ANC slams DA challenge to IEC as it demands punitive costs for ‘scurrilous, false’ claims

08 September 2021 - 22:25 By Franny Rabkin
The ANC said that if the DA lost its case, it would be seeking a punitive costs order against the opposition party. File image.
The ANC said that if the DA lost its case, it would be seeking a punitive costs order against the opposition party. File image.
Image: SUNDAY TIMES/ALAISTER RUSSELL

The DA’s case against the Electoral Commission ran counter to the express wording of the Constitutional Court in its order last week, the ANC said in court papers on Wednesday.

The ANC was responding to the DA’s court challenge over the Electoral Commission’s decision to reopen the candidate nomination process for the 2021 local government elections. The decision, announced on Monday, gives the ANC a much-needed lifeline after it failed to nominate candidates for a large number of seats before the cut-off date.

The party said that if the DA lost its case, it would be seeking a punitive costs order against the opposition party for “spurious, unfounded and vexatious” public statements it had made against the ANC - particularly that the ANC had advance warning of the Constitutional Court’s order and was working clandestinely with the electoral commission.

The commission’s decision to reopen the candidate nomination process was made after an order from the Constitutional Court on Friday, which dismissed an application to postpone the elections to February.

Instead, the court ordered the commission to consider whether a voter registration weekend was practically possible for an election that must be held between Oct. 27 and November 1. The court added that the current published election timetable would remain in place, save for any “reasonably necessary” amendments.

It was on the basis of these “reasonably necessary” amendments that the commission reopened the candidate nomination process. But the DA went to court urgently on Tuesday, saying the commission’s decision was unconstitutional, unlawful and invalid.

In its notice to court that it would oppose the DA’s case, the ANC said the court’s order did not prohibit the Electoral Commission from amending the timetable by the inclusion of a further opportunity for parties to submit fresh nomination lists.

“The argument raised by the DA thus runs counter to the express words of the court order, and the DA impermissible seeks to introduce words to the court order which this court decided not to include,” said the ANC.

The DA’s interpretation of the Constitutional Court’s order was “strained”, said the ANC.

It said that the commission was, in terms of the order, “expressly permitted” to have regard to section 11(2) of the Local Government: Municipal Electoral Act, which allows for a change to the election timetable for the purposes of a free and fair election.

It added that while the commission’s decisions may be challenged on certain “circumscribed grounds such as irrationality and unreasonableness”, the DA may not second-guess the commission. The ANC said that the DA had publicly made spurious claims that ANC had advance warning of Friday’s order from the Constitutional Court.

“The DA’s comments were false, but the DA made them knowing them to be false and without any regard to the affect they have on the public perception about the standing and reputation of this court,” said the ANC.

Similarly, the DA had made “scurrilous and baseless accusations” that the ANC was “working clandestinely with the IEC or that the IEC has intentionally sought to favour the ANC”.

The allegation was also false and was made “with reckless disregard about the damaging affect ... to the standing of the IEC as an independent institution”, said the ANC on why it would seek a punitive costs order against the DA if the DA lost its case.

Like the commission, which also filed a notice to oppose on Wednesday, the ANC agreed that the application should be heard urgently by the Constitutional Court. 

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