The inquiry to oust IEC head Pansy Tlakula is unlikely to be resolved before elections, but some applicants say they expected this.
Pansy Tlakula will unlikely be forced to step down as head of the Independent Electoral Commission before Wednesday’s national election, despite the court action brought against her by five political parties.
The Electoral Court on Friday decided to hear the matter despite it being unlikely that Judge Lotter Wepener and his colleagues would be able to make a determination before Wednesday.
The United Democratic Movement (UDM), African Christian Democratic Party (ACDP), Congress of the People (Cope), Agang SA and the Economic Freedom Fighters (EFF) had approached the court asking judges to recommend she be removed from her post.
But one of the key figures in the case against Tlakula, UDM leader Bantu Holomisa told the Mail & Guardian he had always expected a delay – and that he would respect the outcome of the election regardless.
“It was always clear because you are not going to summon Parliament between now and the day of the election,” he said during a lunch recess outside the high court in Johannesburg, where the Electoral Court is sitting. Parliament is the institution that can order Tlakula to step down.
“But what I’m happy about is that the process has started and you will remember she has been trying to dodge her way out of this.”
One of Holomisa’s co-applicants and fellow campaigner for Tlakula’s removal is the EFF, which have been far more vociferous on the matter. The EFF’s Julius Malema has threatened “civil war” and not accepting the results of the election if Tlakula was in place, a tactic analysts and others have described as a case of hedging his bets, should the EFF perform less successfully than the victory it has been assuring their supports, which will likely not happen.
But Holomisa, who has entered into a close relationship with the EFF, has said that particular stance was the EFF’s “baby” and he would not condone such action.
“The commission has assured us that irrespective of whether [Tlakula] is in or out, elections will continue,” said Holomisa. “Systems are in place. We are sending a statement that not all of us in this country are prepared to celebrate maladministration and even condone it.”
The 11th-hour inquiry by Holomisa’s party and others was a result of manipulation, in Holomisa’s view. He was the original whistle blower on the botched leasing deal Tlakula is before court about.
But he says he had to wait for the recommendations of the public protector to be concluded before taking legal action, including the release of treasury’s forensic report into the matter. Like the public protector, treasury’s report also found Tlakula and others in her office responsible for misconduct and failing to follow proper processes in procuring the R320-million lease for the IEC’s new headquarters at the Riverside Office Park in Centurion.
But it appears the IEC sat on treasury’s report for several months. The report was dated to have been released on December 14 2013 but was only made public on March 18 2014. “They received it around December,” said Holomisa. “I wrote letters asking for it and only when I threatened to go to court did they release it.”
Tlakula’s legal counsel, Daniel Berger, had a heated exchange with Wepener on Tuesday. Wepener had ruled that Tlakula needed to provide a response to the parties’ application by 5pm on Thursday, despite Berger pleading it was not enough time to put one together. Tlakula’s legal counsel received the response at 7pm, leaving them with very little time to put together heads of argument, said Berger.
However, Wepener acceded to the parties’ legal counsel David Unterhalter’s view that the court should hear their arguments in case it was able to reach a deliberation before the election. He offered to allow Tlakula’s legal team to “decide what to do after that”.
Unterhalter, arguing for Tlakula’s removal, launched into an attack on her affidavit, submitted the evening before, identifying inconsistencies with her previous argument before Parliament.
Unterhalter also took issue with the blame game that surrounded the wrong shortlisting process of potential bidders, which saw Khwela City Property Services being excluded for not providing a soon enough date of occupation at the premises, despite Abland, who was eventually chosen, providing an even later date.
Tlakula has blamed the manager of her office at the time, Stephen Langtry, for the error as she was away. “You have the head of the executive saying, ‘I didn’t take any steps that what was placed before exco [executive committee] was correct information’,” said the parties’ counsel.
“The buck stops with her. It doesn’t matter if others were complicit with her illegality; she as the accounting officer under our law bears responsibility for these actions and it doesn’t help her to invoke collective responsibility,” he added, referencing Tlakula’s argument that the exco made the decision to choose Abland in her absence.
“What you have here is simply a shambles going on different officials pointing at each other, saying they were to blame, not me,” said Unterhalter.
He also picked apart Tlakula’s conflict of interest in remaining involved in the bidding process despite her business partner in a separate company, Thaba Mufamadi, being involved in Abland as the company’s BEE partner.