The embattled head of the Independent Electoral Commission (IEC) Pansy Tlakula has a few months more to prepare for the legal fight of her life – and gets to stay in position during the country’s fifth national election on Wednesday.
On Friday electoral court Judge Lotter Wepener adjourned the matter to June 2, during an inquiry into an 11th-hour application brought on Tuesday by five parties asking him to recommend that Tlakula step down before the elections. The inquiry started on Friday after affording just 48 hours for Tlakula’s legal team to submit responding affidavits and appear in court a day later, much to their dismay.
Thanks to a series of legal manoeuvres, Tlakula’s team left the Electoral Court with little choice but to wait until after elections to deal with the matter, in what the parties who brought the application believe was thanks to delaying tactics.
The five parties who brought the application, United Democratic Movement (UDM), African Christian Democratic Party, Congress of the People, AgangSA and the Economic Freedom Fighters (EFF), had to wait until treasury’s forensic audit into the botched leasing deal that had precipitated the crisis was released.
However the IEC sat on the report for three months, releasing it to the public on March 18 2014, after it was published on December 14 2013.
By the time legal teams for the parties filed papers on April 17, the clock was ticking dangerously closer to the May 7 election, which they did not want Tlakula to manage, saying she would compromise the integrity of the election given her problematic role in the leasing deal.
The court only set down the matter on April 24 for Tuesday this week, creating a further delay and giving each team one working day to prepare. Tlakula’s legal team have appeared to latch onto this urgency to argue they cannot respond adequately within the time frames, despite papers being filed on the 17th.
The matter was heard on Tuesday, 48 hours was given to Tlakula’s team to come up with a response by 5pm on Thursday which they only managed to get in by 7pm, and the matter resumed on Friday at 10am, a mere day later. And while the parties’ legal team came prepared, presenting three hours of argument based on Tlakula’s affidavit that was filed last night, Tlakula’s team said they had not had enough time to prepare an argument.
With five days to go before the election, the Electoral Court has a number of other matters to deal with, including the application by activist and politician André Lotter arguing for the commission to be dissolved and elections be postponed.
It’’s little wonder then that Wepener has postponed the matter to June 2, essentially acceding to Tlakula’s legal team’s arguments.
The inquiry on Friday started at 11am and dragged on with three hours of arguments from David Unterhalter, legal counsel for the parties, which left Tlakula’s lawyer Daniel Berger with little time to respond – not that he could do much given that he did not have time to prepare, he told the court.
Tlakula had a “right to a fair hearing, which includes a full and proper argument”, Wepener told the court after an hour-long adjournment from 3pm to deliberate whether to continue or not.
Tlakula’s team now has till May 19 to submit further evidence in their favour, and both teams are required to submit heads of argument by May 28.
Public protector Thuli Madonsela released a damning report on the IEC’s procurement of its R320-million Centurion offices from property developer Abland in August 2013. It was followed by a forensic report sanctioned by treasury, as recommended by Madonsela, which made largely confirmed the protector’s report.
Madonsela found Tlakula guilty of maladministration and misconduct over the acquisition, which did not follow proper procurement processes.
Even more concerning was that Madonsela said the IEC chair failed to disclose her relationship with Thaba Mufamadi, a part-owner of Abland, in a separate business venture.
The UDM’s Bantu Holomisa was the original whistle blower on the leasing deal and has been closely involved with 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 if the EFF perform less successfully than the outright victory it has been assuring its supporters.
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 here sending a statement that not all of us in this country are prepared to celebrate maladministration and even condone it.”