The African Transformation Movement’s (ATM’s) legal challenge to the outcome of the May elections is doomed by the same flaws bedevilling that filed by Jacob Zuma’s uMkhonto weSizwe (MK) party, according to papers filed by the Electoral Commission of South Africa (IEC).
The ATM failed to comply with section 55 of the Electoral Act, which says that any party seeking to challenge the elections results may make an objection “concerning any aspect of an election that is material to the final result” of the vote.
“The section means that where a party wishes to challenge the results, it must first object,” acting IEC chief officer Walter Sheburi said in the commission’s answering affidavit.
The party must comply with the timeframe and the procedure set out in section 55(2) of the Act, and the commission must then make a decision on the objection.
By law, it is only this decision that can be challenged on review or appeal. But, Sheburi said, the ATM never filed a valid objection in the form of a sworn affidavit.
“The applicant has sought to avoid the consequences of its failure to follow the procedure for valid section 55 objections by dressing up the current challenge as a ‘review’ under section 6(1) of the Electoral Court Rules,” he wrote.
“But there is no competent review in relation to the declaration of results. The process is as spelt out above: results-objections-appeal.”
This is, verbatim, the argument the IEC raised in its answering affidavit to the MK party’s separate application to the electoral court to have the elections results set aside and the president compelled by court order to call a rerun within 90 days.
The ATM seeks the same remedy. In its founding affidavit, it alleged that it had been “the victim of miscalculations, vote rigging and voter corruption”.
ATM leader Vuyo Zungula claimed most of the ATM’s supporters could not cast their ballots and said the problems that prevented them from doing so were so fundamental that it suggested the IEC — the first respondent — was not capable of conducting free and fair elections.
As it did with the MK party, the IEC also faulted the ATM for failing to respect rule 6(1) of the Electoral Court Rules, which stipulates that any party that wants to take a decision of the IEC on review, must file written notice to the secretary within three days.
Sherubi said that even if the ATM’s application qualified as a review — which the IEC disputes — the decision it seeks to challenge, the declaration of the election results, happened on 2 June.
Therefore, the party had until 5 June to lodge its application or, failing that, show good cause for the delay.
“ATM had done neither,” Sherubi said.
For the court to condone the delay, it would have to consider the party’s prospects of success, but this inquiry led nowhere, he added, because “ATM’s case is hopeless on the merits”.
Though the party made sweeping allegations of fraud, vote rigging and bias on the part of the commission, it did not back these up with evidence.
Sherubi added that it was clear that “Zungula does not have personal knowledge of facts pertaining to the prejudicial allegations he makes” in his founding affidavit.
Without any particulars or proof in hand, the ATM was undermining the integrity of the elections without good cause and should be punished with a costs order, he continued.
Turning to the ATM’s allegations about voters being registered in incorrect voting districts, he said the party relied solely on an affidavit by one Nyaniso Jeko, who does not purport to submit facts but merely states hearsay that voters were turned away in numbers because their names did not appear on the voters’ roll, although they had registered in that particular district.
“Mr Jeko’s affidavit is not proof of any electoral irregularities, let alone the sweeping allegations Mr Zungula makes.”
Sherubi said Zungula was quite wrong to say that he did not wish to “burden the court with voluminous papers” because the claim he made was serious and should only be made on the strength of compelling evidence.
He denied Zungula’s allegation that the voters roll was inaccurate and that this had not been addressed, noting that the ATM never filed an objection to the voters’ roll while parties have a 14-day window period to do so after it was published in February.
As for the ATM leader’s claim that section 24 (A) of the Electoral Act precludes voters from voting in any district other than where they were registered, saying this section allows an exception to that rule.
It is therefore simply not true that section 24 “caused havoc”, as Zungula put it.
Sherubi said there was likewise no truth in his claim that electronic scanners malfunctioned in “most, if not all” voting districts.
The problem occurred in some voting districts and did not compromise the integrity of the results, he said, before denying Zungula’s claim that the failure of the equipment was “deliberate conduct by the commission to manipulate the election results”.
The chairperson of the federal council of the Democratic Alliance, Helen Zille, in her answering affidavit, reminded the ATM that the electoral court was not “a forum where wanton and sweeping allegations of fraud, vote-rigging and double-voting and the like can be made without proper justification”.
Yet, she said, the party provided no evidence at all and failed to demonstrate that the elections were not free and fair.
“The purpose of this litigation — like the first case brought by the MK party — appears to be to undermine the integrity of the electoral commission and to impugn the results of the 2024 elections,” she said.
The IEC said of the MK party’s application, in its answering affidavit in that case, that it was so devoid of merit that the only reasonable conclusion was that it had been brought for the purpose of public incitement.
“The only inference which can be drawn from this approach, is that these allegations were made with the aim of inflaming the passions of the public.”
The party claimed in its papers that 9.3 million votes went missing and had this not been the case it would in all likelihood have won an outright majority in the poll, as opposed to 14.5%.