The uMkhonto weSizwe (MK) party has asked the electoral court to hear oral evidence in its application to have the results of last year’s national and provincial elections set aside.
(Darren Stewart/Gallo Images)
The Electoral Court on Friday handed down a punitive costs order against Jacob Zuma’s uMkhonto weSizwe (MK) party for instituting and then abandoning its initial challenge to the outcome of the May national elections.
The Electoral Commission of South Africa (IEC) had sought, besides the costs order, a ruling barring the party from launching similar proceedings in future without first seeking leave from the court.
Describing this remedy as self-evidently drastic, the court declined to grant it. But acting Judge Ester Steyn held that the manner in which the MK party had set about seeking to overturn the poll result was well outside the bounds of normal litigation practice.
The party filed a new challenge to the poll result to the electoral court earlier this month, continuing a cycle of litigation that began a fortnight after it emerged as the third biggest party in the country in the May polls.
It filed an urgent application to the constitutional court in June, asking that it set aside the election results and order President Cyril Ramaphosa, the fourth respondent, to call fresh elections within 90 days. The party wanted the court to interdict the National Assembly from sitting on Friday to swear in MPs and elect a new president.
In its founding affidavit, the party’s secretary general, Sihle Ngubane, argued that the elections “were anything but free and fair”.
He alluded to evidence of irregularities in his party’s possession but said no purpose would be served by including it in its founding papers.
The court dismissed the application, saying it must fail on its merits, and faulted the party for not adducing facts to establish a prima facie case.
The MK party then turned to the electoral court, again arguing that the election was rigged. It claimed this cost it more than nine million votes and an outright victory, instead of 14% of the vote. Again, it did not submit evidence.
Instead, in early July it filed notice to withdraw the challenge, without seeking leave from the respondents or the court.
Its council, in correspondence with the IEC’s lawyers, cast the withdrawal as “a pause in the litigation to resolve procedural issues”. He said the party continued to find further evidence that the poll was not free and fair, and indicated that it would in due course supplement its founding affidavit.
Steyn noted that after the party was pointed to the fact that it would need leave to do so, it “abandoned the intended course”. It did so without tendering costs to the first respondents, the IEC and the chief electoral officer.
The IEC demanded a hearing date, saying it was imperative that the application be ventilated to allow the court to make a finding given the MK party’s attack on the credibility of the poll, and the liability costs.
It argued that the manner in which the party had conducted itself was indicative of “an abusive and dilatory litigation strategy”.
The court was not persuaded that the party’s conduct qualified as an abuse of process “yet” but said it had made itself guilty of a number of irregularities.
“What emerges from the factual matrix is a pattern of conduct by the MK party that deviates from the standard litigation practice.”
One would have thought that its earlier failed approach to the apex court would have seen it proceed with more caution before the electoral court and file the requisite expert reports and confirmatory affidavits to set out its case.
The party failed to do so. After it withdrew its application, the court called a case management hearing and gave the party an opportunity to file heads of argument for the case to be settled on papers. It chose not to do so.
“This constellation of factors constitute a significant departure from normative litigation conduct and do warrant consideration of a punitive costs order.”