MK Party leader Jacob Zuma. (Delwyn Verasamy/M&G)
The uMkhonto weSizwe (MK) party’s legal challenge to the outcome of the May elections was so devoid of merit that it was patently brought for the purpose of public incitement, the Electoral Commission of South Africa (IEC) has countered in its court papers.
It said there could be no other conclusion given that the party had again failed to submit evidence to support its claim that it was denied millions of votes, despite knowing the lack of proof would be fatal to its case.
But before one reached the merits, IEC chief electoral Sy Mamabolo said in an answering affidavit filed late on Tuesday that the MK party failed at the first technical hurdle because it did not comply with the objection process as set out in law.
Section 55 (1) of the Electoral Act says that “any interested party may make an objection concerning any aspect of an election that is material to the final result of the election”.
Mamabolo stressed that nobody who wished to challenge the election results can ignore this requirement. Once an objection has been filed, the commission must convey its decision to the party, which could challenge or appeal that decision.
The MK party filed a letter of objection on 31 May, four days after the vote. In its founding affidavit to the electoral court, it claimed that it was wrongly dismissed and that the election was blatantly rigged, but for which it would have won an outright majority, instead of 14.5% of the vote.
Mamabolo said the party’s objection was not filed in line with the requirements of the Act. Notably, the details of its complaint and the reason for the objection was not set out in an affidavit or sworn statement.
“There is no other procedure for dealing with the results of an election. The applicant has not followed the section 55 procedure.”
Mamabolo said the MK party appeared to be trying to remedy this defect by dressing up its challenge as a review application.
“But there is no competent review in relation to the declaration of results,” he continued, because no appeal against the results per se is possible unless the section 55 process was followed.
“The process is as spelt out above: results-objections-appeal. It follows that this application is not competent in law. For this reason it must be dismissed, with costs.”
Beyond this, he said, the MK party also failed to comply with rule 5 of the electoral court, which stipulates that any application for leave to appeal against a decision of the commission must be lodged within three days of said decision.
“The applicant seeks to set aside the commission’s declaration of the NPE [national and provincial elections] 2024 as free and fair. Even if the declaration of the election results is construed as a reviewable decision of the commission (which is a matter for legal argument and not admitted) that decision was made on 2 June 2024.”
Therefore the party had to lodge its application by no later than 5 June, or show good cause for the delay.
“The applicant has done neither,” Mamabolo argued.
He added that when a court considered condoning such a lapse, one of the factors it took into consideration was the prospects of success of the application. But the MK party did not deserve leeway because its case was “hopeless on the merits”.
It had, Mamabolo said, for the third time failed to provide any evidence of its claim that the election was manipulated to deny it millions of votes. It did not do so in its objection to the commission, or in its unsuccessful approach to the constitutional court on the subject.
In that application, the party’s secretary general, Sihle Ngubane, alluded to evidence of irregularities in his party’s possession but said no purpose would be served by including it in its founding papers.
Two weeks ago the apex court said the application failed on its merits as the party had misconstrued the constitutional provisions it sought to rely on.
“In addition the applicant has also not adduced facts to establish a prima facie case in respect of the relief it will seek in the main application.”
Mamabolo said neither did it finally bring evidence in its present application.
Instead its application was founded on “a litany of wholly unsupported assertions of ‘evidence’ of election fraud, and manipulation of the electoral process and figures that are misrepresented as the commission’s data”.
In the founding affidavit, MK party organiser Nathi Nhleko said an analysis of the IEC’s published records revealed discrepancies between the number of ballots cast and the number of votes counted in each province.
There were a total of more than nine million votes that could not be reconciled with actual voting figures, he claimed, adding that this could only point to election rigging. Nhleko said that evidence of serious irregularities was dealt with in finer detail in a supporting affidavit deposed to by the party’s experts.
No such affidavit was filed, the IEC said, and furthermore, the party failed to name its experts or describe the nature of their expertise.
“The applicant’s reliance on alleged ‘expert evidence’ is therefore a mirage,” it said.
Nhkelo instead submitted what he termed an “expert analysis” of the IEC’s published data to back up his claim that 9.3 million votes are unaccounted for in the declared election result.
But the data does not align with the actual data of the commission, Mamabolo said. Both the founding affidavit and the annexure with purported analysis misrepresent the figures it published and its “formula” for the derivation of unaccounted votes was devoid of logic.
On the proper figures, all votes were accounted for and all valid votes counted.
“The figures the applicant relies on in his founding affidavit and in the accompanying annexures MK2 to MK11 are incorrect.”
Moreover, Nhkelo did not say who drafted the party’s data analysis.
“The authors of the document are not disclosed. It is therefore not known what, if any, expertise they possess.”
Nhleko submitted that he relied on information from the party’s agents who monitored the elections, but failed to provide the court with confirmatory affidavits from agents. He further referred to a technical report on the IEC election system, but again failed to attach it to his founding affidavit, Mamabolo said.
It appears to be a reference to a document included in the party’s application to the constitutional court. The authors claimed that there was prima facie evidence of vote rigging, that an inspection was done of the commission’s computer system and that “there was no movement on data during the capturing”.
The report is clearly not a technical one and the claims are false, Mamabolo said, adding: “The document is so poorly written as to obscure its meaning.”
As for a technical problem that affected the IEC’s leaderboard and online result dashboard for about two hours on 31 May, he said this had no bearing on the integrity of the capturing process.
The reason is that the results system compromised a so-called functional system which is used for vote capturing and auditing at the national data system, and a separate reporting system. The glitch affected only the second stream.
Mamaloko said Nhleko in alleging manipulation of the result processing system also appeared misinformed as to the safeguards built into the process, which included sorting ballots in the presence of agents and allowing agents to photograph the detailed forms counting officers must complete to reflect the result at each voting district.
It was, he concluded, deeply concerning that the MK party had made “the most serious and prejudicial allegations” that struck not only at the integrity of the IEC but the country’s democratic order without producing credible evidence.
“When these egregious allegations were made, the applicant must have been aware of the absence of evidence to support them, but elected to make them nevertheless,” he said.
“The only inference which can be drawn from this approach, is that these allegations were made with the aim of inflaming the passions of the public.”
He said this was an abusive attempt to manipulate the legal system which the court must punish.
The party’s 58 MPs were belatedly sworn in on Tuesday.
The MK parliamentary leader, former judge John Hlophe, said the fact that they were taking up their seats should not be taken as recognition of the election result, which the party would continue to reject, despite describing itself as the new official opposition.