A year after the Electoral Commission declared the 2024 national and provincial elections free and fair, the Electoral Court is this week due to hear an application by the MK Party to set the results aside. And new papers filed on Friday by the party may delay the case further.
The MKP is also asking the court to order the president to call a new election within 90 days of its order.
The Electoral Commission has called the court challenge an abuse of process.
The MKP says the two-hour “downtime” of the leaderboard at the Results Operation Centre (ROC) on May 31 last year and “significant errors” in the results data on its website were never “credibly explained”. This led to one conclusion: “That the election results were not reflective of the will of the people,” says the MKP’s counsel, Thabani Masuku SC, in written legal argument.
The challenge to the election outcome is the third brought by the MKP since the outcome was announced. The first, to the Constitutional Court, failed. The second, to the Electoral Court — claiming vote rigging and fraud — was withdrawn in order for the MKP to collate its evidence. One of its claims was that there were 9.3-million missing votes.
The latest case does not mention the missing votes allegation. It focuses on the two-hour “downtime” and other “glaring inconsistencies” in the voter district results available on the commission’s website.
In heads of argument, the Electoral Commission’s counsel, Tembeka Ngcukaitobi SC, says there is a “clear pattern” to the MKP’s litigation strategy: In each application, the MKP alleges serious irregularities “on the basis of suspicion and incorrect factual assumptions or conclusions”. It also makes “scandalous” and “wholly unfounded” allegations against the commission.
The commission then gives detailed and substantiated answers, which the MKP does not meaningfully dispute, says Ngcukaitobi. Instead, it “resorts to argument and invective, a repetition of its unfounded claims and further aspersions on the commission”. Then the MKP requests that the court hear oral evidence and seeks more documents “in an effort to make out a case where there is none and to delay finalisation of the proceedings”.
He argues the case is another “glaring example of vexatious and abusive litigation” and has asked for a punitive costs order.
But Masuku says it is the Electoral Commission that has given “vague generalisations that are meaningless” in answer to the MKP’s complaints. Masuku argues that part of the reason the MKP withdrew its earlier case was because it needed information from the commission. It was only after the commission had explained the “downtime” that its expert was able to give a detailed report.
Now there may be a further delay. In its new court papers, the MKP has applied to appeal in a preliminary skirmish about documents from the commission, which the MKP says it is entitled to but has not been given. The commission says it handed over all the documents the party demanded, except for one, which does not exist. The court refused the MKP's application to compel the commission to hand over documents, hence the appeal.
In its application, the party said that without the documents, it was “not in a position to properly advance its case”. This suggested its lawyers may argue they cannot go ahead on Tuesday — when the case is scheduled to be heard.
If they do go ahead, Masuku argues, based on a report of the MKP’s expert witness, Vusi Mhlongo, that the commission violated “elementary” protocols of information or data technology when it interfered with the online reporting system when it was “live” and performing a critical function.
“The basic rule is that you don’t interfere ... unless there is a critical system failure,” argues Masuku.
The commission’s explanation — that it wished to optimise the system’s performance — was not credible and there had been no complaints about the system, he says. The “inescapable conclusion” was that the interference was “intended not to perform a legitimate, credible, transparent election management duty”.
But the commission says there was no “downtime” or “blackout”. The system continued to run and “remained fully operational and uncompromised”, argues Ngcukaitobi. The only thing that happened was that it did not display — because a system command had been inadvertently set to “not ready for display”.
The commissionHe argues the case is another “glaring example of vexatious and abusive litigation” and has asked for a punitive costs order.
It was also simply incorrect that there had been no complaints about how slowly the reporting mechanism was working, says Ngcukaitobi. The national team had received complaints from staff at provincial ROC’s on the slow reporting of their results, which had been uploaded at municipal level. Auditors at national, provincial and local levels had also indicated that audits were complete but results were not reflecting on the leaderboard. As a result, a decision was taken to implement an optimisation change.
Then, there were the discrepancies in the results on the commission’s website. Masuku lists several instances based on Mhlongo’s report, which concluded that “there is no basis to assume the system has integrity, given the overwhelming evidence of flaws”.
But Ngcukaitobi says the commission had “acknowledged the error on certain VD-level reports”. These were the result of a “filtering omission caused by a website coding error”. But the “critical point” was that this had no bearing on the integrity of the election results system or the election results.
“The declared results are based on the results that are captured, audited, collated and reported on the NPE results system, which is separate and functionally independent of the website and online dashboard,” says Ngcukaitobi.
The commission’s answering affidavit had also dealt — “point by point” — with each of the “grave inconsistencies” pointed out by Mhlongo. Ngcukaitobi says there was no lack of integrity in the NPE results system.
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