An application to the electoral court by the MK party to set aside the election faces several immediate obstacles — the most pressing being that by Wednesday morning most of the parties that were supposed to have received court papers had not.
The party applied to the electoral court to declare that the national and provincial elections were not free and fair, to set aside their results, and to direct President Cyril Ramaphosa to proclaim a new election date within 90 days.
In an affidavit, the MK party’s Nathi Nhleko alleged evidence of “vote irregularities” that were “glaring and inexplicable on any other basis other than that there was a massive attempt to subvert the democratic will” of South Africans.
The Electoral Commission of SA (IEC) confirmed that it had received the application via email on Friday. But on Tuesday afternoon parliament’s spokesperson, Moloto Mothapo, said the speaker’s office was “not aware” of the application. The presidency’s spokesperson, Vincent Magwenya, said on Wednesday the presidency had also not received it.
The application was also supposed to have been received by political parties “with designated representatives in the National Assembly”.
But the DA’s attorney, Elzanne Jonker, said on Tuesday afternoon that the application had not been served on the DA. Brett Heron of GOOD and Rise Mzansi’s Songezo Zibi both said on Wednesday morning they had not been served with MK’s papers.
Political parties “without designated representatives in the National Assembly” — those that contested the election but did not win a seat — were all served collectively via a private attorney, Fawzia Khan & Associates. But Khan said on Wednesday that her firm did “not hold instructions to accept service on behalf of those political parties ... and have informed the applicant’s attorneys accordingly”.
“Service” of court papers — delivering an application to those that have been named as respondents — is not a technicality. If someone’s rights can be affected by a court case, the law requires that they be “joined” as a party to the litigation and notified so that they can decide if they want to participate in the litigation. Here MK is asking for the election results to be set aside and a new election called, which would affect all contesting parties.
In the Constitutional Court’s recent order dismissing an application by MK to interdict the first sitting of parliament, the court said MK “acknowledgment of its own irregular service while persisting with its application” could “not be sustained”. This was because the orders sought by the party carry “adverse consequences to the other parties who had not been properly served”.
“Even if the applicant met all the requirements for direct access, absent proper service the applicant cannot be entitled to the relief sought,” said the court.
In that application, MK had served its application on the other political parties through the IEC. The application reads the IEC would be “kindly requested” to forward the application to them. Here, the parties have been cited in a similar way, this time through the secretary of parliament.
The court papers were apparently served via email. But in the notice of motion, most email addresses seem to be incorrect. The address for a state attorney for the president was “@justice.go.za” (it should have been “gov”). Another was to a name — “@presidency.dov.za”. The speaker’s address — through which political parties in the National Assembly were also supposed to be served — was the secretary of parliament — “@dov.za”.
MK’s attorney, Barnabas Xulu, did not respond to questions on Tuesday about whether the application was served on all the parties or filed in court.
Another potential hurdle for MK is that the application is late in terms of the court’s rules. Review applications must be made within three days of the decision at issue — here the decision to declare the election free and fair.
The rule is framed strictly: “Failure to comply with the prescribed time limits or directives of the court will, by the mere fact thereof, result in a party being barred, unless the court, on good cause shown, directs otherwise.”
So if a party is late, it may still get its foot in the door. But it must show “good cause”. The problem for MK is that it has given no explanation or apologised (asked for “condonation”) to the court for being late. There is nothing in its application about being late.
There is also the question of how the court would treat the evidence put up by MK, which it says shows discrepancies in vote counting that are “evidence of deliberate vote-rigging in that an IEC official was deliberately involved in changing the accurate votes captured at the voting district and replacing those results with false numbers”.
There are at least two problems here. The evidence is based on “a document prepared and analysed by the experts of the applicant”. But these experts are not named, nor their expertise set out. Nhleko says: “The evidence of serious electoral irregularities is dealt with in more detail in the supporting affidavit of the applicant’s experts filed together with this application.” But this supporting affidavit was not annexed to the court papers.
The electoral court’s rules do not say how the court deals with evidence, but in the recent case between MK and Jabulani Khumalo — which the party won — the court applied the Plascon-Evans rule, where, if there is a factual dispute in court papers, the respondent’s version is chosen. This would suggest if the IEC were to dispute the facts put up by MK, the IEC’s version would prevail.
Second, even on its face and with no contradiction from the IEC, none of the evidence shows an “IEC official was deliberately involved in changing the accurate votes captured at the voting district and replacing those results with false numbers”.
The evidence comprises tables of data of voting numbers — votes cast and counted — and alleges discrepancies. But there is nothing in the evidence showing officials tampering with votes.
The court is yet to issue directions in the case and no answering court papers have been filed in court.
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