Mail & Guardian

Azapo, ACDP battle in court over Assembly seat

11 May 2004 17:15 | Staff Reporter

The Electoral Court presided over a tug of war on Tuesday over 2 666 votes that could give the African Christian Democratic Party a seventh National Assembly seat but leave the Azanian People's Organisation with one.

The ACDP claims the votes, cast in Khayelitsha in the Western Cape on April 14, were for the African National Congress and were wrongly credited to Azapo.

Azapo's inflated votes gave rise to incorrect calculations that resulted in it being awarded the 400th National Assembly seat that should have been the ACDP's, the court was told.

"There is no way whatsoever on the probabilities that ... a vote of 2,666 could have been cast for Azapo in that voting district," Marius Helberg, SC, argued for the ACDP.

He contended a capturing error must have been made. It is improbable that the ACDP would get 2 666 votes on the national ballot in that district and the ANC only two.

One should take into account that the ANC received 2 666 votes on the provincial ballot, and was the party of choice in other voting districts in the area.

The Independent Electoral Commission (IEC) has acknowledged in court papers that a mistake was made. Azapo's failure to accept this is "unfortunate", Helberg said.

Chris Mokoditoa, for Azapo, elicited giggles from the public gallery when he argued that the votes in question had in fact been cast for his client.

"There was no mistake -- the results were correct," he told the court.

The results form issued at the voting station was endorsed by five political party agents -- including one from the ANC. The figures were also sanctioned by accountants and the presiding electoral officer.

It is likely, Mokoditoa contended, that residents of the area brought out a sympathy vote for Azapo given the recent killing of a popular party leader.

"People might have thought: 'Let's give Azapo the national vote and the ANC, since it is going to win nationally anyway, the local vote'," he argued.

It is futile to compare the results at this voting district with others nearby, Mokoditoa added.

"My client may have performed badly in other areas, but in this area if performed so well that it beat even the ANC."

In any event, he said, there is no proof to the contrary and the ACDP's case is based merely on probabilities.

The ACDP also sought condonation for the late filing of its objection. Legally, it had until 9pm on April 16 (two days after the election) to object, but only discovered the alleged anomaly much later.

Mokoditoa, however, believed the party should not be excused -- which would mean the application could not be considered at all.

The ACDP had ample time to detect and report irregularities, he said. The results have already been announced, and cannot be changed.

A ruling to the contrary would create an open-ended situation where election results could be challenged endlessly, and the work of Parliament disrupted, Mokoditoa said.

But Helberg argued that if condonation is not granted, the election can not be said to have been fair. It would mean the ACDP had no recourse with legitimate complaints.

Judgement was reserved.

Outside the Pretoria High Court, ACDP leader Kenneth Meshoe said a favourable ruling would mean extra funding and representation on parliamentary committees for his party -- as well as additional speaking time.

Deputy chief electoral officer Norman du Plessis said the IEC deplores the mistake, and has apologised to both parties.

If it wins, the ACDP would have as many National Assembly seats as the New National Party and Independent Democrats. -- Sapa

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