ANC warns of threat to free and fair elections if MK remains on ballot

On Tuesday, the court heard an application by the ANC to have the Independent Electoral Commission's registration of the uMkhonto weSizwe Party declared irregular and unlawful.

The ANC initially failed to submit its objection to the MK Party's registration on time, leading to the IEC dismissing the case.

It has now turned to the Electoral Court to hear the matter.

The ANC’s legal counsel, Advocate Tshidiso Ramogale, told the court its decision could have serious implications for free and fair elections.

"The court must ask itself what the consequences would be if it were to turn the ANC away. We say that there are three.

“Lawfulness of decision-making is placed at the centre of free and fair elections. We say that if you cast aside the rule of law in this particular application, there is a serious immaterial threat to whether the elections we are about to have in May are indeed free and fair.

“This is because there are questions regarding the legality of a party on that particular ballot and whether that party should be there in the first place.

“We say that's not an issue that the court should turn away from,  it is the very thing that this very court was established to decide, to protect free and fair elections, to protect the right to franchise and the rule of law," Ramogale argued.

He said it should be up to the Electoral Court to determine issues of legality in this case.

“The point we make is that the only way that the commission can deal with an appeal is if the grounds that an aggrieved party sets out are in any of those three. The question then becomes: What if a party wants to raise an ultra vires challenge? What if they want to bring a legal challenge? Where do they go? 

“In addition, we say they came here because this is a court, as established in Section 166(e). It has powers under Section 172 of the Constitution to declare any law or conduct inconsistent with the Constitution.”

Ramogale warned that an unsuccessful application would see the ANC approach the High Court.

"And if the High Court were to rule in our favour, they (the IEC) will have to attempt to unscramble the egg after 29 May.”

At the same time, the IEC's legal representative, Terry Motau, warned the court that a ruling in favour of the ANC would only encourage parties not to follow due process.

"As of the 11th, they knew of the decision, and they said they didn't need to go to the election commission. Of course, the argument has to be legal.

"As a matter of fact and law, the deputy chief electoral officer's decision was appealed, and there is a decision, which is why MK as a political party enjoyed this thing of registration and recognition."

The MK Party's legal representative, Advocate Dali Mpofu, told the court that the ANC's explanation that it couldn’t appeal the IEC's decision because of the festive season is an "unintelligible thing".

Judgment has been reserved.

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