Ketlogetswe's dissenting judgement
Tsaone Basimanebotlhe | Friday February 21, 2020 16:25
Boitshwarelo, who was an independent council candidate during the 2019 general elections, petitioned the election results saying they were not free and fair. A panel of three judges Ketlogetswe, Omphemetse Motumise, Itumeleng Segopolo heard his appeal.
The majority judgement dismissed Boitshwarelo’s election petition case with costs Wednesday afternoon. “In the present case two things, in my judgement, occurred.
Firstly there was a mistake by the voters in the manner they marked their respective ballot papers by not marking in the space provided for making the X cross on the ballot paper. I do not agree that a voter can make X cross anywhere on the ballot paper including on the spaces for the party symbol or abbreviation, or party name as happened in some ballot papers now sought impugned.
The design of the ballot paper by the IEC is the exercise of a power granted by statutory provisions in terms of the Electoral Act. Voters, in my judgement cannot choose how and where to place their mark when voting. They must comply with the directions of the IEC if certainty is to be objectively ascertained in the making of their choice. Every voter must vote in the prescribed manner,” Justice Ketlogetswe said.
He said the fact that there are no rules under the Act prescribing how a ballot paper should be designed by the appropriate authority being the IEC cannot be valid excuse for creating uncertainty and room for conjecture in the conduct of elections, where everything is left for guess work and suppositions.
In addition Ketlogetswe said there is no version from IEC as to how or to why the ballot papers now sought to be impugned were accepted by the returning officer.
In Ketlogetswe’s view if the argument is that if those ballot papers are rejected ought to be, the concerned voters would thereby be disenfranchised, they only have themselves to blame.
“ They would have failed to comply with a method of voting authorised by the IEC in terms of the way the ballot paper has been designated to ascertain, objectively and without surmise as what the voter may have intended,” he said. Ketlogetswe said the presiding officer had contravened the Electoral Act by accepting the 26 ballot papers now sought to be impugned.
In Ketlogetswe’s judgement, the appeal had succeeded. The majority judgement by Justices Segopolo and Motumise said: “the ballot papers in question were valid and Kgosiesele was dully elected as councillor for Mmashoro ward. The elections were free and fair. The intention of the voter was clear on which party he had wanted to vote and therefore those ballot papers cannot be rejected simple because the mark was not in a designated box but rather by party symbol”.