IEC takes a Moseneke smackdown

Two hours into a tough session of questioning, the deputy chief justice of South Africa did something almost never seen in the Constitutional Court: he effectively told a senior advocate to shut the hell up.

“Your position is astounding,” Justice Dikgang Moseneke told the advocate for the Independent Electoral Commission, Wim Trengove, on Monday. “We don’t have to debate it now.”

Perhaps because of the mildness of Moseneke’s tone compared to his words, Trengove showed every intention of pushing his case. “May I …” he began tentatively — but Moseneke slammed the door in his face.

“Your views may be interesting but I think the matter is settled,” Moseneke said, this time with no equivocation.

Trengove visibly took a second to consider the matter, then another. Then he did the only thing he could, in the ConCourt’s rules and traditions.


“Well, then I have no further submissions to make,” he told Moseneke meekly.

Without certain pieces of legislation to hand, the lay person would have found it impossible to tell what had so riled Moseneke, cloaked as it was with references to “section 16 three” and how one Act applies to another. 

But a rustle of agitation seemed to blow down the benches of legal representatives arrayed before the court where those still to bring their arguments about the fate of the upcoming local government elections were seated. 

It was, perhaps, in part simply because of how close Trengove had come to a verbal altercation with a sitting judge of the court, and to questioning a previous judgment of that court. 

But it was also, at least in part, because the IEC’s legal gymnastics had just reached a point where it suggested that the overseers of elections wanted to maintain — or perhaps even create — loopholes that would make it impossible to prevent municipal by-elections from being stolen.

Municipal by-elections, as counsel for the Democratic Alliance would later tell the court, are uniquely susceptible to theft by bussing. In national and provincial, and even normal municipal elections, voters who vote outside their registered home areas pay the price.

The obstacles to voting more than once are nigh insurmountable, requiring the defeat of several systems built to prevent just that, including the very low-tech but very effective indelible ink on the thumb.

And so any voter bussed to a different province, or local ward, from where they live means one less vote in their home province, or ward.

In by-elections there is no such cost, advocate Anton Katz told the court on behalf of the DA.

“In a by-election, that voter who is now bussed doesn’t now lose his or her right to vote in the correct ward,” Katz said, suggesting that a voter bussed into a ward for a by-election happening between regular elections would go back to his or her home ward for the normal election.

That lack of disincentive to, say, bus a great many known supporters of your party into a by-election, is no longer a theoretical problem. At the heart of the arguments on Monday was a by-election in the Tlokwe municipality, centred on Potchefstroom, previously declared to have been not free and fair. In one subsequent investigation the IEC found about 1 600 voters who it considered registered in the wrong ward.

It was never determined who was responsible for the incorrect registrations.

Tracking down the instigator might be hard, but detecting such shenanigans should be easy, at least after the fact. By law, the IEC must make available the entire voters’ roll, or any segment of it, at any time to anyone who pays a nominal fee. A simple database search would soon show up voters who hop wards, making them liable for prosecution, and rigged elections liable to challenge.

But the voters’ roll referred to in that section of the election law, Trengove argued on Monday for the IEC, is simply a list of names and identity numbers, and specifically excludes addresses. With this argument too Moseneke had some trouble, but the exclusion of addresses was crucial, the government later insisted, to protect the privacy the Constitution guarantees.

That makes things a little more complicated, and limits the ability to act on bussing-type voter fraud to political parties alone. Anyone may object to the inclusion of an individual in the voters’ roll, and a list of identity numbers across different wards will show up ward hopping. But the onus to prove fraud is entirely on the party doing the objecting. And such an objection requires that notice of it must be served on the person who should not appear on the roll. No address means no notice can be served, so no objection can be validly lodged.

In 2003, however, Parliament added a special provision to the same law for “all registered political parties contesting the elections” to demand copies of the voters’ roll — this time with addresses specifically included.

The law threatens dire consequences for any party that uses such an address-enriched voters’ roll for anything other than “election purposes”, but on Monday the ConCourt seemed happy to accept that checking for election fraud would fall under that ambit. So, in theory, a member of the public who detects a ward-hopping ID number could alert a political party, which could get hold of an address and act.

That is, if an address is available. At the heart of the argument before the court, which may determine whether local government elections can go ahead on August 3 as scheduled, the IEC held that it could not possibly have valid addresses for all voters on the roll until 2020, though it accepts an implied duty to get that house in order.

“The DA is very concerned about the by-elections that will happen between 2016 and 2019,” Katz said later.

That would still leave a solution to the by-election loophole in sight, if too far away for the comfort of all parties.

But then Trengove yanked away even that, earning the verbal slap-down from Moseneke. The provision that parties must be given voters’ addresses should not apply to municipal elections at all, he started to argue, but only to national and provincial elections — elections where they are far less important.

“It’s totally astounding,” Moseneke told him, in a fashion that bodes ill for the IEC in the judgment the court is expected to deliver on the matter soon.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Phillip De Wet
Guest Author

Related stories

Court tests protector’s powers

In the Ramaphosa vs Mkhwebane case, the court has been asked to rein in the public protector

IEC deregisters BLF, upholds ATM’s status

The electoral commission has stripped Black First Land First of its status as a political party, but rejected an appeal against the ATM

Advocates go toe-to-toe in Zuma case

A letter purportedly proving that a high-level meeting took place in 2003 to discuss Jacob Zuma’s prosecution is the latest twist in the case

IEC rejects court threat from small parties

The IEC has written to the lawyers of the 27 smaller parties who reported election irregularities, saying their demands were unreasonable and unlawful

IEC intent on announcing final results on Saturday

The Mail & Guardian understands parties are set to receive a presentation on an audit over double votes on Saturday

Small parties send lawyer’s letter to the IECSouth Africa

The 27 parties says the reports of irregularities during voting could not be attributed to "isolated incidents"
Advertising

Vaccine trial results due in December

If successful, it will then have to be manufactured and distributed

White men still rule and earn more

Women and black people occupy only a few seats at the JSE table, the latest PwC report has found

The PPE scandal that the Treasury hasn’t touched

Many government officials have been talking tough about dealing with rampant corruption in PPE procurement but the majority won't even release names of who has benefited from the R10-billion spend

ANC still at odds over how to tackle leaders facing...

The ANC’s top six has been mandated to work closely with its integrity committee to tackle claims of corruption against senior party members
Advertising

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday