Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
23 April 2019

Why the casting and counting of ballots will probably be free and fair

In two weeks’ time about 55% of South Africa’s eligible voters will cast their ballots in national and provincial elections. About 45% of eligible voters (many of them not registered to vote) will not bother to go to the polls. Those who plan to vote for the political party of their choice (and therefore indirectly for the individuals on the political party’s electoral list), will hope that their vote will make a difference. But how fair is the system regulating the voting process as well as the counting of votes?

Political parties who are disappointed with their electoral showing often complain that the election was not free and fair. Strangely, such parties seldom complain about the alleged unfairness of the election campaign. Instead, most parties who are unhappy with the election results, accuse other parties or the IEC of massive vote rigging or rigging of the count.

But in most modern democracies the potential unfairness mostly occurs during the election campaign and not during the voting and the counting of votes. For example, in South Africa – where the public broadcaster dominates the media landscape – opposition parties often complain that the SABC provides an unfair advantage to the governing African National Congress (ANC) by providing disproportionate time to reporting of ANC election events and by providing disproportionately more positive coverage of the ANC.

Smaller parties also complain that they have far less resources than the ANC or even the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF) and that this places them at an unfair disadvantage. After all, without money (money which may have been donated by unscrupulous or corrupt businesspeople or companies) no political party can run an effective election campaign.

Increasingly, there is also the problem of Twitter bots employed by political parties to flood social media with false claims or smears against opponents. Then there are those slightly unhinged supporters of some political parties (well, mostly from the party dominating Twitter) who respond to any unflattering news reports or opinion pieces about their party and its leaders with violent threats and tired clichés masquerading as insults.

It is also impossible to completely eliminate the subtle and not so subtle intimidation of potential voters – although such intimidation is a criminal offence. Nor is it possible to bring to a complete stop pork barrel politics, which happens when governing parties use state resources shortly before the election to “bribe” voters with goods and services not usually delivered in between elections.

But because it is very difficult to measure how free and fair an election campaign has been, a court is not likely to declare an election invalid because one party may have had an unfair advantage in getting its message across.

Perhaps this is why political parties who are disappointed with the outcome of an election are more likely to complain that they were robbed because of massive vote rigging. However, such claims should be taken with a pinch of salt as it is very difficult to stuff ballot boxes or rig the counting of votes.

The reason why widespread rigging of the voting and the counting of votes would be very difficult, is because the Electoral Act allows the agents of political parties to oversee both the voting and the counting process. As long as agents of different political parties are present at each voting station, the results should provide an accurate reflection of voter intensions.

Section 58 of the Electoral Act allows every registered party contesting an election to appoint two party agents for each voting station, and four party agents for the IEC results centre. Section 59 allows party agents to observe the entire voting process as well as the entire counting process.

Immediately before the polling station opens for voting the presiding officer is required to show all agents present that each ballot box to be used at that voting station is empty and must then in the presence of those agents close and secure the ballot boxes. This is to prevent the stuffing of ballot boxes before the start of the election.

Of course, stuffing of ballot boxes can also occur after closing of the polls and before counting begins. It is for this reason that the Electoral Act requires presiding officers to seal ballot boxes in the presence of political party agents and also account for all voting material.

Agents who suspect that a person who is not registered to vote is being allowed to vote, or that a person who has already voted is being allowed to vote again, has a right to object to this. Agents are also allowed to object to a decision to refuse to allow a potential voter to vote. The presiding officer must then make a ruling on the objection, but this ruling can be appealed to the Electoral Commission.

If the objection concerns an aspect of an election that is material to the final result of the election, the decision of the Electoral Commission can be appealed to the Electoral Court (and ultimately the Constitutional Court). The Electoral Court will only hear the matter if the objection relates to an issue that could actually have an impact on the outcome of an election and will not here objections about minor problems.

Party agents similarly have a right to object against any alleged irregularity in the sorting of ballot papers or alleged inaccuracies in the counting of ballot papers. A ruling on such objections can similarly appealed to the Electoral Commission or – if they may have an impact on the outcome of the election – to the Electoral Court.

The Electoral Court has extensive powers to intervene to correct any serious irregularities. Section 56 of the Electoral Act states that when the Electoral Court finds that a serious irregularity has occurred concerning any aspect of an election, the Electoral Court may order:

(a) that the votes cast at a particular voting station do not count in whole or in part; or (b) that the votes cast in favour of a registered party or candidate at a particular voting station must be deducted in whole or in part from the votes cast in favour of that registered  party or candidate in that election.

But the Electoral Act grants even wider powers to the Electoral Court to punish political parties, party leaders or party members who break the electoral rules. This includes intimidating or bribing voters to vote for your party or not to vote for another party, trying to get non-registered voters to vote, trying to vote illegally, printing fake ballot papers and a slew of other fraudulent activities.

Section 96(2) of the Electoral Act allows the Electoral Court to impose any appropriate penalty on a person or party who contravenes these rules. An appropriate penalty includes, among other things:

  • a fine not exceeding R200 000;
  • the forfeiture of any deposit paid by that person or party;
  • an order prohibiting that  person or party from using any public media; holding any public meeting, demonstration, march  or other political event; entering any voting district for  the purpose of canvassing voters or for any other election purpose; erecting or publishing billboards, placards or  posters at or in any  place; publishing or distributing any  campaign literature; electoral advertising; or receiving any  funds  from the  State or  from any foreign sources;
  • an order excluding that person or any agents of that person or any candidates or agents of that party from entering a voting station;
  • an order reducing the number of votes cast in favour of that person or party;
  • an order disqualifying the candidature of that person or of any candidate of that party; or
  • an order cancelling the registration of that party.

This means that a party who gets caught stuffing ballot boxes or intimidating or bribing voters could either be disqualified from the election or could have a substantial number of its votes taken away from it.

Of course, despite all these measures to secure the vote and ensure the accurate counting of ballots, it is not inconceivable that minor cheating will occur during the voting and counting process. Look out on election day for reports on social media reporting alleged voting or counting irregularities. Some of these reports will be false. Others will be true but will reveal only minor irregularities affecting a few votes. Best not to get hysterical about either of these situations.

It is only when there is credible evidence of substantial irregularities that could actually change the result of the election by changing the final number of seats won by each party (roughly, cases where 30 000 or more ballots are in dispute) that should raise serious alarm.

This does not mean that political parties and voters should not remain vigilant and should not report even minor irregularities as this helps to hold electoral officials and the Electoral Commission to account. It just means that we should keep in mind that no court will nullify an election because 5 or 10 votes were wrongly cast or counted.

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