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Picture: BLOOMBERG/WALDO SWIEGERS
Picture: BLOOMBERG/WALDO SWIEGERS

The MK party was “fully aware” from the start that it had no evidence of vote rigging, yet it persisted in making “scandalous and prejudicial allegations” against the Electoral Commission of SA (IEC) and litigating to set aside the election, said the IEC in court papers on Wednesday. 

The IEC’s written argument was filed in the Electoral Court in the MK party’s case to set aside the May election, claiming “deliberate vote-rigging” and “huge acts of fraud”.

The claims were roundly disputed by the IEC, which said the MK party had produced no evidence to back up its case.

Since the IEC filed its answering affidavit, the MK party has filed three notices to withdraw its case, all the while insisting in correspondence and in public statements that it does have the evidence and has a “compelling case”. Its withdrawal was only temporary, said the MK party. It would be back once it had compiled its evidence in a way that it could properly be brought before the court.

But the IEC refused to accept the withdrawal, insisting that the case be heard and an order given because the MK party’s application had made serious allegations as to the credibility of the election and about the IEC.

“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. 

Earlier in September, the court ruled the case would be decided “on paper” and without a hearing. It asked for written legal arguments to be filed by Wednesday.

The IEC’s counsel, Tembeka Ngcukaitobi SC, argued the court should order punitive costs against the MK party, saying this was “manifestly justified” by how the party had behaved.

Ngcukaitobi said the MK party had, in its founding affidavit, repeatedly claimed it “[had] evidence” of serious irregularities “but failed to produce it”.

The MK party’s Nathi Nhleko had referred to affidavits from experts, “but did not produce them”. He had referred to confirmatory affidavits from “unspecified conveners in voting districts, but did not produce these”. He had referred to an “alleged technical report ... but also did not produce it”, Ngcukaitobi said. Nhleko had also presented figures that misrepresented the IEC’s election data, he said. 

Only after the IEC had incurred the cost of filing its answering affidavit did the MK party then try to withdraw, Ngcukaitobi said. But even then it would not retract its allegation and its attorney, Barnabas Xulu, had persisted, in correspondence, in saying the party had evidence of irregularities and had a “compelling case”.

The MK party “sought only to play for time when its application had no merit. This is patently abusive and vexatious,” Ngcukaitobi said.

First prize for the IEC would be for the court to dismiss the application. But Ngcukaitobi said if the court does not dismiss the case and allows the MK party to withdraw, it should at least not let the MK party come back again without the court’s prior permission.

The effect of the MK party’s proposed temporary withdrawal was that the commission would have to respond to the “same case for the third time”, said Ngcukaitobi.

The MK party had already taken the IEC to the Constitutional Court to set aside the election. The application was dismissed, with the apex court saying the MK party had not brought the facts to establish a prima facie case.

“The commission has now twice had to foot the bill to respond to allegations, which, to the [MK party’s] knowledge, are unfounded,” said Ngcukaitobi. When the MK party first tried to withdraw, the IEC asked it to undertake it would not again launch “the same or substantially similar application”.

It refused. 

Ngcukaitobi said the court had a duty to protect itself from being further abused. It should order that the applicant may not reinstitute an application in the Electoral Court “on the same or substantially similar issues and relief without the leave of this court on good cause shown”. 

The MK party wrote to the court on Thursday saying it would not be filing legal argument in terms of the court’s directive. The party said it “stands by its prior submissions concerning the withdrawal of [the] application and costs therein and has no further submissions”.

Update: September 26 2004
This story has been updated with information from the MK party.

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