MK Party members brandish a banner with the face of former ANC and state president, Jacob Zuma. (Photo by Darren Stewart/Gallo Images via Getty Images)
Senior counsel Sesi Baloyi told the electoral court on Tuesday that the ANC was not gunning for the uMkhonto weSizwe (MK) party as it sought to have its registration declared invalid, but that it may become “collateral damage” if the governing party is successful in its application.
The MK party had only been cited because of its “interest in the matter”, said Baloyi, who is acting for the ANC.
“They are not the target, we are not criticising them for what they have done. We are criticising the deputy chief electoral officer, that’s where our criticism lies. And the criticism is, he did not exercise his powers lawfully.”
The ANC wants the specialised court to review the registration of the MK party, which it contends was done without following proper procedure and is thus invalid. As Baloyi told the court, the matter concerns the “exercise of the power to approve the registration of the [MK party] after the deputy chief electoral officer had made the decision to reject the application”.
Should the court find in favour of the governing party, the Jacob Zuma-endorsed MK party will effectively be barred from running in the general elections on 29 May.
The MK party’s application for registration was rejected because signatures on the application appeared to be fraudulent. The Electoral Commission of South Africa (IEC) thereafter issued an invitation to the party to submit another application.
The MK Party then submitted a supplementary application in which, according to Baloyi, a new list of signatures was added. “Then on 7 September, the [deputy chief electoral officer] makes a new decision … to register [the party] which was made on the basis of a supplemented application.”
The question before the court, she said, was if the decision of the deputy chief electoral officer to “reopen the file” on the rejected and thus “defunct” MKP application was permissible.
“It is not permissible because the decision to reject the application was a final one,” Baloyi added.
Prior to Baloyi’s arguments, advocate Tshidiso Ramogale, also for the ANC, had argued on the points of condonation, jurisdiction and urgency.
“You simply can’t turn us away now because 29 May is around the corner, and there is the need for legal certainty about whether MK is going to be on the ballot legally or not,” he told the court.
Should the court “turn away” the ANC, he said, “there is a very serious and material threat to whether the elections that we are about to have on 29 May are, in fact, free or fair”.
“This is because there are questions regarding the legality of a party [on the] ballot and whether or not the party should, in fact, be there in the first place. And so, we say that is not an issue that the court should turn away from. It is the very thing that this court was established to decide — to protect free and fair elections, to protect the right to franchise, but importantly, to uphold the rule of law,” Ramogale said.
Perhaps most importantly, he told the court, the IEC had told the court in its answering affidavit that the way it had treated the MK party was how it had always done things — “that they consider supplemented applications whether they meet the requirements or not”.
He said there was “every need” for the court to decide on the merits of whether the way in which the commission had exercised its power “is the way it should always exercise its power or not, when considering supplemented applications”.
“There is a need to provide the commission guidance on that aspect, particularly because I think they attach three or four examples [in their documents] when they have done it with other parties,” Ramogale said.
“If we are correct in that the way in which they have been exercising that particular power is unlawful, there is a need to stop that now, because it’s not just about this election, it is about every by-election, every local government election, every municipal election, every provincial election, every national election thereafter.”
Acting for the MKP, Dali Mpofu, SC, said if the ANC’s numerous delays in appealing the MKP registration were taken into account, and the long delay in making an urgent application to the electoral court, “they had reconciled themselves with the idea of MKP being registered in South Africa”.
“So what changed?” he asked. “The only thing that made them wake up from their slumber was the announcement on 16 December that Jacob Zuma would vote and campaign for MK.”
He said all of the ANC’s delays could be characterised as an “abuse of the court process”.
“When the ANC, on the 24th November, was visited with this dismissal, it had an option at that point to come to this court. It had 30 days. Once it failed to do so, it had made a [decision] not to challenge the decision of the commission by coming here. The implications of that are far reaching, because it meant the ANC accepted the dismissal of its case.”
Their own evidence pointed to the ANC accepting the decision, said Mpofu.
What was “inexplicable”, he said, was the ANC’s “refusal to come clean with the court and explain why they waited for so many months”.
Mpofu said the ANC’s reaction was “merely a desperate political reaction to an announcement made by the former president on 16 December that he will neither campaign nor vote for the ANC but do so for the MK party. It is unconscionable to abuse our courts in such a manner”.
The ANC’s excuses for their late appeal, Mpofu laughed, were “stories about the festive season”.
“Please! Which festive season starts on 7 September and rolls on for months and months and months and then you just wake up on 7 January?” he asked.
Acting for the Electoral Commission of South Africa and the chief electoral officer, and making submissions before Mpofu, advocate Terry Motau SC, told the court that the ANC’s urgency in the case was “self-created”, and that it had not made a cogent case for condonation of the late filing of its application.
In the IEC heads of argument, it is stated: “The time within which the review must be brought is stipulated in Rule 6 of the Rules of the court. Rule 6 requires this review application to be submitted to the Secretary of the court within three days after the impugned decision was made. Applied to the facts of this case, it means that the applicant should have brought the review application by no later than 12 September 2023. The application is, therefore, 119 calendar days late (17 weeks late), which is excessive.”
The ANC’s explanation for the delay lacked substance, said Motau. It failed to provide any explanation, let alone a reasonable explanation, as to “why it only instructed lawyers to assist it with preparing this application on 26 December 2023”.
Judgment was reserved.
The ANC and MKP will be appearing in the Durban High Court next week regarding the trademark infringement of the uMkhonto weSizwe logo, which the ANC contends the MK party has usurped.