As the year drew to a close, leaders of the MK Party were still publicly claiming that the May election was rigged. This “was not a small matter”, party president Jacob Zuma said at its birthday gala dinner in December.
Two court cases seeking to set aside the election, one in the Constitutional Court and one in the Electoral Court, went nowhere in 2024, but there is still one pending before the latter court, which must be resolved in the new year.
In court papers, the IEC was scathing about the MKP's latest application, saying the party had now “required the commission to answer three meritless cases to defend its integrity”.
The latest case is based on the expert evidence of Dr Vusi Mhlongo, who has a PhD in information systems and technology obtained last year. Summarising the expert evidence, the MKP's national chair, Nathi Nhleko, said it revealed “grave inconsistencies” in election result reports generated by the IEC dashboard.
But the IEC said Mhlongo’s evidence was not admissible because he is not an expert in election ICT systems or election data. He was also biased, with a “glaring lack of impartiality and objectivity”.
The IEC said the MKP's “grave inconsistencies” claim was a “trumped up” complaint about a “filtering omission” on one set of reports available on the IEC website, but these reports were not part of the system on which the declared results were captured and audited. It has asked the court to dismiss the case with a punitive costs order.
Like Zuma, the MKP seems to be in court a lot.
Another case expected to be heard early next year is about whether the party's leader in parliament, John Hlophe, can be part of the Judicial Service Commission (JSC). The first judge to be impeached in democratic South Africa’s history, Hlophe re-entered public life as an MKP MP and was then designated by parliament to sit on the body that interviews and recommends judges for appointment. The high court has put a temporary halt to him participating in the JSC, but whether this will be permanent is still to be decided.
With more JSC interviews expected in April, this case may generate some heat — particularly since the JSC will likely be looking to fill two vacancies in the Constitutional Court. And, with Justice Mbuyiseli Madlanga due to retire in July 2025, there will soon be a third. The JSC will also likely have to interview President Cyril Ramaphosa’s nomination for deputy chief justice — a choice he is yet to make.
The ConCourt is also scheduled to hear Ramaphosa’s referral about the constitutionality of key provisions of the Copyright Amendment Bill
Prominent litigation headed for the apex court in 2025 includes the “rand manipulation” case in which the Competition Tribunal faced off initially with 28 local and foreign banks, alleging a “single overarching conspiracy” to fix the rand-dollar exchange rate between 2007 and 2013 in breach of the Competition Act.
The case has a long and “torturous” history, the Competition Appeal Court said last year, and it is far from over. At this point it is about which of the 28 banks the commission originally cited may be included in the litigation. Some have already settled or applied for leniency and the commission abandoned its case against others. The fight now concerns the balance.
The Competition Appeal Court decided the commission had not established jurisdiction over all the banks it wanted to refer to the competition tribunal for price fixing. It reduced the number of banks that had to file answering affidavits to four. Unhappy with this outcome, the commission has turned to the apex court.
The ConCourt is also scheduled to hear Ramaphosa’s referral about the constitutionality of key provisions of the Copyright Amendment Bill. The bill was passed by parliament but Ramaphosa still has reservations. In written legal argument, his lawyers say parts of the bill may amount to an arbitrary deprivation of property and therefore breach the constitution.
One of the president's qualms is the specific exceptions created by the bill to copyright protection — for example, when universities create course packs for students, they may not have to pay publishers to photocopy and reproduce a chapter of a book or a journal article.
The president has asked the court to consider whether these exceptions comply with South Africa's obligations under international law.
But the NPO Blind SA argues that what is protected by copyright is not “property” as conceived of by the constitution. Even if it was, there was nothing arbitrary about the exceptions in the bill. The point of the exceptions was to allow access for educational and academic purposes and for libraries and archives, serving important protections in the Bill of Rights.
Then there is the litigation on the contentious National Health Insurance Act, which Ramaphosa signed into law two weeks before the election. The act has been challenged as unconstitutional in three separate cases — with more expected.
The organisations that have launched their cases are trade union Solidarity; the Board of Healthcare Funders of Southern Africa (BHF), which comprises medical schemes and administrators; and the South African Private Practitioners Forum (Sappf). They all say that while the universal healthcare aims of the NHI Act are laudable, the act is unconstitutional on several grounds.
These include that it is “impermissibly vague” and is an irrational measure because it cannot achieve its own stated aims. It is also “likely to exacerbate existing healthcare personnel shortages”, according to Sappf.
Health minister Aaron Motsoaledi has responded to Solidarity’s court papers, saying its case is speculative and premature because the act is not in force yet and will be implemented in phases over the coming years: “Any constitutional challenges could only be properly and fairly considered once the legislation has been fully brought into force and implemented and the full effects of the legislation are evident.”
Both the BHF and Sappf asked the high court to set aside the president’s decision to sign the act into law.
They said the president had an obligation to send it back to parliament for reconsideration, but the presidency says this is a question that may only be decided by the apex court. A preliminary fight about jurisdiction may delay the resolution of these cases.
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