By Lehlohonolo Lehana.
Judgment in the African National Congress (ANC) application to declare uMkhonto weSiwe (MK) Party’s registration unlawful, unconstitutional, and invalid has been reserved.
The ANC argues that there were procedural flaws in the way the party was registered by the Deputy Chief Electoral Officer Mawethu Mosery.
It contends that the MK party was supposed to launch a fresh application and not supplement its original and initial application which was rejected by Mosery.
The ANC’s legal team, consisting of advocates Sesi Baloyi and Tshidiso Ramogale, argued that the Electoral Court had jurisdiction to hear the governing party’s application.
Ramogale pointed out that there was case law that negated the IEC’s argument.
“The simple point we make is that the argument that has been advanced by the commission about why this court doesn’t have jurisdiction was squarely rejected in the very same judgment they rely on, “the advocate told the court.
He dismissed the IEC’s submission to the court that the decisions of the commission’s leadership cannot be legally challenged.
“This position, we say, is plainly untenable in terms of the law,” Ramogale argued.
“The very notion of the arguments made by the commission in its papers that somehow despite the deputy CEO [chief electoral officer] or CEO’s decisions being an exercise of public power or performance of a public function, there is no court that can second guess or look into that questions for reasons that we simply say are untenable,” the applicant’s lawyer said.
Ramogale requested the Electoral Court not to dismiss the ANC’s application.
The advocate emphasised the importance of ensuring certainty regarding whether MK would be lawfully included on the ballot and stressed the urgency of this matter, noting that the elections were imminent.
“There are questions regarding the legality of a party on that particular ballot and whether that party should in fact be there in the first place.”
Baloyi dealt with the merits of the application, informing the court that the ANC was “not fighting” with the IEC, but with the commission’s deputy CEO Mawethu Mosery, who approved the MK party’s registration in September 2023.
“We are criticising the deputy chief electoral officer and the criticism is that he did not exercise his powers lawfully,” she said.
The ANC, in its court papers, argued that the MK submitted a supplementary registration application to the IEC rather than a new application, thus, rendering the process irregular.
The commission initially rejected the MK’s first application to register a political party lodged in June due to issues relating to signatures.
Baloyi argued the 4 August decision taken by Mosery to reconsider MK’s rejected application was not permissible.
According to the IEC, the ANC did not approach the Electoral Court within the prescribed 30 day to challenge the MK’s registration after their appeal had failed.
The ANC had approached the IEC with an appeal, but it was dismissed on 24 November.
During proceedings, IEC’s counsel Advocate Terry Motau argued that the ANC failed to challenge the registration of the MK party in the Electoral Court in time so there was no jurisdiction.
Motau said the ANC unsuccessfully appealed with the IEC.
According to the lawyer, this should have been the end of the matter.
“Having engaged the Electoral Commission’s appeal jurisdiction, it is not for the ANC to ignore the decision of that process that it followed. It cannot be correct and be permitted that once faced with that decision, a party would then elect that it is not going to impugn that decision, “the advocate argued.
The legal team of the uMkhonto weSizwe (MK) party consisting of Advocate Dali Mpofu and Advocate Muzi Sikhakhane, told the court that “we would not be here” if the ANC’s appeal with the IEC succeeded.
“The only reason is that they failed in that appeal, which a decision was given on the 24th of November,” Mpofu argued.
Mpofu also emphasised that the ANC did not approach the Electoral Court within the prescribed 30 days.
“Once it failed to do so then it made an election to challenge the decision of the commission by coming here and the implications of making that election are far reaching because it meant it accepted the dismissal of its case, “the advocate said.
He asserted that the ANC had come to terms with the existence of the MK party.
“The ANC did accept that outcome, they had reconciled themselves with the idea of the uMkhonto weSizwe party being registered in South Africa. So what changed?
“The only thing that made them wake up from their slumber was the announcement on the 16th of December by former president Jacob Zuma that he would vote and campaign for the MK party,” Mpofu argued.
The Electoral Court has reserved its judgment.
The ANC has been at odds with Zuma since he announced that he would be campaigning for the MK party in this year’s provincial and national elections.