The National Assembly “cannot come into existence with less than 350 members”, Sihle Ngubane, interim secretary-general of the uMkhonto we Sizwe political party (MKP) said in court papers to the Constitutional Court.
Ngubane’s court papers were signed on Monday. The MKP has urgently turned to the Constitutional Court, asking it to interdict the first sitting of the National Assembly scheduled for Friday or, alternatively, to suspend it, pending Part B of its court case.
It also asked the court to declare the National Assembly is not properly constituted if its first sitting consists of fewer than 350 members.
In Part B, the MKP wants the court to declare that chief justice Raymond Zondo and secretary of parliament Xolile George acted unconstitutionally when they decided to proceed with Friday’s sitting despite an intended boycott by the MKP.
Part B of the MKP’s case also targets the 2024 elections. It has asked for the recent elections to be set aside and for the court to declare the Electoral Commission of South Africa (IEC) acted unconstitutionally in prematurely declaring the elections to be free and fair.
In an affidavit, Ngubane said the MKP’s application was not about reviewing or appealing the IEC’s decisions to dismiss objections raised in the aftermath of the elections.
“The group of parties aggrieved by those decisions have reportedly taken or intend to take whatever legal steps are open to them.”.
The MKP also intended to “present whatever new evidence it has gathered in that respect to the IEC in the form of objections”, Ngubane said.
Instead, the application was about “separate issues” of declaring certain conduct of the IEC to be unconstitutional and setting it aside, he said.
Ngubane said the 2024 elections were “anything but free and fair”. A large number of objections made to the IEC had not been satisfactorily dealt with, and “the indisputable fact” was that some new objections, which remain to be properly considered by the IEC, were “likely to have a material effect on the outcomes of the elections”. There was also “inherent systems weakness”.
Ngubane did not provide evidence for the assertions in his affidavit. He said the MKP was in possession of “a large and growing body of evidence to support them”, but “no useful purpose will be served including such information herein at this stage”.
However, the decision to declare the elections was unconstitutional, unlawful, unreasonable and irrational because the day before more than 25 political parties signed a collective objection with “hundreds of examples of irregularities”. That day the IEC granted a request for more time to make objections. Despite “a public appeal” to the IEC not to proceed with the envisaged declaration, the IEC “within minutes” announced the declaration ceremony would go ahead on Sunday.
“In the intervening period the IEC had dismissed all 579 objections as individually invalid or immaterial,” said Ngubane.
“It is the consequential steps, all tainted by the unlawfulness of the declaration of the freeness and fairness of the elections and/or the declarations of the results, which must also be set aside,” he said.
The IEC had another three days to declare the results. There was no rational basis to “rush” when the “circumstances had drastically changed”, Ngubane said. He said the dismissals of the objections were also illegal as “they were clearly predetermined fait accompli and not fairly decided with an open and impartial mind”.
To illustrate this, Ngubane said, in at least one instance a recount was found to be necessary as the discrepancies were found to involve more than 1,000 votes.
Ngubane did not detail the result of that recount.
However, he said: “Potentially therefore we may be talking about a cumulative total of more than 579,000 votes which, in anybody’s language, would have a material impact on the outcome of elections.”
Ngubane said the MKP had notified the National Assembly’s secretary that it would be boycotting the first sitting, but George had disputed the party’s interpretation of section 46 of the constitution that this would mean it would not be properly constituted and decided to press ahead.
On the face of it, section 46(1) of the constitution is only capable of one interpretation that says the National Assembly cannot come into existence with less than 350 members
— MKP interim secretary-general Sihle Ngubane
“There is therefore in existence a dispute regarding the interpretation of the constitution,” said Ngubane.
However, “properly interpreted”, the constitution went against the idea that the first sitting could take place without the “constitutionally prescribed minimum number of members”.
“On the face of it, section 46(1) of the constitution is only capable of one interpretation that says the National Assembly cannot come into existence with less than 350 members,” he said.
He said the constitution of the assembly should not be confused with the quorum, “which can only gain relevance after the National Assembly exists or has been properly formed, constituted or composed”.
Until members have been sworn in, designated MPs were only “members-elect”, in the same way that after elections the president was only “president-elect” until he was sworn in, said Ngubane. This was supported by the rules of the National Assembly in terms of which the president-elect only assumes office as president once sworn in, said Ngubane.
The MKP has asked for Part A to be heard on an urgent basis and Part B on a “semi-urgent basis”.
It has asked the parties it has cited to respond by the end of Tuesday. Cited parties are the chief justice, the secretary of parliament, the IEC, the president, the political parties going to parliament and those who contested the elections.
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