In KwaZulu-Natal, the votes of next week's by-election will be a test of whether the uMkhonto weSizwe (MK) party is able to consolidate — at local government level — the electoral gains made on 29 May, when it took 45% of the vote in the province. (Leon Sadiki/Bloomberg via Getty Images)
The electoral court has set down the uMkhonto weSizwe (MK) party’s legal challenge to the outcome of the May elections for 29 July, despite the party’s withdrawal of its application.
In a notice issued on Monday, the court said the matter had been set down for virtual hearing “pursuant to the provisions on the rules of the court”.
It asked parties to notify the court if the application would not proceed.
The MK party on 3 July filed notice to withdraw the challenge it filed last month.
But in a letter to the Electoral Commission of South Africa’s (IEC’s) attorneys, advocate Barnabas Xulu stressed that this was not an admission that his client’s case was weak, but a pause in the litigation to resolve procedural issues. He said the party continued to find further evidence that the poll was not free and fair.
“The MK party has evidence of election irregularities,” Xulu wrote.
“We have, however, advised our client that there are procedural and technical issues that need to be complied with to present such evidence before the application can be adjudicated.”
He said the party sought directions of the court on a number of issues but never received such.
“In the absence of any directives regulating the further conduct of the matter, which we accept is entirely at the discretion of the court, the MK party has decided that the matter should be withdrawn.”
Xulu added: “The withdrawal is in no way an admission that our client does not have a case for the order it seeks. The contrary is true.”
But IEC has pushed for a hearing date, saying it was imperative that the application be ventilated to allow the court to make a finding given the MK party’s attack on the credibility of the poll, and the liability costs.
“It is an absolute imperative that the matter is ventilated publicly and a final decision be made by the electoral court, at the very least to confirm whether the allegations against the electoral commission were made vexatiously and without just cause,” Moeti Kanyane Attorneys wrote two days after the MK party filed its notice.
It said the withdrawal was irregular, because the party did not seek leave from the court. Furthermore, it had not tendered costs for time wasted, as it was obliged to do. The IEC is therefore asking for costs on a punitive scale.
The MK party, now the official opposition, alleged in its founding affidavit that election rigging cost the party more than nine million votes and an outright victory. It asked that the result be set aside and a rerun of the poll ordered.
“Had the elections been conducted in a free and fair manner, the applicant would in all likelihood have won the national and provincial elections, with the consequence that it would have earned the right and obligation to form a national government,” MK party national organiser Nathi Nhleko claimed.
But the IEC countered that its application was so devoid of merit that it was patently brought for the purpose of public incitement.
Chief electoral officer Sy Mamabolo said the MK party had 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.
Its application was grounded in “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”.
Nhleko said that evidence of serious irregularities was dealt with in finer detail in a supporting affidavit deposed to by the party’s experts. But the party did not file such an affidavit, and further failed to name its experts or describe the nature of their expertise.
“The applicant’s reliance on alleged ‘expert evidence’ is therefore a mirage,” Mamabolo countered.
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 supposed analysis misrepresent the figures it published and its “formula” for the derivation of unaccounted votes was devoid of logic.
The MK party’s attempt to withdraw the application should be read against this attack on its evidence or lack thereof.
Xulu, in his letter to the IEC’S counsel, said Mambolo’s averments raised questions which the commission must answer “for the sake of its own credibility”.