The Electoral Act requires all political parties to submit lists of their candidates for MP ahead of the elections. The lists are then laid open for inspection and the public may object to individual candidates — as happened in the case of MK Party leader and former president Jacob Zuma, leading to his exclusion from the party’s list ahead of the May elections.
In 2017, the Constitutional Court said this list requirement was “crucial”.
“The people vote for a particular party knowing in advance which candidates are on that party’s list and whether they can trust them,” said the apex court.
It is from these lists that the IEC determines who goes to parliament. Yet 15 of the MK Party’s current MPs were not on the lists submitted to the IEC ahead of the election — including its leader in parliament John Hlophe, who was impeached as a judge for gross misconduct, and Lucky Montana, Siyabonga Gama and Brian Molefe- implicated in the report of the state capture commission.
For a year after an election party lists may not change — except in one way: a party may supplement its lists if “a vacancy has occurred and the appropriate list of candidates concerned is depleted”.
The act says supplementation may be done only once in the first year after the election. It is done “in order to fill casual vacancies: provided that any such supplementation must be made at the end of the list”.
For a year after an election party lists may not change — except in one way: a party may supplement its lists if 'a vacancy has occurred and the appropriate list of candidates concerned is depleted'
— Constitutional Court
The MK Party’s national list to the IEC ahead of the elections comprised 199 names. In court papers filed in July in its case over parliament’s decision to send Hlophe to the Judicial Service Commission, the DA said that, after the election, seven of the members of the MK Party who would have received seats either resigned or were expelled. “In addition, 162 members who were on MK’s list and who would have received seats in the National Assembly stated that they were not available to accept a seat”.
This was how names like Hlophe’s, which were nowhere on the original list, climbed to the top of the list.
There was a second supplementation process later in July and August — this time to the party’s regional list. This was how Gama, Molefe, Montana and others came to be MPs.
Ten MK Party MPs who were removed, apparently in this second supplementation process, challenged their removal in court. In an affidavit in this litigation, Zuma explained what happened with his party’s lists.
Due to the tight deadline imposed by the IEC, “all sorts of names were improperly and irregularly included in the list without proper consultation and vetting and simply to achieve compliance,” he said.
Several candidates were not bona fide members or were included on “politically questionable or suspicious grounds by their friends, neighbours, relatives or spouses, which is self-evidently unacceptable”, said Zuma. Some of them did not possess the necessary skills set, he said — probably due to “our regrettable lack of time for screening”.
More than 90% of the names on the list were not known to him. “I was falsely assured of their bona fides and the authenticity of their status.”
As a consequence of this “mishandling”, the official appointed to compile the lists was removed and a criminal complaint of fraud was opened, said Zuma. “It fell to me to rectify these teething problems” and a “process of cleansing the lists” followed.
But it “proved impossible to attend to all necessary internal administrative issues prior to the election date,” said Zuma. Given this “historical messy process”, the process of “clearing up the lists had unfortunately not really been completed” by the time MPs were due to be sworn in.
Zuma’s affidavit suggests that the supplementation of the MK Party’s lists was not done “in order to fill casual vacancies”, as set out in the act, but to cleanse the lists. Given that statutes are interpreted by looking at their purpose and statutory context (including the “crucial” requirement that voters know who they are voting for), it may be questioned whether the law permits the supplementation mechanism to be utilised in this way.
Zuma said the list changes were legally “permissible” and parliament seems to agree. The DA said it believed the process by which Hlophe was made an MP was “inconsistent with the purpose of the Electoral Act, even if it complied with its letter”. It reserved the right to challenge the process, but it has not done so.
The 10 disgruntled MK Party MPs failed to obtain an urgent interim interdict to prevent their replacement. They may yet succeed in their longer-term litigation, but their case in the urgent court was not based on electoral laws, but on their alleged rights as members of the party and of parliament to just administrative action. It also emerged in court that there were settlement negotiations in the works, suggesting that the second part of the case may never materialise.
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