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SUMMARY REPORTABLE

CASE No.: A432/09

In the High Court of Namibia:

RDP AND OTHERS v ECN AND OTHERS

PARKER J

2009 December 24

Statute - Section 93 (4) of the Electoral Act, 1992 (Act No. 24 of 1992), as amended by s.14 of the Electoral Amendment Act, 1998 (Act No. 30 of 1998) – Interpretation of – Court finding that the plain and unambiguous words in the clause in the said s. 14 ‘except by order of the court being satisfied by evidence on oath that the inspection or production of any document contained in such packet is required for the purpose of an election application (i.e. s.109 application) …’ must be given their literal meaning in context – Accordingly, Court finding further that making an oath in terms of s.14 serves to demonstrate to the Court the seriousness of the applicant who moves the Court for an order permitting the opening of the s.93 (of Act No. 24 of 1992) packets and the inspection or production of the s.93 election materials contained in the packets and the genuineness of such application (i.e. s.14 application) – Court finding further that allegations by applicant made on oath that the 1^st respondent failed or refused to exercise power or perform duties in terms of Act No. 24 of 1992 (as amended) properly, reasonably or fairly only go to strengthen an applicant’s demonstration of his or her seriousness in bringing the s. 14 application and the genuineness of such application – Consequently Court finding that ‘evidence on oath’ in s.14 is not prima facie evidence on oath required to prove such allegations – Nevertheless, Court finding that the applicants were not entitled to the inspection or production of all the s.93 election materials adumbrated in the Notice of Motion (Prayer 2 thereof) because to grant an order to that effect would fly in the teeth of the clear differentiation between s.14 application and s.109 application – Consequently, Court granting order for inspection of some of the s.93 election materials only, particularly when the 1^st respondent had already agreed to make available to the applicants the documents listed in Prayer 3 of the Notice of Motion.

Statute - Section 93 (4) of the Electoral Act, 1992 (Act No. 24 of 1992), as amended by s.14 of the Electoral Amendment Act, 1998 (Act No. 30 of 1998) – Interpretation of – Court finding that the South African cases of Saul v Allen 1924 TPD 382 and Alberts v Pretorius 1924 TPD 760 are of no real assistance on the interpretation of the said s.14 of Act No. 30 of 1998 because the Court in those two South African cases did not undertake any interpretation of any hue or colour of the provisions of s. 5 of the South African legislation (Act No. 12 of 1918) which are textually similar to the provisions of s. 14 of the Namibian legislation (Act No. 30 of 1998).

Held, that the clause ‘except by order of the court being satisfied by evidence on oath that the inspection or production of any document contained in such packet is required for the purpose of an election application …’ means that what the Court should be satisfied with is that the applicant has sworn on oath that the inspection or production of a s.93 document is required for the purpose of an election application (s.109 application).

Held, further that allegations by applicant made on oath that the 1^st respondent failed or refused to properly, reasonably or fairly exercise power or perform duties in terms of Act No. 24 of 1992 (as amended) only go to strengthen the applicant’s demonstration of his or her seriousness in bringing the s.14 application and the genuineness of such application; consequently s.14 does not impose a duty on an applicant to offer prima facie proof of such allegations in s. 14 application.

Held, further that there is a clear differentiation between s.14 application and s.109 application.

REPORTABLE

Case No.: A 432/09

IN THE HIGH COURT OF NAMIBIA

In the matter between:

RALLY FOR DEMOCRACY AND PROGRESS 1^ST APPLICANT

UNITED DEMOCRATIC FRONT OF NAMIBIA 2^ND APPLICANT

DEMOCRATIC TURNHALLE ALLIANCE 3^RD APPLICANT

CONGRESS OF DEMOCRATS 4^TH APPLICANT

REPUBLICAN PARTY OF NAMIBIA 5^TH APPLICANT

ALL PEOPLES PARTY 6^TH APPLICANT

NATIONAL UNITY DEMOCRATIC

ORGANISATION 7^TH APPLICANT

NAMIBIA DEMOCRATIC MOVEMENT FOR

CHANGE 8^TH APPLICANT

DEMOCRATIC PARTY OF NAMIBIA 9^TH APPLICANT

HIDIPO LIVIUS HAMUTENYA 10^TH APPLICANT

JUSTUS GAROEB 11^TH APPLICANT

KATUUTIRE KAURA 12^TH APPLICANT

BENJAMIN ULENGA 13^TH APPLICANT

HENRY FERDINAND MUDGE 14^TH APPLICANT

IGNATIUS NKOTONGO SHIXWAMENI 15^TH APPLICANT

KUAIMA RIRUAKO 16^TH APPLICANT

FRANS MIKUB GOAGOSEB 17^TH APPLICANT

DAVID SALOMON ISAACS 18^TH APPLICANT

and

ELECTORAL COMMISSION OF NAMIBIA 1^ST RESPONDENT

SWAPO PARTY OF NAMIBIA 2^ND RESPONDENT

MONITOR AKSIEGR0EP 3^RD RESPONDENT

SOUTH WEST AFRICA NATIONAL UNION 4^th RESPONDENT

NATIONAL DEMOCRATIC PARTY 5^TH RESPONDENT

COMMUNIST PARTY 6^TH RESPONDENT

HIFIKEPUNYE POHAMBA 7^TH RESPONDENT

USUTUAIJE MAAMBERUA 8^TH RESPONDENT

ATTIE BEUKES 9^TH RESPONDENT

CORAM: PARKER J

Heard on: 2009 December 22

Delivered on: 2009 December 24

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JUDGMENT:

PARKER J.:

[1] In these proceedings application has been brought by the applicants, and it concerns the Presidential and National Assembly Elections held on 27^th and 28^th of November 2009. Mr Tötemayer SC, assisted by Mr Strydom, represents the applicants and Mr Marcus represents the 1st respondent. There is no appearance by the rest of the Respondents. In any case, the relief in the Notice of Motion is sought against the 1st respondent only; the remainder of the respondents have only cited because they have interest in the outcome of the application. In the limited and constrained time available, counsel were able to submit Heads of Argument to the Court. I am most grateful to Counsel for their commendable industry.

[2] Doubtless, this matter falls into a very narrow and short compass. Mr Tötemeyer confirmed that the application is not in pursuance of mandamus; it has been brought in terms of s. 93 (4) of the Electoral Act, 1992 (Act No. 24 of 1992), as amended by s. 14 of the Electoral Amendment Act, 1998 (Act No. 30 of 1998).

[3] Section 14 of Act No. 30 1998 provides:

No person shall open or inspect the contents of the packets referred to in sub-section (2), except by order of the Court, which may be granted on the Court being satisfied by evidence on oath that the inspection or production of any document contained in such packet is required for the purpose of an election application, or for the purposes of instituting or maintaining a prosecution for an offence in relation to the election in question, and any such order may be made subject to such conditions as to persons and time, place and manner of inspection or production as that court may deem fit.

[4] In the Notice of Motion, the applicants have moved the Court to make an order in terms of the following prayers:

1. Condoning the applicants’ non-compliance with the rules of this Honourable Court and hearing this application on an urgent basis as envisaged in rule 6 (12) of the High Court rules.

(2) Ordering and directing the 1st respondent to forthwith and not later than 16h00 on Friday, 18 December 2009, make available for inspection and allow the applicants to make copies of the following documents as contemplated by section 93 (4) [read with sections 94 (1) and 93 (4) and 85 (7) of the Electoral Act, No. 24 of 1992 (as amended) (‘The Act’)] and more specifically the following documents pertaining to and in respect of the Presidential and National Assembly elections held on 27 and 28 November 2009:

1. All counted ballot papers;

2. All unused ballot papers;

3. All rejected ballot papers;

4. All spoilt ballot papers;

5. The counterfoils of used, rejected and spoilt ballot papers;

6. All voter registration cards seized in terms of section 82 (6) of the Act in 1982 (6) (sic) of the Act;

7. The stamp for the official mark used at each polling station;

8. All ballot paper accounts received from all polling stations by the Returning Officers; and

9. The returns of the Returning Officers as contemplated by section 93 (2) (a) of the Act.

(2) Ordering the 1st respondent to forthwith and not later than 16h00 on Friday, 18 December 2009, make available and allow applicants to make copies of the following documentation:

(a) A copy of the results of the count prepared and announced by the Presiding Officer of each polling station as contemplated by section 85 (6) of the Electoral Act, 1992 (as amended) (‘the Act’);

[b) The return prepared by the Presiding Officer of each polling station as contemplated by section 85 (9) of the Act;

[c] The report by each and every Returning Officer to the Director of Elections prepared in terms of section 87 (2) (b) (i) of the Act setting out the result of the verification executed in terms of section 87 (2) (a);

[d] The announcement of the count by each and every Returning Officer in respect of the Presidential Election as contemplated by section 88 (1) of the Act, as well as their reports to the Chairperson of the Electoral Commission as contemplated section 88 (1) of the Act;

[e] The announcement of the result of the count by each and every Returning Officer in respect of the Election for Members of the National Assembly as contemplated by section 89 (1) of the Act, as well as their reports to the Director of the Elections as contemplated by section 89 (1) of the Act;

(f) The announcement made by the Chairperson of the Commission as contemplated by section 88 (4) of the Act;

(g) A copy of each determination of the Director of Elections made in terms of section 89 (2) of the Act;

(h) Each announcement and declaration made by the Director of Elections in terms of section 89 (3) of the Act;

(i) Each announcement made by the Director of Elections and transmitted to the Electoral Commission in terms of section 89 (5) of the Act;

(j) The list containing the serial numbers of all ballot papers issued in respect of each and every polling station as referred to in section 74 (2) (b) of the Act;

11. The list containing the numbers allotted to the ballot boxes as contemplated by section 74 (2) (a) of the Act;

11. The result of any verification of the elections done by the Director of Elections as contemplated by section 94 of the Act;

11. A copy of each and every of the returns to the Director by the Retuning Officers as contemplated by section 93 (2) (a) and (b) of the Act.

[5] In the alternative to prayers 1 and 2, the applicants have also moved the Court for the following order in prayer 4 thus:

In the alternative to prayers 2 and 3 supra:

1. That a rule nisi do hereby issue calling upon the respondents to show cause on a date to be determined by this Honourable Court why an order in the terms as set out in prayers 2 and 3 above, should not be made final;

2. That an order in terms as set out in prayer 2 and 3 supra, shall operate as interim interdict with immediate effect, pending the return date.

Additionally, the applicants have moved the Court for a costs order in Prayer 5 thus:

Ordering those respondents who may oppose the application to pay the costs thereof consequent upon the employment of one instructing and two instructed counsel.

There is also prayer 6 which is for further or alternative relief.

[6] The matter was set down to be heard on Friday, 18 December 2009. But by agreement between the parties, the hearing was postponed to the following Tuesday. It was also to allow the 1^st respondent to file answering papers. Upon the authority of Hewat Beukes t/a M C Bouers and others v Luderitz Town Council and others Case No. A 388/2009 (judgment on 3 March 2009) (Unreported), I was, in any case, going to give Mr. Marcus adequate time to file 1^st respondent’s answering papers before I heard the application. That being the case, I shall make no order as to costs in respect of the 18 December postponement. I also note that although the applicants raised a point in limine, Mr. Tötemeyer informed the Court that the applicants were not persisting in their preliminary objection. I also note that it was not disputed that the application be heard on urgent basis, considering the time limits for bringing s.109 application, if the applicants were so advised to take that route.

[7] Logically, our next port of call is the interpretation and application of s.14 of Act No. 30 of 1998. The rule is firmly established in the practice of this Court that in interpreting statute recourse should be first be had to the golden rule of construction because the plain meaning of the language in a statute is the safest guide to follow in construing the statute. According to the golden or general rule of construction, the words of a statute must be given their ordinary, literal or grammatical meaning and if by so doing it is ascertained that the words are clear and unambiguous, then effect should be given to their ordinary meaning unless it is apparent that such a literal construction falls within one of those exceptional cases in which it will be permissible for a court of law to depart from such a literal construction, for example, where it leads to a manifest absurdity, inconsistency, hardship or a result contrary to the legislative intent; see Jacob Alexander v The Minister of Justice and others Case No. A210/2007 (judgement on 2 July 2008) (Unreported) at pp. 18-19 where the relevant authorities are approved and relied on. In Tinkham v Perry [1951] 1 All ER 249 at 250E, which Hannah J cited with approval in Engels v Allied Chemical Manufacturers (Pty) Ltd and another 1992 NR 372 at 380F-G, Evershed MR stated succinctly, ‘plainly, words should not be added by implication into the language of a statute unless it is necessary to do so to give the paragraph sense and meaning in its context.’

[8] In my opinion, the words in s. 14 of Act No. 30 of 1998 are clear, plain and unambiguous and so they should be given their literal and grammatical meaning, and, in my opinion that will not lead to any manifest absurdity, inconsistency, hardship or a result that is contrary to the legislative intent. On this score I accept Mr Marcus’s submission that the interpretation that I put on s. 14 of Act 30 of 1998 should not be contrary to the legislative intent; for instance, counsel argued, the intention of the legislature was not to open a floodgate of requests for the inspection or production of documents contained in the packets referred to in s. 93 of Act 24 of 1992 (‘the s. 93 election materials’). On this point I cannot do any better than to repeat what I said in Jacob Alexander v The Minister of Justice and others supra at p. 21:

The stupendous difficulty, which faces any argument that claims better knowledge of what the Legislature intended than what the Legislature actually had in mind when it expressed itself clearly as it did in the … Act, is to put forward without any justification, the unexpressed intention of the Legislature.

[9] Of course, in all this, the plain, clear and ambiguous words of s.14 of Act No. 30 of 1998 should be given their literal meaning, ‘but literal meaning in total context.’ (See G E Devenish, Interpretation of Statutes (1992): p. 37, approved by this Court in HN, JS, HM, LM, MI, and NH and others v The Government of the Republic of Namibia Case Nos. I 1603/3008, I 3518/2008, I 3007/2008, I 2692/2008, I 3519/2008, I 3515/2008 at p. 16.) I have relied on the authorities and in particular I have given the words in the clause (in s.14 of Act 30 of 1998) ‘which may be granted on the Court being satisfied by evidence on oath that the inspection or production of any document contained in such packet is required for the purpose of an election application …’ their ‘literal meaning in total context’, as I should. And having done that, I come to the only reasonable and inexorable conclusion that those words mean that what the Court should be satisfied with is that the inspection or production of an election material in the s. 93 packets is required for the purpose of an election application (i.e. s.109 application). The only further requirement is that the applicant must place before the Court an affidavit in which he or she or it makes a statement to that effect. To argue contrariwise, as Mr. Marcus did, is to arrogate to oneself a better knowledge of what the Parliament intended than what the Parliament actually had in mind when it expressed itself clearly as it did in s.14 of Act No. 30 of 1998, and to put forward, without any justification, the unexpressed intention of the Parliament.

[10] As I say, the above-quoted words in s. 14 of Act No. 30 of 1998 are so clear and unambiguous that it offends the authorities (as referred to previously) to add words by implication into the language of s. 14 of Act No. 30 of 1998; it is not necessary to do so. The literal meaning of the words in total context is that which I have set out above. That meaning cannot lead to a manifest absurdity, inconsistency, hardship or a result contrary to the legislative intent. Indeed, Mr. Marcus did not point to any acceptable absurdity that such interpretation will lead to. In this regard, it would seem Mr. Marcus was more concerned about the high cost involved in the inspection or production of the s.93 election materials. Of course, this Court, as a State organ, must take into account the matter of expenses and expenditure involved in a State activity. However, this issue should not be taken too far as to stifle the Court in the carrying out of its judicial duty of interpreting and applying statutes, in particular statutes like Act No. 24 of 1992, as amended, that seek to promote and strengthen the triadic ideals of democracy, human rights and the rule of law which nourish the very life and soul of the Namibian Nation, just because the implementation of any Order of the Court thereanent will result in a high monetary expenditure for the Fiscus. In this regard, what Mr. Marcus fails to appreciate is the ominous alternative which cannot be quantified in Dollars and Cents. As I see it, s.93 (4) of Act No. 24 of 1992, as amended by s.14 of Act No. 30 of 1998, is a safety valve through which a person or a Party that feels aggrieved by the conduct of the 1^st respondent in elections may seek redress and solace. It is by far safer and cheaper on any pan of scale – politically, socially and economically.

[11] Be that as it may, that is not the end of the matter. Mr. Marcus referred the Court to two South African cases to support his interpretation of the aforementioned words of s.14 of Act No. 30 of 1998. There, the South African Court was seized with the application of subsections (5) and (6) of the South African Electoral Act, 1918 (Act No. 12 of 1918) which read:

(5) No person shall be allowed to inspect any rejected ballot papers in the custody of the Minister or an administrator, except under the order of the court, which may be granted by the court on its being satisfied by evidence on oath that the inspection or production of such ballot papers is required for the purpose of instituting or maintaining a prosecution for an offence in relation to ballot papers or for the purpose of a petition questioning an election or return; and any such order for the inspection and production of ballot papers may be made subject to such conditions as to persons, time, place, and mode of inspection or production as the court may think expedient. Any power given to the court by this section may be exercised by any judge of the court in chambers.

(6) No person shall, except by order of the court, open the sealed packet of counterfoils after the same has been once sealed up, or be allowed to inspect any counted ballot papers in the custody of the Minister or an administrator; such order may be made subject to such conditions as to persons, time, place, and mode of opening or inspection as the court may think expedient : Provided that, on making and carrying into effect any such order, care shall be taken that the mode in which any particular voter has voted shall not be discovered until he has been proved to have voted and his vote has been declared by a competent court to be invalid.

[12] The two cases are Saul v Allen 1924 TPD 382 and Alberts v Pretorius 1924 TPD 760. I do not think Alberts v Pretorius is of real assistance on the point under consideration for the following reasons. At 762 of Alberts v Pretorius, the Court there compared subsection (5) with subsection (6) of the South African legislation and held that no limitation (as is imposed by subsection (5) on the Court) is found in subsection (6) of that Act; and that in terms of subsection (6) of the Act, the Court would have power to grant an inspection for the purpose of recounting the votes so as to ascertain whether a mistake has not been made. It is the provisions of subsection (5) of the South African legislation that are nearer textually to the provisions of s. 14 of Act No. 30 of 1998. Alberts v Pretorius concerns subsection (6) of s. 56 of the South African legislation. I, therefore, direct my attention to Saul v Allen. I must, at the outset, signalize the point that in order for counsel to successfully persuade the Court to accept the interpretation of certain provisions of legislation from a foreign jurisdiction by a court of that foreign jurisdiction, the words used which go to the root of the statute must textually be similar to the words used in the Namibian legislation, taken as a whole. It is also worth noting that the South African legislation did not apply to Namibia.

[13] In any case, s. 55 (5) of the South African legislation concerns rejected ballot papers only. The s. 93 (of Act No. 24 of 1992) election materials are by far more extensive, covering almost all electoral materials, including ballot paper accounts, and returns thereof. A fortiori – and this is superlatively important – Mason JP did not undertake, not even a modicum of, an exercise of the interpretation of s. 55 (5), as I have done with regard to s. 14 of Act No. 30 of 1998 in these proceedings. A priori, Mason JP did not propose any principle of law as to the correct interpretation of s. 55 (5) of Act No. 12 of 1918. It is significant to note that the learned Judge President did not use the phrase ‘prima facie’ anywhere in his judgment. The phrase only appears in the summary of the judgment, introduced by the law reporter; and more important, the decision of the Court in Saul v Allen supra on the merits can be gathered from what the learned Judge President held; that it to say –

That applicant would only be entitled to such an order in connection with a proposed election petition, that the Court had no power to extend the prescribed statutory period of forty-two days and would therefore not grant the application for the purpose of an election petition which could not be presented”.

[14] I have taken some time to treat the two South African cases because it appears they are the talisman on which Mr. Marcus hangs the 1^st respondent’s case and also to show that those cases are not of any real assistance on the point under consideration, namely the correct interpretation of s. 14 of Act No. 30 of 1998. It follows that counsel’s introduction of the notion of ‘prima facie’, based, according to counsel, on the two South African cases is, with respect, baseless: it only helps to obfuscate what appears to be a straightforward and simple matter of interpretation and application of the clear and unambiguous provisions of a statute.

[15] From all the above reasoning and conclusion, I hold that the evidence on oath is not a ‘prima facie evidence on oath’. The Act does not say so, and the Court is not entitled to add these words by implication to the clear and unambiguous words of s. 14 of Act No. 30 of 1998. The deponent must depose to an affidavit in which the deponent states that the inspection or production of the s. 93 election materials are required for the purpose of making s. 109 application. The making of an oath serves an important purpose. It serves to demonstrate to the Court the seriousness and genuineness of the request; and the deponent puts himself or herself in the line of punitive measures if it turns out in due course that the deponent had lied on oath; he or she did not require the s. 93 election materials for a s. 14 purpose. Nevertheless, in order to strengthen the case of the applicant that he or she is serious and truthful in his or her request to the Court, she or he ought to point to some conduct of the 1^st respondent (and its agents) that has led to his or her making the s. 14 request. I do not, for reasons articulated previously, read the language of s. 14 of Act No. 30 of 1998 to go so far as to impose a duty on an applicant to make a ‘prima facie’ case in a s. 14 (of Act No. 30 of 1998) application.

[16] From the papers, I have no good reason to hold that the applicants have not shown a serious and genuine desire to bring s. 109 application in due course. Additionally, from the papers, I am satisfied that the applicants have pointed to certain serious and substantial conduct of the 1^st respondent (and its agents) that tend to show that the 1^st respondent failed or refused to exercise its power and perform its duties under Act No. 24 of 1992, as amended, lawfully, reasonably and fairly in terms of that Act. It is no burden of this Court at this stage to decide whether the applicants will succeed with the allegations of unlawful and improper exercise of statutory power in terms of Act No. 24 of 1992, as amended, by the 1^st respondent (and its agents).

[17] For the foregoing conclusions and reasoning, I find that the applicants have made out a case for the exercise of my discretion in favour of granting the s. 34 order. But that is not the end of the matter. Mr. Marcus submitted that the Prayer 3 documents that the 1^st respondent had agreed to make available to the applicants should be adequate for the purpose of bringing s. 109 application. Mr. Tötemeyer argued the opposite way to the point that the applicants need the Part 2 election materials, too, in order to make a proper evaluation of the Prayer 2 documents in juxtaposition to the Prayer 3 documents.

[18] I accept Mr. Marcus’s argument that the Prayer 2 request is overbroad, particularly considering the fact that the applicants will now have the Prayer 3 election materials whose availability was not within their reach when they filed the Notice of Motion in the first place. I also accept Mr. Marcus’s submission that Congress of Democrats and others v Electoral Commission 2005 NR 44 is not relevant for our present purposes simply because the Court in that case was not called upon to interpret s.14 of Act No. 30 of 1998. Apart from these considerations, there is the view I have already taken concerning the correct interpretation of s.14 of Act No. 30 of 1998, particularly, as to what the Court may be satisfied with before exercising its discretion. Having taken all these factors and considerations into account, I come to the conclusion that to grant an order in terms prayed for by the applicants in Prayer 2 will fly in the teeth of he clear differentiation between s.109 (of Act No. 24 of 1992) application and s.14 (of Act No. 30 of 1998) application; and what is more, it is not a precondition that a s. 109 application may only be made after a s.14 application has been made. Nothing prevents the applicants from lodging a s.109 application and having any serious allegations of theirs tried out in the ordinary manner. (See Saul v Allen supra at 384.) I make these observations to show that to grant a s.14 order, incorporating all the items from (a) to (i) in the Notice of Motion will, without a doubt, amount to ordering a recount of the votes without consideration and determination of a s.109 application. Such an order, in my opinion, will therefore be unreasonable and unfair and unsatisfactory. As I have said previously, the applicants have made out a case for the grant of a s.14 order, but they are only successful to the extent set out in the Order below.

[19] I now proceed to consider the issue of costs. I accept Mr. Tötemeyer’s submission that the applicants should have their costs as respects Prayer 3 because the 1^st respondent only agreed to the applicants’ request after the hearing of the application was postponed on 18 December 2009 to 22 December 2009. But I think costs should be costs up to the 18^th of December 2009. As respects Prayer 2, the applicants have not chalked up substantial success and so I will make appropriate costs order accordingly.

[20] In the result, I make the following order:

(1) The applicants’ non-compliance with the Rules of Court is condoned, and further that the matter be heard on urgent basis.

2. As agreed between the 1^st respondent and the applicants, the 1^st respondent shall make available to applicants within the time limit stated in paragraph (3) of this Order for applicants’ inspection or production thereof, at applicants’ own cost, the election materials listed in Prayer 3 of the applicants’ Notice of Motion.

3. The 1^st respondent must, not later than 16h00 on Monday, 28 December 2009, make available for inspection or production by the applicants, at the applicants’ own cost, of the election materials listed below in this paragraph of this Order, contained in the packets referred to in s. 93 (1) to (3) of Act No. 24 of 1992, pertaining to and in respect of the Presidential and National Assembly Elections held on 27 and 28 November 2009:

(a) The counterfoils of used, rejected and spoilt ballot papers.

(b) All voter registration cards seized in terms of s. 82 (6) of Act No. 24 of 1992, as amended by s. 36 (f) of Act No. 23 of 1994.

(c) All ballot paper accounts received from all polling stations by Returning Officers.

(d) The returns of the Returning Officers referred to in s. 93 (2) (a) of Act No. 24 of 1992.

(4) The 1^st respondent is accordingly permitted to open the packets that contain the election materials referred to in paragraph (3) of this Order: provided that the opening and resealing of the packets must be done in the presence of the 10^th, 11^th, 12^th, 13^th, 14^th, 15^th, 16^th, 17^th, and 18^th applicants or their representatives, authorized in writing in that behalf: provided further that the 1^st respondent must, in writing, inform the aforementioned applicants (or their aforementioned authorized representatives) on what date and at what time the opening and resealing of the packets are to take place, and at what venue.

(5) The 1^st respondent is authorized to call a meeting with the aforementioned applicants (or their aforementioned representatives) in order to discuss the modalities respecting the inspection or production of the aforementioned election materials, and such matters as the security and supervision of the process so as to ensure an orderly and a peaceful process.

(6) The 1^st respondent must pay the applicants’ costs for up to and including 17 December 2009 in respect of Prayer (3) of the Notice of Motion; such costs to include costs occasioned by the employment of two instructed counsel.

(7) There shall be no other order as to costs.

_____________________

PARKER J

ON BEHALF OF THE APPLICANTS: Adv. Tötemeyer, SC

Adv. J A N Strydom

Instructed by: Theunissen, Louw & Partners

ON BEHALF OF THE 1^ST RESPONDENT: Mr N Marcus

Instructed by: The Government Attorney

ON BEHALF OF THE 2^ND – 9^TH RESPONDENTS: No appearance

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