After making claims of “forged numbers” and “glaring and inexplicable” voting irregularities that showed “deliberate vote rigging”, the uMkhonto we Sizwe (MK) Party this week withdrew its Electoral Court case to set aside the election.
However, in a letter to the court the party’s lawyers said the withdrawal was only temporary: “The MK Party has evidence of election irregularities. We have, however, advised our client that there are procedural and technical issues that need to be complied with to present such evidence before the application can be adjudicated upon by the court.”
The withdrawal was “in no way an admission that our client does not have a compelling case ... the contrary is true,” said the letter.
The first problem with the evidence was that it was based on expert analysis, but the MK’s 'experts' were not named, and neither was their expertise explained
The Electoral Commission of SA (IEC) was having none of it. On Friday, it wrote to the court saying the notice of withdrawal was “irregular” and asked it to set down the application for argument.
The IEC’s attorney, Moeti Kanyane, said the MK Party’s application had “made serious allegations as to the credibility of the election that produced the current government and the current parliament”.
“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,” he said.
The withdrawal was also irregular because the MK Party had not offered to pay the wasted costs of the litigation, as they were obliged to do, and because they were required to ask the court for permission to withdraw the action before they did so, he said.
In its letter, the MK implied its withdrawal was only to safeguard its otherwise compelling case against the IEC’s “technical objections”.
It said the IEC’s case was “based largely on technicalities”. The party’s “experts” continued to “uncover further evidence of election regularities [sic] that [are] so serious it would be reckless to risk the application being dismissed on the basis of the IEC’s technical objections”.
While it is true the IEC attacked the MK’s case on several grounds, its case was not confined to so-called technicalities.
The party had said in its founding court papers that, based on its experts’ analysis of the IEC’s own published results, there were “discrepancies” that resulted in “a total discrepancy of 9,336,828” votes. “This number represents votes that cannot be accounted for on the IEC’s own numbers,” said Nathi Nhleko, the party’s national organiser in his founding affidavit.
The first problem with the evidence was that it was based on expert analysis, but the MK’s “experts” were not named, and neither was their expertise explained. These are requirements for the admissibility of expert evidence to a court.
More importantly, the methodology of the “experts” in reaching their conclusions was nowhere explained in the court papers. Other than to say they came from the IEC’s own published records, the source for the MK’s numbers was unclear — making them impossible to verify.
All this was apparent from the MK’s court papers even before the IEC answered them. When the IEC answered the allegations, the answer was even more destructive. Chief electoral officer Sy Mamabolo said: “The applicant misrepresents the published figures of the commission ... on the correct figures as published by the commission, all votes are accounted for, and all valid votes have been counted.”
Mamabolo referred to the IEC’s own spreadsheets and compared them to the numbers in the tables attached to the MK’s affidavit, saying “there are fundamental errors in the applicant’s figures”.
He set out the errors. These included that the MK’s number of registered voters did not align with “the actual number of voters registered on the certified voters’ roll”. The MK’s numbers for votes counted were “unclear”, but they did not align with the commission’s figures for the number of valid votes cast or the number of total votes counted.
The allegation that 9.3-million votes were missing was “patently false”, said Mamabolo.
The MK had an opportunity to come back and contest what Mamabolo said. That’s what replying affidavits are for. It did not file a replying affidavit and withdrew its case.
The party could also have applied to court to augment its founding court papers — it had asked, via a letter, to file a supplementary affidavit. Responding, the DA said it should make a formal application to do this. The MK party could have done this, but did not.
Instead, it withdrew the case — “for now” — while continuing to insist it has evidence.
The court has yet to respond to the IEC’s request. But whatever happens, one thing should be clear for now, whether a final decision is given by the Electoral Court: for now, at least, the MK has produced no credible evidence of vote-rigging.
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