MK Party founder Jabulani Khumalo. (Photo by Gallo Images/Darren Stewart)
uMkhonto weSizwe (MK) party founder Jabulani Khumalo has lost his legal bid to compel the Electoral Commission of South Africa (IEC) to record him, and not Jacob Zuma, as the rightful leader of the organisation.
In a scathing ruling handed down on Wednesday, the electoral court dismissed his application with costs.
It held that because Khumalo was expelled from the party, and did not challenge his expulsion, he lacked legal standing to seek an order against the commission regarding the leadership of the party.
“As matters stand, Mr Khumalo is no longer a member of MKP,” the court said.
“He does not seek relief in relation to breach of the MKP constitution. He therefore lacks standing to seek relief against the commission in relation to the leadership of the MKP.”
Khumalo alleged that his signature was forged on a letter Zuma’s daughter, Duduzile Zuma-Sambudla, submitted to the IEC on 9 April to inform it that he had resigned as party leader and that Zuma would replace him.
On Khumalo’s version, he had only signed a letter to the commission on the same day asking that Zuma be reflected as the party’s presidential candidate and that his photograph appear on the ballot paper next to the party’s logo.
The party disputed this, saying Khumalo signed the second letter communicating his resignation in front of several witnesses.
He approached the court in May for an order setting aside the IEC’s decision to remove him and record Zuma as the president and leader of the party as ultra vires, invalid and unlawful. He also asked that the court order the commission to immediately reflect that he was still the president of the party.
The IEC told the court that it did not make any determination as to who the party leader was, because it had no say regarding an internal leadership dispute, but simply complied with a request it reasonably believed to have been authored by Khumalo.
Zuma and the MK party contended that the court lacked jurisdiction in the matter.
The court disagreed with this view, saying its jurisdiction was engaged as the IEC’s decision to update the records of the MK Party as per a written request related to an electoral matter.
But it held that Khumalo was not entitled to mount the challenge because he was no longer a member of the party.
“I am persuaded that, as an expelled member of MKP, Mr Khumalo lacks locus standi to bring this application. He is not impugning his expulsion. His expulsion therefore stands,” it said.
The court also found that his application was out of time as Rule 6 of the electoral court stipulates that an applicant wishing to challenge a decision of the commission must file an application within three days of that decision.
Khumalo failed to fully explain his delay of more than a month in doing so, the court said, therefore it could not be condoned. He also failed to take the court into his confidence as to when he learnt of the letter he claims held his forged signature.
“Mr Khumalo’s version is riddled with contradictions,” the court said. These included attempting to suspend Zuma on 5 May but claiming in his founding affidavit that the former president was never a member of the party. Khumalo also claimed that the meeting in which the letter to the IEC was doctored took place on 23 April, though it was dated 9 April.
The court faulted him for not submitting expert evidence to prove the alleged forgery, and said contrary to his, the respondent’s version of events was “not far-fetched.”
The ruling came just a day after Khumalo filed a separate application to the Western Cape high court asking for an order that he be “reinstated as an MP”.
His application is two-fold and the electoral court ruling is probably damning to both parts.
In Part A he seeks an interdict barring the MK party and Zuma from removing his name from its parliamentary list pending the finalisation of Part B of his high court application and the electoral court matter.
In Part B, he asks that the high court declare the expulsion letter served on him by the party on 26 April unlawful, raising the challenge the electoral court was necessary to bring a dispute regarding the party leadership.
Here he argues: “Mr Zuma had no authority to expel me from the MKP and therefore his decision is unlawful, invalid and unconstitutional.”
He said he thus remained among the 58 members of the MK party who were elected as members of the National Assembly.
But the secretary general of the party, Sihle Ngubane, wrote to parliament to ask that Khumalo be removed from the list of designated members of the chamber because Zuma had expelled him from the party.
Khumalo said he then received a letter from the secretary to parliament, Xolile George, last Friday informing him “that I cease being a member of parliament pursuant to the MKP’s letter”.
Khumalo said he wrote back that parliament did not have the power to make that decision, in part because he was challenging his expulsion from the party in court.
“That judgment has been reserved. It is thus impermissible and irrational for parliament to effect any removal of my name from the candidate list of MPs prior to the decision of the electoral court. If anything, such conduct amounts to constructive contempt of the electoral court.”
Khumalo said he asked parliament to retract its letter pending the electoral court ruling.
“To date, no response has been forthcoming from parliament,” he said.
“I cannot delay this application in the hope that parliament will respond at one point or the other and do so in my favour given the urgency of the matter. The swearing in of MPs is imminent.”
The MK party has informed parliament that its MPs will boycott the sitting instead of taking the oath.
It argues, in papers Ngubane filed to the constitutional court on Monday, that their absence would mean the National Assembly would not be properly constituted and would therefore not be able to elect the president or the presiding officers of the chamber.
Parliament has said the sitting will proceed as planned.
Khumalo on Monday said the MK party’s reasoning was flawed in law, and called on the its elected MPs to present themselves for swearing in.
“The purported MK communication to the effect that parliament is not constituted based on the supposed absence of 58 MK members of parliament is misguided in law and frankly embarrassing,” he said.
“Should any MK member of parliament not avail themselves for understandable fear of victimisation by Mr Zuma and his clique, [this] will not in itself be a basis for parliament not to continue with its business of swearing in members of parliament [and] continue with its scheduled business.”