Former South African and ANC president, Jacob Zuma. (MKP/X)
The Electoral Court has dismissed an application by the ANC to have the breakaway uMkhonto we Sizwe Party removed from the ballot for the 29 May national and provincial elections.
The decision means that the party led by former ANC president Jacob Zuma will be allowed to contest the elections, but will face a second challenge to its right to use the name MK in the Pietermaritzburg High Court on Wednesday.
The court said that the ANC had failed to take advantage of two opportunities provided by the Electoral Act to object to the registration of the new party last year and had “only itself to blame” for failing to do so.
In a judgment handed down in the South Gauteng High Court on Tuesday morning, the court rejected an application for late submission of its objections by the ANC and further ruled that the ANC did not have the standing to bring the application.
It further ruled that the court lacked the jurisdiction to hear the application by the ANC, and that the decisions by the deputy chief electoral officer Mawethu Mosery to register MK on the basis of a supplemented registration was not unlawful.
The decision is a massive boost for the new party and its supporters, some of whom gathered at the court to wait for the ruling to be handed down.
Speaking to supporters outside the court, Jabulani Khumalo, the founder of the party, said that MK would be on the ballot despite the ANC’s attempts to remove them.
“This means that we will be voting for Nxamalala (Zuma’s clan name) on 29 May. On 1 June Nxamalala will be constituting his cabinet,” Khumalo said.
Delivering the judgment, justice Lebogang Modiba said the ANC had argued it should be allowed condonation due to its late discovery that the MK’s second application for registration had been successful.
The party had blamed its late submission on the fact that its offices – and those of its legal representatives – had been closed for the festive season.
However, the ANC had earlier twice failed to object to the registration of MK when it could have done, and its delays in taking the decision to approach the court were not justified.
The ANC also “failed to fully explain why it took more than one month to discuss and decide on a course of action,” and why it had waited until Boxing Day last year to brief its counsel on the matter.
Modiba said the ANC could have started the legal process at a point when the festive season was “more than three months away” but failed to do so.
The ANC had also failed to raise the objection at the time when the MK application for registration was made, which meant that it lost its legal standing to challenge the party’s presence on the ballot.
“In both instances it failed to do so. Therefore it only has itself to blame,” Modiba said. “Having failed to object to the application for registration, by operation of law, the ANC became non suited to impugn the deputy chief electoral officer’s decision.”
There was also “no merit” in the ANC’s argument that registering MK undermined its rights as the parity had been lawfully registered.
The court found that Mosery had acted lawfully by accepting a supplementary application for registration by MK after its initial application was rejected due to the alleged forging of signatures of members endorings the application.
There was no regulation that stipulated that an application had to be made afresh, or that laid down the manner in which this process should be conducted, so there was “no need to commence the whole process afresh”.
There were “other parties” which had submitted supplementary applications after initial rejection and which were approved, so the contextual interpretation of the law “favours MK”.
The court found that the Electoral Act should be interpreted in a way which facilitates the formation and the registration of a party, rather than hamstringing it and that there was “nothing unlawful” about the registration of the party on 7 September last year.
No order was made regarding costs.
The fight between MK and the ANC now moves to the KwaZulu-Natal high court, where the governing party has made an application to stop Zuma’s party from making use of its intellectual property.
The matter will be argued on Wednesday.