The Electoral Commission of South Africa (IEC) has asked the Electoral Court to press ahead and decide an application by the MKParty to set aside the election or urgently convene an oral hearing — without accepting any more court papers.
But the MK Party said this would be “manifestly unfair and not in the public interest”.
This follows the MKParty missing its Thursday deadline to file a replying affidavit and instead asking for “further directives” from the court.
The replying affidavit was the MK Party’s opportunity to counter what the IEC had said in its response to its case that the election was not free and fair. The MK Party has urgently asked the court to set aside the election and order the president to proclaim a new election date.
The replying affidavit was — according to the court’s directions — due by 4pm on Thursday. Instead of filing it, the MK Party wrote to the court and asked for further directions, saying the answering papers were “voluminous” and raised “several issues” — including the issue of technical reports.
The IEC and the DA, which is also opposing the MK Party’s case, had taken issue with the evidence put forward by the MK Party, which was based on an analysis of the IEC’s voting numbers by “experts”. But the experts were not named in the party’s founding 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 an affidavit from the experts would accompany his own and be submitted to court, but this was not done. In the letter, the party’s attorney Barnabas 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.
He also said that the IEC had not submitted its own technical report about the fault that made the commission’s leader board and online results dashboard go down for two hours.
But the IEC immediately objected to this request. The same day, it wrote back saying the request was “irregular”.
“It is not for the Electoral Court ... to direct parties about what they may or may not include in their answering papers,” said the IEC’s attorney, Moeti Kanyane. He said it was “entirely foreseeable” that the answering court papers would be voluminous. The MK Party had also chosen to launch its case without the expert reports it had referred to in its court papers — “it must be held to its election,” Kanyane said.
“It cannot rely on its own failures in this regard as a basis to request the court to grant directions,” said Kanyane.
He said the case had been brought on an urgent basis and the court’s rules were clear that electoral disputes must be dealt with urgently. The request for further directions “will only delay the finalisation of the application”.
“The applicant’s delay ... is prejudicial to the commission,” he said.
But the MK Party said this would be unfair and not in the public interest. Xulu said the IEC had a “special constitutional obligation” to ensure that evidence relevant to its conduct was placed before the court. “Our client is not in a position to have the matter heard as proposed by the IEC,” said Xulu.
Xulu said the MK Party noted “the IEC’s rush to have this application dismissed on its technicalities”. This could be cured by the court issuing the directives that the MK Party had proposed.
The court has yet to respond.
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