Despite three notices of withdrawal by the MK Party, its court case alleging “deliberate vote-rigging” and “huge acts of fraud” has instead been referred to an Electoral Court judge for “case management”. However, a hearing scheduled for Monday will no longer proceed.
The Electoral Court issued directives on Friday afternoon after a war of words in correspondence between the MK Party, which insisted it had withdrawn its case, and the IEC, which said the MK Party's notice of withdrawal was irregular and that the case must proceed.
The court's directives mean that the MK Party has not succeeded in withdrawing its case yet, but also that it will not be heard on Monday, and finally determined after that hearing, as the IEC wanted.
The MK Party first sought to withdraw its case on July 3 after the Electoral Commission of South Africa (IEC) filed answering papers saying the MK Party produced no credible evidence of vote-rigging.
The party accompanied its withdrawal notice with a letter saying it had evidence of voting irregularities, but its experts needed time to put its case together in the right way, so that it could properly be put before the court. It was only withdrawing its case “for now”, it said.
The IEC said the withdrawal was irregular and requested the case be heard, saying it was “an absolute imperative that the matter is ventilated publicly and a final decision be made by the Electoral Court, at the least to confirm whether the allegations against the commission were made vexatiously and without just cause”.
It is an absolute imperative that the matter is ventilated publicly and a final decision be made by the Electoral Court, at the least to confirm whether the allegations against the commission were made vexatiously and without just cause
— IEC
The Electoral Court set the matter down for hearing; and, until Friday afternoon, maintained a stony silence, despite repeated correspondence from the MK Party asking it to notify the parties that the case has been withdrawn.
In its most recent letter on Thursday, the MK Party’s attorney Barnabas Xulu said the IEC’s attitude “smacks of opportunism”. Its insistence that the case proceed was “simply vindictive and designed to achieve political objectives rather than in the public interest or the proper administration of justice”.
Xulu asked the court to “convey to the parties” before Monday that, given “the clear and unequivocal withdrawal of the application by our client”, the matter had been withdrawn.
This letter was mostly a repeat of a letter sent on July 19. This time, however, a new notice of withdrawal accompanied the letter, offering to pay the costs of the IEC and the DA (which had also opposed the application). In its July 19 letter, the notice of withdrawal said each party would pay its own costs.
On Thursday, the IEC filed its written argument. It argued that once a matter was set down it was not open to a party to unilaterally withdraw a case. While a court would normally allow an applicant to withdraw, there were “recognised exceptions”: if the withdrawal was abuse of court or if the interests of justice required that finality be reached.
“In this case, both of these exceptions apply,” said counsel for the IEC, Tembeka Ngcukaitobi SC.
He said the case was “founded on a litany of wholly unsupported assertions of ‘evidence’ of election fraud, vote-rigging and manipulation of the electoral process”. The MK Party made these assertions “without producing any credible evidence to support its allegations”. When they were made, the MK Party must have known there was no evidence to support them, yet it went ahead.
Now, in seeking to withdraw, the MK Party was continuing in the same vein: “insisting it has evidence to support its claim of serious irregularities ... while at the same time failing to produce the evidence”, said Ngcukaitobi.
He said if the party had evidence, it must produce it. “If it does not, then it ought to concede it does not.
“Failing any such concession, the applicant’s case must be dismissed, to put an end to the ongoing prejudice its spurious claims cause to the integrity of the commission and the credibility of the elected legislatures and government,” said Ngcukaitobi.
It was in the interests of justice that the court determine the matter. A lack of finality was prejudicial to the IEC and to the country and the public, who are entitled to finality in the election.
He said the MK Party case on vote-rigging was “hopeless”.
The “expert evidence” it brought was not admissible in court — “no reliance can be placed on it”. The data it brought was claimed to be “data sets from the IEC”, but the figures did “not align with the data of the commission”, said Ngcukaitobi.
According to the IEC’s data, all votes were accounted for and all valid votes had been counted. There were no “discrepancies” in the IEC’s data, as claimed by the MK Party.
The MK Party’s case was “entirely spurious”, said Ngcukaitobi. The party had also repeatedly made “scandalous, unfounded and reckless allegations against the commission without any basis”. A punitive costs order was warranted, he said.
Note: This story is an updated version of an earlier story, published before the latest directives from the Electoral Court came on Friday afternoon. The previous version of the story, and its headline, said the case looked set to proceed on Monday.
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