By Karyn Maughan.
The Electoral Court has hit Jacob Zuma’s MK Party with a punitive costs order for the withdrawal of its first challenge to the validity of South Africa’s national elections, weeks after it launched a second application to rerun the vote.
“I am of the view that a punitive costs order is appropriate to dissuade litigants from instituting proceedings and then abruptly abandoning them when unsubstantiated,” Electoral Court Acting Judge Esther Steyn stated in a ruling delivered on Friday.
While the Electoral Commission of South Africa (IEC) had asked the court to rule that the MK Party could not launch a new election rigging case without convincing the court it had the evidence to do so, Steyn said granting such an order may threaten the MKP’s constitutional right of access to justice.
“On the papers before me, I am not persuaded that the withdrawal constitutes an abuse of process yet,” she said.
Steyn nevertheless noted that the MK Party’s conduct throughout its urgent legal challenge to the legality of South Africa’s May elections “has been marked by several irregularities” and constituted “a significant departure from normative litigation conduct”.
In these circumstances, she said, ordering the party to pay the IEC’s costs on an attorney-client scale was warranted.
The MK Party announced it was withdrawing its first legal challenge to the validity of the 29 May general elections, where it alleged that more than 9,3 million votes were unaccounted for, after the IEC filed a scathing rebuke of its complete lack of “credible and admissible evidence” for that claim.
In a new application filed earlier this month, MKP national chairperson Nathi Nhleko said the party had withdrawn its application because its expert witness said he “needed more time to scrutinise the election results, particularly in light of the lEC’s response and explanation in relation to the downtime experienced during the election”.
This is an apparent reference to the two-hour period that the IEC results board was down, which the commission is adamant had no material impact on the validity of the election outcome.
“After extensive consultations with experts and on receipt of their report, we had to deliberate on it with a view to being advised if it presented a credible case for the relief that we seek,” Nhleko said.
“We engaged other experts to stress test the approach of our expert and were persuaded that our complaint of serious voter irregularities is justified.
“There is incontrovertible evidence that the national and provincial elections were neither free nor fair as the process was riddled with serious irregularities, the nature of which are so egregious to vitiate the entire elections.”
According to Nhleko, the MK Party “would be irresponsible both as a registered political party, and as citizens, if we do not to persist with the application to set aside the election results and to seek an order directing that a fresh election be held”.
“In fact, we consider it our constitutional obligation to do so,” he added.
Nhleko is adamant that the MKP now has the expert evidence it needs to show that the May elections were not legally valid – despite multiple observer groups, public interest organisations and the vast majority of political parties declaring them to be free and fair.