Instead of filing the expected last round of court papers, as directed by the Electoral Court, the MK Party has asked for new directions from the court — including “on how technical reports must be received”.
The request, made in a letter from the MK Party on Thursday, will delay resolution of the court case — an “urgent” bid to set aside the recent national and provincial elections — which the party says were not free and fair because they were tainted by vote-rigging.
Thursday was the deadline set by the court for the MK Party to file its replying affidavit. The IEC filed its answering affidavit — a response to the application by the MK Party — on Tuesday. But instead of a replying affidavit, the MK Party’s attorney Barnabas Xulu sent a letter to the court and to the parties, saying the answering papers from the IEC and the DA, which is also opposing the MK Party’s case, were “voluminous” and raised “several issues”.
One of the issues was “expert reports”, said Xulu.
Both the IEC and the DA had taken issue with the evidence put forward by the MK Party because it was based on an analysis of the IEC’s voting numbers by “experts”. But these experts were not named in the MK Party’s affidavit by national organiser Nathi Nhleko.
Nor was there anything said by Nhleko about the expertise of these experts. These are requirements for the admission of expert evidence. Also, Nhleko had said in his affidavit that an affidavit from the experts would accompany his own and be submitted to court, but this was not done.
In his letter, Xulu said this was why the MK Party had earlier asked the court if it could supplement its court papers, but it did not receive a directive from the court on this request.
“This case is extremely important and should not be decided based on noncompliance with the strict rules of the court. We do not mean to understate the importance of complying with procedural requirements, but this case raises very many questions that are at the core of the legitimacy of our electoral process,” said Xulu.
He said the IEC had also not given a technical report “explaining the failure of the results for a period of approximately two hours during a critical period of capturing results”. The court “must give a directive” on how “technical reports must be received”, said Xulu, “including a possible referral of such expert evidence to oral hearing”.
In the IEC’s answering affidavit, chief electoral officer Sy Mamabolo gave a lengthy and detailed account of what happened in the approximately two-hour period when there was a “temporary fault with the commission’s leader board and online results dashboard”, and said the results were not compromised. But Mamabolo did not rely on or refer to any expert analysis for his explanation.
Xulu also asked the court for directions on whether the provincial legislatures and the chairperson of the National Council of Provinces should be joined as parties to the case — rather than the case dismissed because they had not been joined, as requested by the IEC.
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