Activist goes to court to postpone elections and suspend IEC

South Africa's fifth national election on May 7 could be postponed and all commissioners of the Independent Electoral Commission suspended. (Gallo)

South Africa's fifth national election on May 7 could be postponed and all commissioners of the Independent Electoral Commission suspended. (Gallo)

South Africa’s fifth national election on May 7 could be postponed and all commissioners of the Independent Electoral Commission (IEC) suspended if André Lötter has his way.

The former ward councillor won the first order of a postponement of an election in democratic South Africa in April 2013. He managed to get by-elections postponed in ward 22 in Abaqulusi, northern KwaZulu-Natal, where he ran as an independent councillor after quitting the ANC, which precipitated the by-election. Now he’s hoping he’ll have that same success on a much larger scale.

The politician, who has since joined Zanele kaMagwaza-Msibi’s National Freedom Party, has taken up the same issue with the national elections that he successfully challenged at the ward level: the manipulation of results by political parties by techniques such as busing in supporters from other areas.

Lötter claims in his urgent court application, which was filed on Wednesday at the Electoral Court, that the IEC commissioners have consistently failed to deal with the issue, calling into question their ability to run free and fair elections for the country.

“Over the past 12 months, the electoral commission has on about 17 occasions, shown itself incompetent to organise free, fair and regular elections on the municipal level owing to its inability to prevent and repress large-scale unlawful voter registration,” he said in his affidavit accompanying his application.

Lötter, who describes himself as a “pro-democracy activist” claimed to be bringing the application “in the public interest on behalf of all South Africans”.

Swamped the poll
Lötter made headlines last year when he successfully interdicted by-elections in his ward at the Electoral Court and Constitutional Court.
The IEC had to remove 1 500 names from a voters roll in the ward that swelled to 6 100 from 3 700 in the 2011 municipal elections. Given that average voter turnout in KwaZulu-Natal wards was 2 317 in that election, 1 500 outsiders bused into a ward they were not entitled to vote in would have swamped the poll, Daily News noted at the time

“Busing voters to load elections is an egregious violation of our democracy. It is theft, arguably treasonous, with frightening consequences for South Africa’s democracy,” the paper wrote in an editorial. “If it is not forcefully halted, it will start fraying an electoral process that has to now won global admiration.”

Opposition politicians have previously complained about the issue to the Mail & Guardian, saying it distorted voting results and robbed them of wins in certain areas.

Lötter has taken particular issue with the fact that the IEC has not taken steps to prevent fraudulent voters being added to the voting roll in the first place. “What is needed is not to remove fraudulent registrants afterwards, but before they are admitted to the roll,” he noted in his application, while referencing one particular case.

He believes the commission should verify the addresses of voters on the voter roll, which would mitigate against swaying a result by busing in supporters not from a particular area.

“The commission denies responsibility for the veracity of the national common voters’ roll,” said Lötter in his application. He pointed out that the IEC’s chief electoral officers had stated in another court matter that “there is no provision that requires the electoral commission to verify voters’ addresses”.

For Lötter the argument was problematic, as the IEC should not “hide behind any inefficiencies in national legislation in its duty to ensure free and fair elections”.

In his own previous court case with the IEC, Lötter said the commission was instructed on May 2013 by the court to take steps “to avoid a recurrence of large-scale unlawful registrations”.

He claims in his papers that because the commission failed to implement the instructions, many more by-elections have been postponed, with most in protracted court processes.

“Such a dereliction of duty amounts to misconduct and incompetence by the electoral commissioners,” said Lötter.

His second recommendation is that the election scheduled for May 7 be postponed for 90 days to allow new commissioners to take office. Lötter argues that the delay in elections was not an issue, as the freeness and fairness of the process was paramount.

The urgent application was lodged with the court on Wednesday, and delivered to the IEC at their offices in Riverside Park, Centurion. However, most of the commission was at the launch of its national results centre at the Tshwane events centre at the Pretoria show grounds at the time and did not receive the application until Wednesday evening. IEC deputy chair Terry Tselane told the M&G the IEC would formulate a response by Thursday after looking through the papers.  

Tselane and the rest of the five commissioners at the IEC, who are all named on the application, will have to decide by 10am on Thursday whether they will oppose the application, which they will most likely do. The body will then have to serve affidavits setting the grounds for opposition by 4pm on Friday May 2, and Lötter intends to make his application to the Electoral Court on May 6, the day before elections.

Tlakula’s removal
In a separate case, five opposition parties approached the Electoral Court asking judges to recommend the body’s chair Pansy Tlakula be removed from her post following two damning reports, one by the public protector and one by treasury, regarding her involvement in a botched leasing deal for the IEC’s headquarters.

Tlakula’s legal teams will be working through the night to submit her argument to stay put, and will argue the case on Friday.

The reports on the IEC’s procurement of its R320-million Centurion offices from property developer Abland have haunted the IEC in the run-up to the elections, and created much tension within the body, with workers at the IEC threatening to go on strike if Tlakula did not resign, and most of the commissioners siding against Tlakula, according to several sources.

Further legal woes facing the body ahead of the elections include a company that should have been shortlisted in providing new headquarters for the election planning body claiming R7.5-million from the IEC.

Khwela City Property Services, a company within the group, was incorrectly excluded from the IEC’s disastrous leasing procurement process to secure new premises in 2009, the treasury report found.

The legal wrangles facing the commission are creating much distraction at a crucial time, staff members at the IEC have told the M&G. However the body is technically ready for the elections, according to sources from various political parties in the political liaison committee and the IEC itself.

Verashni Pillay

Verashni Pillay

Verashni Pillay is the former editor-in-chief of the Mail & Guardian, and inaugural editor-in chief of Huffington Post South Africa. She has worked at various periods as senior reporter covering politics and general news, specialises in mediamanagement and relishes the task of putting together the right team to create compelling and principled journalism across multiple platforms.  Read more from Verashni Pillay

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