IEC says MK Party's withdrawal of case 'irregular' and asks Electoral Court to hear it

The Electoral Commission of South Africa (IEC) has asked the Electoral Court to refuse to accept the MK Party’s withdrawal of its court case to set aside the elections, saying the party made “serious allegations” about the credibility of the election. 

After accusing the IEC of “deliberate vote-rigging”, the MK Party on Wednesday sent a notice to court withdrawing its case.

On Friday the IEC wrote to court saying the notice of withdrawal was irregular and asked the court to set down the case for argument. 

“It is an absolute imperative that the matter is ventilated publicly and a final decision be made by the Electoral Court, at the very least to confirm whether the allegations against the electoral commission were made vexatiously and without just cause,” said the IEC’s attorney Moeti Kanyane in a letter. 

Kanyane said the MK Party had also not offered to pay for the wasted costs of the litigation, “which it was required to do”. In this case, a punitive costs order against the MK Party was warranted, he said.

The party was also obliged to get permission from the court to withdraw the case because the court had issued directions in it. 

When the MK Party withdrew the case it sent a letter to the court saying it would be back again soon and the case was only being withdrawn “for now”. The party still believed the elections were not free and fair.

“The withdrawal is in no way an admission that our client does not have a compelling case for the orders it seeks. The contrary is true,” said attorney for the MK Party Barnabas Xulu in the letter. 

The party had evidence of election irregularities. “We have, however, advised our client there are procedural and technical issues that need to be complied with to present such evidence before the application can be adjudicated upon by the court.”

Xulu said the MK Party’s experts “continue to uncover further evidence” of irregularities. This was “so serious it would be reckless to risk the application being dismissed on the basis of the IEC’s technical objections”.

The party’s experts needed time to prepare “comprehensive reports” involving a thorough assessment of the IEC results, he said.

After the MK Party filed its founding court papers, the IEC and the DA (which also entered the fray to oppose the application) filed answering papers. The IEC disputed the MK Party’s claims, including the evidence it proffered of voting irregularities. The IEC’s Sy Mamabolo said the MK Party’s claim that 9.3-million votes were unaccounted for was “patently false”. 

Then, when it was time for the MK Party to file replying court papers — to contest what the IEC and DA said in their answering papers — it did not file.  

Instead, it asked the court to issue new directions to address what it said were “technical objections” by the IEC — expert reports and an expert affidavit that were supposed to accompany the MK Party’s court papers but did not and the failure to include the National Council of Provinces and the provincial legislatures as parties to the litigation.  

Further directions were not forthcoming from the court. “In the absence of any directives regulating the further conduct of the matter ... the MK Party has decided the matter should be withdrawn,” said Xulu.

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