Independent Electoral Commission (IEC) chairperson Pansy Tlakula has filed an application in the Constitutional Court for leave to appeal the Electoral Court’s ruling that her misconduct in 2009 warrants her removal from office.
In papers filed in the Constitutional Court on Wednesday, Tlakula claims the Electoral Court erred in its finding and that its procedures were unfair.
She denied being guilty of misconduct, and argued the Electoral Commission Act did not govern the conduct of a commissioner, prior to him or her assuming office.
“I deny that I am guilty of any misconduct as an electoral commissioner that could justify my being removed from an important constitutional office,” she says in the 45-page document.
“The governing legislation … does not govern the conduct of a commissioner during any period prior to her or him assuming office. It therefore does not govern my conduct as chief electoral officer.”
Before the May 7 elections several opposition parties approached the Electoral Court seeking Tlakula’s resignation. This followed a finding by public protector Thuli Madonsela, and a subsequent forensic investigation by the national treasury, over the procurement of the IEC’s Riverside Office Park building in Centurion. Tlakula was chief electoral officer at the time.
Madonsela found Tlakula had a relationship, possibly of a romantic nature, with then chairperson of Parliament’s finance portfolio committee, Thaba Mufamadi.
Mufamadi was a shareholder in Abland, which was awarded the R320-million contract to lease the building.
The treasury probe found the procurement process was neither fair, transparent, nor cost-effective. It found Tlakula neither gave guidance nor formally informed various people about what was expected of them in the process.
On June 18, Electoral Court Judge Lotter Wepener found Tlakula’s misconduct warranted her removal from office.
On July 1, President Jacob Zuma granted Tlakula’s request for a special leave of absence until a final decision was made on her fitness to hold office.
In the Constitutional Court papers, Tlakula contends that he Electoral Court erred in its interpretation of the Electoral Commission Act and its rejection of her explanation.
“The Electoral Court erred in rejecting my explanation that I had made an honest mistake regarding the law applicable to the procurement of leases,” she said.
“The court failed even to consider my evidence … that the understanding of commissioners and executive officials at the time … was that lease agreements did not constitute goods or services and therefore the procurement thereof was not governed by the statutory procurement framework or the procurement policy of the commission.”
She said the court’s failure to consider this constituted misdirection.
No deliberate law breaking
“I deny that I deliberately broke the law when I decided on the process to be followed in procuring the commission’s new offices or that I decided on the process in order to benefit Mr Mufamadi.”
“I honestly believed that my relationship with Mr Mufamadi did not constitute a conflict of interest. However, I accept that the applicable test is an objective one.”
“Even if, objectively, my conviction was misplaced, this does not however justify a finding that I lack independence of mind or integrity sufficient to ground my removal as a commissioner.” – Sapa