If the Electoral Commission of SA (IEC) is granted the power to police election speech by political parties, this would ultimately undermine the freedom and fairness of the country’s elections, the DA says.

The opposition party made the argument in papers filed with the Electoral Court in which it challenged decisions by the IEC, most notably ordering the DA to apologise to its former Cape Town mayor Patricia De Lille, who now leads the newly formed party Good.

The national and provincial elections are expected to be hotly contested as parties vie for support at the polls on May 8.

Multiple complaints have so far been laid in the run-up to the elections, which included De Lille’s complaint over the messaging used in tele-canvassing by the DA.

The DA was found to have violated the IEC’s electoral code of conduct after it spread false information about De Lille, who it said was fired from her job as mayor. 

De Lille and the DA were embroiled in a protracted battle in which the party attempted to have her removed from office. The tiff culminated in De Lille agreeing to resign from the party.

De Lille said on Monday that her party had approached the Western Cape High Court to seek an urgent interdict against the DA to “stop their lies”.

She said the DA refused to stop their messaging about her and instead opted to review the IEC’s decision, which she described as a way to continue “their malicious lies against me”. 

“The DA have a right to apply to review the IEC decision but they do not have the right to continue to make false statements about me. My lawyers have requested the DA to give me an undertaking to stop using their false script, saying that they ‘fired me’, at least until a court has determined the finding of the IEC,” De Lille said.  

“The DA have unreasonably refused to do so and this forces me to approach the courts, once again.”

The DA has asked the Electoral Court to review and set aside being ordered to cease and desist from saying the DA “fired” De Lille, and that it apologise to De Lille. 

The DA is also challenging the IEC’s decision to not look into a complaint laid by the party about the ANC’s claim that it made a profit of R1bn by raising water tariffs in Cape Town.

The party described the IEC’s  decision on the De Lille matter as unlawful, saying the commission does not have the power to give binding directions. It argued that this power resided with the Electoral Court. 

The party said it was not unlawful for the DA to say that it fired De Lille, as it was true, or at least merely lawful comment.

The difference in how the IEC has dealt with complaints is at the heart of its application, which federal executive chair James Selfe said gave rise to the decision to challenge the IEC’s decision on not investigating the DA’s complaint against the ANC.

Selfe said it was only after the IEC’s decision on De Lille that it was clear that the IEC appeared willing to treat complaints by the DA differently to complaints about the DA.

Selfe crucially said in the founding affidavit that his party considered the matter a test case about the proper role of the IEC in policing electoral speech. He said that the IEC’s decision in the De Lille matter has resulted in it claiming the power to “finely interrogate” the truth of pre-election political speech and the power to determine what political parties may or may not say.

“This is a deeply intrusive power,” Selfe said, arguing that free and fair elections do not require the IEC to police electoral speech.

“On the contrary, the more interventionist the IEC is, the less free and fair the elections are. The marketplace of ideas is a better generator of truth than bureaucrats at the IEC,” Selfe said.

He added that to constantly ask the IEC to determine the truth of political speech requires it to take sides in political disputes, which can undermine its independence and non-partisanship.  

Meanwhile, the IEC told Business Day that it had received 18 complaints from various political parties between February 27 and April 19.

“Most of the complaints that the commission receive from political parties deal with alleged contraventions of the Electoral Act and/or breach of the Electoral Code of Conduct,” spokesperson Kate Bapela said.

“These complaints are with respect to how voters are canvassed, threats of violence and intimidation between members of various parties, the illegal removal of election posters and the use of funds to canvass and/or campaign for voters.”

Bapela said the IEC had resolved five of the 18 complaints. The others were still under investigation.

Of the five only one complaint was referred to the Electoral Court.

One of the complaints being investigated is against ANC secretary-general Ace Magashule by the DA after he gave a woman R400 during a door-to-door campaign in Philippi, Cape Town, which the party said amounted to vote-buying.

Bapela confirmed that the IEC had received the complaint and was  investigating the matter, but was unable to say how long the investigation will go on for.