MK party, IEC still wrangling over withdrawal of vote-rigging case
The MK party and the Electoral Commission of SA (IEC) are still wrangling over whether the party can withdraw its case to set aside the recent national and provincial elections — with the IEC insisting the party may withdraw only if it agrees to a court order that it may not bring another case “on the same or substantially similar issues” without the court’s permission.
The party’s lawyers have refused to agree to this condition, saying, “Our client cannot waive its constitutional rights to approach the court.”
The MK party has, since July 3, been trying to withdraw its case from the Electoral Court, in which it made explosive claims of “deliberate vote-rigging” and “huge acts of fraud” by the IEC. But it has simultaneously said that its withdrawal is only temporary and insisted it has evidence to support its claims. In correspondence to the court, it said it was withdrawing only “for now” while its experts compiled evidence in a way it could be put before a court properly.
The IEC has said the MK party has no credible evidence to support its “entirely spurious” case and wants the case to proceed and be decided by the court.
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”, said the IEC’s attorney in a letter after the MK party first tried to withdraw the case.
The IEC said the first notice of withdrawal by the party was irregular, and requested that the matter be set down for hearing. The Electoral Court then set it down to be heard on Monday July 29. Two further notices of withdrawal by the party ahead of the July 29 hearing were rejected by the IEC.
Then, on the Friday afternoon before the case was meant to be heard, the court withdrew the case from the hearing roll and sent it for “case management”. But the parties still cannot agree on a way forward.
The IEC wants its costs paid on a punitive scale. It also wants the party to agree to an order that it will not come back with a similar case — “without the leave of the court on good cause shown”.
In heads of argument submitted to court before the Monday hearing that did not happen, the IEC’s counsel said the party was “insisting it has evidence to support its claim of serious irregularities ... while failing to produce the evidence”. If the party had evidence, it should produce it. “If it does not, then it ought to concede it does not,” said the IEC’s counsel, Tembeka Ngcukaitobi SC.
Responding to the IEC’s letter last week, the party’s attorney, Barnabas Xulu, said the condition sought by the IEC was “rather shocking”, coming from a constitutional institution tasked with promoting, protecting and giving effect to constitutional rights.
“Our client does not consent to your condition in terms of which you wish to impose a banning order on our client’s right to exercise its guaranteed right to access the courts,” said Xulu.
The court is yet to issue a directive.