The Electoral Court has dismissed a request by Reyno de Beer to investigate five Electoral Commission (IEC) commissioners for disregarding another pending matter when they approached the court to declare MK Party leader Jacob Zuma ineligible to be a National Assembly candidate in the May general elections.
De Beer, a self-taught legal consultant and political activist, approached the court in May in his personal capacity, but also in the interest of Zuma, the public and MK Party in particular.
He requested the court to investigate the five IEC commissioners in their personal capacity for asking the court to order that Zuma did not qualify to contest for a seat in parliament due to his 15-month prison sentence.
De Beer said the commissioners did not consider the pending matter before the African Commission on Human and People’s Rights (ACHPR) when they approached the courts to seek Zuma’s removal from contesting the elections.
The matter before the ACHPR was brought by the Liberty Fighters Network (LFN) to challenge Zuma’s imprisonment. LFN was founded in 2015 by De Beer who serves as its president.
De Beer contended that the “ongoing international process” by the ACHPR was known by the IEC’s commissioners and it was relevant to Zuma’s eligibility to be a candidate in the National Assembly. However, the commissioners failed to consider this process and to disclose its existence to the Constitutional Court, which De Beer said was necessary for the court to reach an impartial, balanced and independent decision.
De Beer further contended that the “intentional concealment” of the matter by commissioners was intended to “harm” Zuma and the MK Party, to deny voters the right to make an informed choice, and to subsequently interfere with the election outcomes resulting in a process that was neither free nor fair.
Despite this complaint, De Beer did not disclose to the Electoral Court the decision by the ACHPR but said it must remain confidential, despite alleging that the commissioners were aware of it and concealed it in bad faith, acting Electoral Court judge Seeana Yacoob said.
He further alleged that the IEC appealed the Electoral Court’s decision in the MK Party matter to the Constitutional Court for other reasons besides seeking clarity on the interpretation of section 47(1)(e) of the constitution as, according to De Beer, seeking such clarity would have needed disclosure and consideration of the proceedings before the ACHPR.
“It is unclear what the true purpose of the appeal is then purported to be, though one infers that it has something to do with influencing the outcome of the elections. It is unclear also how the interpretation of section 47(1)(e) of the constitution depends on the factual existence of the African Commission proceedings,” Yacoob said.
In their defence, the commissioners argued that De Beer’s complaint was “frivolous and vexatious” as it did not disclose any evidence of misconduct, incapacity or incompetence.
The commissioners stated they were unaware of the ACHPR’s process until De Beer brought an application to the Constitutional Court to intervene in the IEC case earlier this year, which the court dismissed.
They pointed out that the process at the ACHPR was not relevant to what they were dealing with and once they became aware of the process, there was no obligation on the IEC to raise it before the Constitutional Court.
The commissioners said the IEC was a Chapter 9 institution and unsubstantiated complaints could result in such institutions being intimidated to not properly carry out their constitutional function.
“[The commissioners] point out that the [IEC] is independent from the executive, legislature and the judiciary and has nothing to do with the international affairs of the [country]. [The commissioners] point out also that Mr Zuma and the MK Party’s counsel chose not to raise the ACHPR’s process after De Beer raised it in his application, so the allegations about suppression of relevant information can be viewed with some doubt,” said Yacoob.
However, the idea that the commissioners, without knowledge of the content of the ACHPR matter, had an individual obligation to disclose the contents and refer them to representatives of the IEC after realising it could change the outcome of the elections, was not only “incredibly far-fetched, but impractical, meritless”. The idea was also based on the incorrect assumptions of how the government and independent state institutions interact and the difference between the obligations of the individuals in their personal capacity and official capacity.
“Certainly, no commissioner in their personal capacity would have had the authority to instruct the legal representative of the commission,” said Yacoob.
Yacoob ruled that De Beer’s complaint that the ACHPR process was not given “airtime” by the IEC, the media and the courts had no merits and did not require an investigation.
However, this did not mean that all the points raised by the IEC or the commissioners had merit as De Beer, as a member of the public, had standing.
“The integrity of the members of the [IEC] is of vital public interest and if there is a real concern, anyone can and should raise it. The problem here is whether there is a real concern.
“As far as the complaint that there was a failure to publicise the ACHPR process is concerned, there is no obvious conflict of interest between the [IEC] and the commissioners, and there is nothing irregular in the way in which the commissioners have responded to the complaint. Indeed, the commissioners would have none of the obligations Mr De Beer contends they do if they were not members of the [IEC], and therefore their response through the [IEC] in this particular instance, when the obligations of the commissioners are not at odds with the obligations of the IEC, is not in any way irregular.”
Yacoob dismissed the commissioners’ request that an order of punitive costs be made against De Beer, saying this could have a “chilling” effect and prevent complaints against the IEC and commissioners from being made, which would be undesirable.
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