Tuesday’s hearing in the Electoral Court for the MK Party’s challenge to the national elections will not proceed as scheduled, after the court on Monday agreed to a postponement request by the party and the Electoral Commission said it would not oppose.
The court was set to hear an application by the MK Party to set aside the decision by the Electoral Court to declare last year's national and provincial elections free and fair. The party also wanted the court to order the president to call for a new election within 90 days of its order.
The postponement requested, sine die (to an unspecified later date), means the case will continue to languish undecided. It has been a year since the elections were declared free and fair, and more than six months since this court challenge was launched. It is the third court challenge to the election that the MK Party has brought.
Court cases related to election outcomes are normally treated as urgent and any review application of a decision of the Electoral Commission under the Electoral Act is meant to be brought within three days unless “good cause” is shown for it to be brought later.
The reason for the postponement is because the MK Party wants to appeal against an earlier ruling given in a preliminary skirmish over access to documents that it sought from the Electoral Commission. The party says without these documents, it is “not in a position to properly advance its case”.
The commission said it gave the MK Party all the documents it had asked for, except for those listed on item one of its list, which do not exist. But the MK Party said even the documents that came were handed over in a format it could not access.
It then applied for an order compelling the commission to hand over the documents. The order was refused, with the court saying it would give reasons for this order along with its overall judgment.
In legal submissions ahead of the planned hearing, the commission’s counsel, Tembeka Ngcukaitobi SC, called the case an abuse of process and said it was “a glaring example of vexatious and abusive litigation”. He said there was “clear pattern” to the MK Party’s litigation strategy, part of which was to request further documents — “in an effort to make out a case where there is none and to delay finalisation of the proceedings”.
Ngcukaitobi also argued that the application to compel the production of the documents was a further effort to delay the proceedings. But the MK Party’s Thabani Masuku SC argued that not providing the documents in a format that was accessible was something that should be “frowned on” by the court.
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