes casted. He thus continued and argued

that the question of whether or not the principles laid down in Part 5 of the Act were

followed must be considered holistically, that is, considering all the matters deal with

in Part 5 of the Act, such as nomination of candidates, the declaration of duly

11 Para 7.

20

nominated candidates, and the completion of the polling conducted at other eight

polling stations within the constituency. He argued that if those facts are taken into

account, the conclusion that can be reached is that the election was conducted

substantially within the Principles set out in Part 5 of the Act and the Court must thus

exercise its discretion in favour of declaring the votes valid.

[46] Mr Shimutwikeni relying on Itula and Others v Minister of Urban and Rural

Development and Others furthermore argued that the want of compliance with some

of the principles set out in Part 5 of the Electoral Act, 2014 alone does not mean that

the Court is compelled to set an election aside. He argued that the Court must

consider whether the non-compliance will affect the outcome of the poll, which he

argued further that in this case those irregularities chronicled by Mr Mujoro in his

affidavit will in no way affect the outcome of the votes.

[47] Mr Shimutwikeni further argued that the Commission points out the errors

and the irregularities committed by its officials, but despite the fact that it is the

custodian of all ballots and the voters roll, the Commission makes no attempt at all to

show how their mistake effects the results. He argued that the fourth respondent,

that is the LPM and its agents at least attempted to show to the court that the error

did not affect the results. In fact, the duty to show the effect that the errors had on

the results in terms of s 115 is arguably always on the applicant.

[48] We are of the view that as regard the elections held on 25 November 2020 in

respect of the Aroab, Koes and Stampriet Local Authorities, no doubt exists that

those election were flawed to the core. We thus have no difficulties to declare those

elections invalid and set them aside.

[49] As regard the elections in the Mariental Rural Constituency, we are of the

view that as attractive as the arguments of Mr Shimutwikeni sound, they suffer

fundamental flaws. The first flaw is the fact that in respect of the Mariental Rural

Constituency the Commission announced no result of the elections because, the

Commission upon realising the errors aborted the process. It thus begs the question

how is the result not affected if no result was announced.

21

[50] Secondly, reliance on the Itula and Others v Minister of Urban and Rural

Development and Others, the Republican Party of Namibia and Another v Electoral

Commission of Namibia and Others12 and the Rally for Democracy and Progress and

Others v Electoral Commission for Namibia and Others13 matters is not of much help.

We say so because the facts of those cases are distinguishable from the facts of the

present matter. For example, in the Itula matter the Supreme Court said that:

‘[86] In the founding affidavit, the applicants alleged irregularities concerning the

operation of EVMs on Election Day described by the applicants as ‘multiple malfunctions by

EVMs’. It was however pointed out by the respondents that the allegations in the founding

affidavit concerned faulty EVMs at 16 out of 4213 polling stations and that it was not stated

how many alleged malfunctions concerned the Presidential election. Furthermore, counsel

for the respondents pointed out that the allegations of irregularities and malfunctions were

separately answered and refuted by the presiding officers at the respective polling stations

and further that one of the 16 polling stations contended for was non-existent. He also said

some of the complaints were not sufficiently specific (by referring to a constituency and not

to a specific polling station). In a few instances, malfunctioning machines and beeping

occurred and are explained in the answering affidavits. In one instance there was a machine

which stopped for three minutes and later went back on again with no one in the booth when

it stopped. The other incidences of malfunctioning and irregularities are denied by the

presiding officers at the respective polling stations.

[87] Upon the application of the Plascon-Evans rule14 in motion proceedings, the

applicants have established very little in the way of irregularities or machine malfunctioning.

[88] The making of allegations of irregularities without properly establishing them

is entirely unlike the position in the Odinga application in Kenya where systematic illegalities

and systematic irregularities were alleged against that Commission and where the court

found that ‘the illegalities and irregularities committed by the 1st respondent (Commission)

were of such a substantial nature that no Court properly applying its mind to the evidence

and the law. . .can in good conscience, declare that they do not matter and that the will of

the people was expressed nonetheless’.15 In this case, even where machines malfunctioned,

12 Republican Party of Namibia and Another v Electoral Commission of Namibia and Others 2010 (1) NR 73 (HC).13 Rally for Democracy and Progress and Others v Electoral Commission for Namibia and Others 2013 (3) NR 664 (SC).14 As set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635C consistently followed and applied by this court and the High Court.15 Odinga para 379.

22

the applicants did not apply to review electoral materials after initially indicating an intention

to do so. Besides, the applicants do not contend that the machines had been tampered with.’

[51] In the present matter, the ECN points out that a polling station was closed

four hours in advance of the time on which it was scheduled to close, there is

evidence that a voter did turn up at the polling station and found no polling officers.

There is further evidence that the ballot papers utilised by Team 304 contained ballot

papers for a local authority area when at least two of those polling stations are

situated outside local authority areas and the ballot papers only contained three

candidates instead of the gazetted and declared four candidates.

[52] Mr Shimutwikeni’s emphasis on the quantitative aspect of the vote overlooks

the fact that it is not every violation that can be evaluated in quantitative terms. We

are of the view that in determining whether to overturn an election, quantity is as

good as quality. This Court and the Supreme Court emphasized the need for the

Commission to conduct elections that are credible and fair. Can it be said in all

honesty that where there are irregularities (such as those pointed out by the

Commission) that go to the very heart of electoral integrity, that the people have

expressed their will and made their choices? In our view, not. The irregularities that

occurred at Glencoin, Proef Plaas and Stampriet Police Cells are of such a

substantial nature that no Court, properly applying its mind to the evidence and the

law, can in good conscience declare that they do not matter and that the will of the

people was expressed nonetheless.

[53] We are of the further view that having come to the conclusion that the taking

of the poll at Glencoin, Proef Plaas and Stampriet Police Cells was conducted so

badly and in gross disregard of the principles set out in Part 5 of the Act, the

question of whether the result is affected or not does not arise for determination at

all. We find as such for the following reasons: firstly, because it is not possible to

determine with certainty how many voters in the Mariental Rural Constituency were

disenfranchised and secondly, in our view there was no election of which a result

has to be determined.

[54] For the reasons that we have set out in the preceding paragraphs we are of

the view that the casting of ballots for the elections of a member of the Hardap

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Regional Council in respect of the Mariental Rural Constituency was so bad that it

was not substantially in accordance with the principles set out in Part 5 of the Act

and is thus declared void and is set aside. Having come to the conclusion that the

casting of ballots for the election of a member of the Hardap Regional Council in

respect of the Mariental Rural Constituency was so bad and must be set aside, we

now proceed to consider other relief sought by the Commission.

The relief sought by Commission

[55] We indicated earlier in this judgment that the Commission, in addition to

seeking an order declaring the ballots casted and the elections held on 25 November

2020 in the Koes, Aroab and Stampriet Local Authorities as well as Mariental Rural

Constituency void, also sought orders to the effect that the Court must direct the

Commission to hold new elections, in the three local authorities and the and the

Mariental Rural Constituency, not later than 14 days from date of this judgment and

also an order to direct that the process contemplated in s 64 (3) of the Act be

waived.

The holding of a re-run of the poll in the affected areas within 14 days

[56] We are of the view that the starting point is the powers conferred by the Act

on this Court. The powers are set out in s 168 which include the power to hear and

determine appeals against decisions of electoral tribunals; review decisions of

electoral tribunals; adjudicate and decide any matter concerning any contravention of

the Act; hear and determine appeals against decisions of the Commission; review

any decision of the Commission relating to any electoral issues; and hear and

determine any matter which relates to the interpretation of any law relating to

electoral issues referred to it by the Commission. The question is thus whether the

power to hear and determine any matter which relates to the interpretation of any law

relating to electoral issues referred to it by the Commission includes a power to

direct a rerun of the taking of the poll on a specific day.

[57] The determination of polling days is dealt with under Chapter 3, Part 5 of the

Act. Section 64 of the Act in material terms provides that:

24

‘64 (1) (a) If a general election or by-election is to take place in accordance with

section 63, the President must by proclamation in the Gazette make known –

(a) In the case of any such election –

(i) …

(ii) For any member of any regional council, in respect of each constituency

in respect of which the election is to take place;

(iii) For members of any local authority council, in respect of the local

authority area in respect of which the election is to take place,

a date determined by the President, upon recommendation by the Commission, upon

which the submission of nominations of candidates must take place and the place at

which it must so take place;

(b) Subject to subsections (2) and (6), the day determined by the President, upon

recommendation by the Commission, upon which a poll must be taken in the

election; and

(c) the –

(i) name and office of the person appointed in terms of section 65 as

returning officer in the election; and

(ii) if the information of candidates must be submitted under this Act to any

person or body other than the returning officer so referred to, then also

the name and office of that person or body, as the case may be.

(2) …

(3) Any day determined under –

(a) subsection (1)(a) must be a day not less than 15 days and not more than 20

days after the day on which the proclamation referred to in subsection (1) is

published in the Gazette;

(b) subsection (1)(b) must be must be a day not less than 40 days and not more

than 45 days after the nomination day.’

[58] What is abundantly clear is that the power to determine the polling day is

vested in the President on the recommendation of the Commission. It is further more

clear that the polling day is attached to other electoral processes, for example, s 64

provides that the polling day must be a day not less 40 days and not more than 45

25

days from the nomination day. It was undisputedly submitted by Mr Ncube that the

45 days from the nomination date in this matter lapsed at the end of November 2020.

[59] In our view, the reading of s 64 of the Act makes it plain that the Legislature

reserved the determination of the polling day for the President on the

recommendations of the Commission. We hold the view that there is good reason to

restrict the determination of the polling date to the President on the

recommendations of the Commission. Our conclusion is premised on the following:

firstly, encompassed in the determination of a polling date is the determination of the

name or office of the person appointed as a returning officer and other election

officers (as s 65 of the Act) which this court has no such expertise therefore the

Commission is better placed to recommend the determination of the polling date to

the President to make such day known by proclamation in the Gazette; secondly, in

considering that the 45 days within which to hold the poll after the nomination date

has since lapsed, it is the Commission which is better placed to recommend to the

President to determine the polling date.

[60] We thus hold the view that the power to hear and determine any matter which

relates to the interpretation of any law relating to electoral issues referred to it by the

Commission does not include the power to direct that a re-run of the taking of the

poll must take place by a specific day. For all intent and purpose, it appears that the

Commission sucked the fourteen days period from its thumb. There is thus no merit

in the relief sought that this court must order that the new election be held within

fourteen days of the date of judgment, therefore this relief falls to be dismissed.

The waiving of the process prescribed under sec s 64 (3) of the Act.

[61] Section 64(3) of the Act which the Commission implores the Court to order a

waiver, deal with the periods within which a poll is to be taken after a person wishing

to participate in an election have been declared duly nominated. Linguistically the

section is clear: the election must take place not later than 45 days from the date of

nomination of candidates. The basis and authority on which this Court can waive

those provisions have not been placed before Court. We accordingly decline to grant

the relief sought by the Commission.

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Conclusion

[62] We have made an observation which is worth recording. As much as the

Commission can approach the court to rectify material irregularities, it remains the

duty of the Commission to ensure that its election officers are properly trained in

order to ensure credible, free and fair elections. It is incumbent on the Commission

to have mechanisms in place to assess the transfer of election knowledge and skill

to the election officers, and be satisfied that the men and women who are ultimately

tasked to conduct elections on which our democracy starts and rests are well

equipped to serve the election process. We cannot imagine the chaos that may

consequentially follow if the voters come to the realization that some election officers

are found to be wanting in the process of conducting elections. The Commission will

not be approached with kid gloves if it turns out that its election officers are either not

properly trained, assessed or examined to the extent that they may compromise the

elections.

[63] In this case, the commission approached the court admitting that its election

officers seriously compromised the validity of local elections in Koes, Aroab and

Stampriet and regional elections in Mariental Rural Constituency. In setting aside

the voting process, it is unavoidable that the elections in the affected local authority

areas and in the Mariental Rural Constituency have to be repeated and that the

costs to the partaking political parties and independent candidates had to be

duplicated in future.

[64] The political parties and the independent candidates who participated in the

process flawed by the Commission, will have to duplicate their participating efforts in

order to preserve their voters' rights. The question is, is it just and fair that the

political parties and the independent candidates incur such expenses and costs

again. The answer must be a NO. We are therefore of the view that the Commission

must in one way or the other make good and indemnify the political parties and the

independent candidates and contribute to the costs to be incurred by those who

have to partake in a re-run of the elections in the affected local authority areas and

the Mariental Rural Constituency in order to preserve the integrity of the election

process.

27

[65] Mr Ncube who appeared for the Commission argued that the remedy for

those who participated and who are again intend to participate in the rerun of the

elections must lie in the law of delict which will enable them to claim damages. We

do not agree for the simple reason that this matter is not an ordinary delictual matter

but a matter that deals with the practical application and exercise of constitutionally

guaranteed rights. The court has established on evidence an amount to be paid by

the commission to the same parties who participated in the election of 25 November

2020, taking part in the re-run. We are therefore of the view that Article 25 of the

Constitution empowers this Court to fashion an appropriate remedy.

[66] In the result, it is ordered that:

a) The Electoral Commission of Namibia’s failure to comply with the prescribed

periods of time and forms of service, is hereby condoned and the matter is enrolled

as one of urgency in terms of Rule 5(21) of the Rules of this Court.

b) The ballots casted and the elections held on 25 November 2020 in the Koes,

Aroab and Stampriet Local Authorities as well as in the Mariental Rural Constituency

are declared invalid and are set aside.

c) The 4th and 8th respondents’ counter applications are dismissed.

d) There is no order as to costs in keeping with section 171 of the Act.

e) The Electoral Commission of Namibia must for purposes of ensuring that all

political parties, associations or individuals who participated in the taking of the poll

on 25 November 2020, again partake in the re-run of the poll, pay to that political

party, association or individual an amount of N$ 50 000 in respect of the election for

member of the Hardap Regional Council and an amount of N$ 25 000 in respect of

election for a Local Authority Council.

28

f) The Electoral Commission must pay the amounts referred to in paragraph 5 of

this Order only to a political party, association or individual who has participated in

the re-run of the poll.

g) The matter is regarded as finalised and is removed from the roll.

___________________S Ueitele

Judge

___________________H Oosthuizen

Judge

___________________O Sibeya

Judge

29

APPEARANCES:

APPLICANTS: Ncube J

Office of the government Attorney

FOURTH & EIGHTH RESPONDENTS: Shimutwikeni H

Shimutwikeni & Co Inc, Windhoek