The MK party on Tuesday filed an urgent application to the constitutional court to interdict the National Assembly from sitting to elect a new president and demand a rerun of the 29 May elections. (Delwyn Verasamy/M&G)
The uMkhonto weSizwe (MK) party on Tuesday filed an urgent application to the constitutional court to interdict the National Assembly from sitting to elect a new president and demand a rerun of the 29 May elections.
This comes after the MK party said on Monday its 58 elected members of the National Assembly would boycott Friday’s sitting of the chamber because it did not accept the election results.
In the founding affidavit, the party asks that the court interdict Chief Justice Raymond Zondo and the secretary of parliament, Xolile George, from convening the inaugural sitting of the newly elected National Assembly.
Parliament has indicated that it will proceed with Friday’s session in the absence of the MK party’s members, as the Constitution requires a minimum of a third of members to be present to elect the president.
The MK party’s application is twofold.
In part B, it seeks an order that “the conduct and/or decision of the chief justice and/or the secretary of parliament to proceed with convening and/or conducting the first sitting of the National Assembly is inconsistent with the Constitution”.
It further asks that the court declare that the National Assembly would not be properly constituted unless “the first sitting consists of no less than 350 members and no more than 400 as prescribed in section 46 of the Constitution”.
Finally, it asks that the court declare Zondo’s decision to convene the sitting unconstitutional, along with the Electoral Commission of South Africa’s (IEC) announcement of the election results. The chief justice is listed as the first respondent and the commission as the second.
It wants the court to set aside the election results and order President Cyril Ramaphosa, the fourth respondent, to call fresh elections within 90 days.
The founding affidavit was filed by Sihle Ngubane, the secretary general of the MK party, who argues that the elections “were anything but free and fair”.
He said the IEC had not dealt adequately with the objections it had received and declared resolved and that those still under consideration were likely to have a material effect on the outcome of the elections.
Ngubane went on to allude to evidence of irregularities in his party’s possession but said no purpose would be served by including it in its founding papers.
He charged that the IEC dismissed 579 objections from political parties as invalid or immaterial in the space of a day “to rush” to announce the election results on 2 June, four days after the vote.
Ngubane said the dismissal of the objections was clearly a “predetermined fait accompli” and was not done in an impartial manner.
He charged that proceeding with the announcement, despite the expressed unhappiness of political parties, was unlawful and tainted the allocation of seats in the National Assembly and the decision to convene its first sitting.
“Conversely, the elections and/or the first sitting of the National Assembly cannot lawfully survive the illegality of these first preceding steps.”
On Monday, lawyers said the party’s bid to interdict the assembly from sitting was doomed because it relied on a misreading of the law.
First, the party’s members became MPs on election, though they can only assume their duties once they have been sworn in, hence the argument that the chamber is not properly constituted does not hold water.
Second, the Constitution is clear on the numbers present required to elect the president, the lawyers said.
Section 53(1) says that a majority of members must be present before the assembly can vote on a bill or an amendment to a bill.
Section 53(1)(b) then states: “At least one-third of the members must be present before a vote may be taken on any other question before the assembly.”
This applies to the election of the president — plus the two presiding officers. In fact, the MK party’s absence could make it easier for the ANC to have Ramaphosa elected for another term, despite the loss of its outright majority in last month’s poll.