Zuma’s MK party may be litigiously backing itself into corner with doomed urgent application

The election of the President will not be derailed by the urgent application lodged with the Constitutional Court on Tuesday by the MK party.

The National Assembly will convene for the first time on Friday morning to elect a Speaker, Deputy Speaker, and the President after those members elected to the Assembly and present have been sworn in.

While the election of the President is a pivotal (and constitutionally the only) requirement to form a government, much will depend on whether the ANC reaches agreement on the formation of a coalition government, and if it does, on the content of any such agreement.

If no coalition agreement is reached by Friday, negotiations are likely to continue (even after the election of the President), and it may well take weeks for parties to reach full agreement over the terms for the formation of a coalition government. If no agreement is reached, the President would continue to head up a minority government for as long as he or she is not removed from office by a vote of no confidence.

The election of the President will not be derailed by the urgent application lodged with the Constitutional Court on Tuesday by the faction currently in de facto control of the MK party in which it seeks to interdict the Chief Justice and/or the Secretary of Parliament from convening and/or conducting the first sitting of the National Assembly (NA), or alternatively, to suspend the decision to convene the first sitting on Friday.

The first problem is that the Constitutional Court is not geared to deal with urgent matters in the time remaining before the sitting on Friday and I would be very surprised if it finalises the application before the first sitting of the NA.

But even if it did so, the application is bound to fail. To understand why this is so, it is important to note that the MK application is based on two claims. First, it claims that section 46(1) of the Constitution requires at least 350 members to be present and sworn in for the National Assembly to be properly constituted. Second, that the IEC prematurely and unconstitutionally declared the 2024 elections free and fair, because not all objections had been dealt with when it did so, and because the IEC had not given a full explanation for the fact that “the entire results system and dashboard crushed and did not operate for almost two hours”.

While I briefly dealt with the first point in my column last week, it might be helpful to explain more fully why section 46(1) of the Constitution has no application to a situation where 58 elected MK members boycott the sitting.

It is pivotal to understand that section 46 reflects a compromise between negotiating parties in the Constitutional Assembly who wanted to keep the size of the NA at 400, and others who wanted to reduce the size of the NA. For example, the IFP proposed to keep the size of the NA at 400 for 10 years, then to reduce it to 170 members, the Democratic Party proposed a 300-member NA, the ANC wanted to keep the size to 400, while the Freedom Front preferred an NA with anything between 350 and 400 members.

The parties compromised by eventually agreeing that the legislature would determine the actual size of the NA, but that it could not make it smaller that 350 and not larger than 400 members. Section 46(1) thus states that the NA would “consists of no fewer than 350 and no more than 400 women and men elected as members”, while section 46(2) delegates the power to determine the actual size to the legislature by requiring that an Act of Parliament should “provide a formula for determining the number of members” of the NA. This requirement has been given effect to by section 114 of the Electoral Act, read with Schedule 3 of the Act, which provides a formula that fixes the size of the NA at 400.

The only way the size of the NA can be changed is by amending these provisions of the Electoral Act. Section 46(1) will only become constitutionally relevant if the NA amended these provision of the Electoral Act to either reduce the size of the NA to less than 350 or to increase the size to over 400. Such an amendment would be unconstitutional as it would be in breach of section 46(1) and (2).

A decision by more than 50 MPs not to be sworn in does not amend the provisions of the Electoral Act that fixes the size of the NA at 400. MK’s reliance on section 46(1) (and its failure to read the section in conjunction with section 46(2) as well as the relevant provisions of the Electoral Act) is therefore fundamentally misplaced. The fact that section 46(1) makes clear that the NA consists of 400 women and men elected (not sworn in) as members is another nail in the coffin of this, quite frankly, bizarre and constitutionally untenable claim.

MK’s second argument is also stillborn. Section 55 of the Electoral Act allows any interested party to lodge an objection “that is material to the determination of the final result of the election” with the IEC. If the party is dissatisfied with the way in which the IEC dealt with the objection it can appeal to the Electoral Court. But section 55(7) of the Electoral Act makes clear that the “result of an election is not suspended pending” a decision of the Electoral Court on any such appeal.

MK’s application attempts to dodge this provision by claiming that their application is not an appeal, but rather an attack on the IEC decision to prematurely and irrationally declare the elections free and when it had a further three days to do so. This places form over substance, and ignores the obligation imposed on the IEC by section 190(1)(c) of the Constitution to declare the results of those elections within the prescribed period (seven days) and “that is as short as reasonably possible”.

To make things worse, the application does not contain a single piece of evidence that would support a claim that irregularities material to the determination of the final result of the election had occurred. This is made clear in the application, which claims that while “the applicant is in possession of a large and growing body of evidence to support the abovementioned instances of material irregularities and/or vote rigging, no useful purpose will be served including such information herein at this stage”.

I have no doubt that if one looked carefully, one would find at least some evidence of irregularities in the tabulation of results from some polling stations. But for any case to be made that the election was not free and fair, one would have to show that these irregularities were material and thus that it would have affected the final results. So far, no such evidence has come to light. But worse, MK has made no effort to follow the prescribed channels to raise any objections about alleged irregularities.

A party who believes that material irregularities occurred in the election cannot skip the prescribed process by running to the Constitutional Court, when the Act requires it to first lodge an objection with the IEC, and if it is not satisfied with the IEC’s response, to then lodge an appeal with the Electoral Court.

By running directly to the Constitutional Court, and with a clearly hopeless application to boot, MK is abusing the court process and should be visited by a punitive cost order.

One would normally assume that the leaders of a political party would be aware that their case has no legal merit. But judging from remarks made by former president Jacob Zuma in an interview with Eyewitness NewsAssociate Politics Editor Tshidi Madia last Thursday,  (when he wrongly claimed that 350 members must be present for the NA to have a quorum) it is not clear that Zuma is receiving sound legal advice.

If he is receiving sound legal advice, it raises questions about the intended purpose of the current application. If it is not to secure a legal victory, it must surely be yet another attempt to get back at Chief Justice Raymond Zondo for insisting that he told his side of the story before the State Capture commission, to sow distrust in the Constitutional Court, and to delegitimise the democratic system of government. One wonders how the 58 MK members elected to the Assembly might feel about this.

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