The Constitutional Court’s rejection of the MK Party’s application to interdict the first sitting of parliament on Friday was quite a drubbing. In its order, the apex court rejected almost every argument made by the MK Party.
The court could have simply dismissed the application on the basis it did not have exclusive jurisdiction and it was not in the interests of justice for the highest court to hear the case directly. It has done so in previous cases, leaving the door open for a litigant to try its luck in a lower court.
But this time the Constitutional Court went further, saying the application “must fail on the merits”. It said the MK Party had not satisfied the requirements for an interim interdict, and that it had “also misconstrued the relevant constitutional provisions it seeks to rely on”.
Significantly, the MK Party had “not adduced facts to establish a prima facie case in respect of the relief it will seek in the main application”. The court was here referring to Part B of the MK party’s case, in which it wanted the court to set aside the election because the Electoral Commission of South Africa (IEC) had prematurely declared it free and fair.
[MKP has] not adduced facts to establish a prima facie case in respect of the relief it will seek in the main application
— Constitutional Court
The finding of a dearth of facts in the MK Party’s application should be emphasised, given the party’s persistent public claims of vote-rigging.
In its court papers, the MK Party did not have to prove there was vote-rigging. It needed only to bring enough facts to show a prima facie breach of its rights — one which was “open to some doubt”.
On this score, interim general secretary Sihle Ngubane began badly by saying that, though the party was “in possession of a large and growing body of evidence to support ... material irregularities and/or vote-rigging, no useful purpose will be served including such information herein at this stage”.
This case was not about challenging the IEC’s dismissals of claims of vote-rigging, he said. The MK Party’s case was that the IEC acted unlawfully by “rushing” to declare the election result when there were objections that had not yet been properly dealt with. This could be shown on facts that were “mostly common cause”, said Ngubane.
But even here, there was a dearth of facts. Ngubane spoke of the many objections finalised by the IEC that were not “satisfactorily dealt with” and would be “pursued in the appropriate forums”. But he did not say which objections were not dealt with properly. Or why. Or how they would be pursued further.
Rather, he relied on a petition signed by the MK Party and 25 others “making reference to hundreds of examples of irregularities”. The petition was not annexed to the court papers. The crux of his complaint was that “within minutes” of the parties saying they were unhappy, the IEC chairperson announced that the declaration ceremony would proceed — “irrespective of the request to the contrary and despite the unforeseen existence at that stage of at least 579 unresolved objections”.
This complaint ignores the scheme under the Electoral Act that provides for a quick turnaround time for dealing with objections. While the legislation says an election cannot be declared until all objections have been dealt with, the commission was also, by law, constrained to decide on the objections within a set time frame.
Moreover, if parties were dissatisfied with the IEC’s decision, they had recourse to a remedy. In terms of the Electoral Court rules, parties dissatisfied with the IEC’s decisions have three days to approach the court. They have longer if there is “good cause” for the delay. The MK Party did not give a single example of a political party that had approached the Electoral Court.
Ngubane spoke of the “indisputable fact” there were “new objections”. These remained to be considered properly by the IEC and were “likely to have a material effect on the outcome” of the poll. He did not say what these new objections were, who made them, or why they would have a material effect on the election result. It was what lawyers call a “bald allegation”, there being no facts to back it up.
There was the “common-cause fact” that “the entire results system and dashboard crashed and didn’t operate for almost two hours”. IEC chief electoral officer Sy Mamabolo has publicly disputed a crash. The affidavit did not deal with this. Instead, Ngubane said the party had written a letter to the IEC asking it “pertinent questions”, but its response had been “cavalier”.
So the MK Party procured its own IT experts whose report identified “serious weaknesses, including possible illicit deletion of data, the corruption thereof, as well as the loss of vital information”.
The report was annexed to the papers. It did not identify the IT experts or say what their expertise was — both of which are essential for the admissibility for expert evidence. Regarding its “technical analysis”, it said, “We cover all aspects of mathematical and statistical analysis ... to perform modelling techniques and tests to show patterns in data from all aspects [and] draw out logical deductive proof on findings.”
But the report contains no mathematical or statistical analysis. It does not provide any models or show any patterns in data. Nor does it provide any logical deductive proof for its findings. As expert evidence, the report would be inadmissible. But, more importantly, it says very little and shows nothing.
It is therefore entirely unsurprising the Constitutional Court found the MK Party had not laid a sufficient factual foundation for its case, even on a prima facie basis.
So far, there has been a lot of noise in the public domain about vote-rigging, but no real evidence of it. However, should such evidence emerge, even at this late stage, the law caters for this possible eventuality, and the doors of the courts remain open — provided there is good cause for them to hear the case.
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