The African Change Movement's (ATM) legal challenge to the results of May's election is likely to fail due to the same issues raised by Jacob Zuma's Umkhonto weSizwe (MK) party, according to documents filed by the South African Electoral Commission (IEC).
ATM failed to comply with section 55 of the Electoral Law, which states that a political party seeking to contest the results of an election may do so “in respect of any aspect of the election which has a significant effect on the ultimate outcome” of the vote.
“This provision means that if a party wants to challenge the outcome, it must first file an objection,” IEC acting chief executive Walter Chevri said in his response to the committee.
The parties must comply with the time limits and procedures set out in section 55(2) of the Act, after which the Commission must decide on the objection.
Legally, it is only this decision that can be challenged on review or appeal, but Chebli said ATM has never filed a valid challenge in the form of an affidavit.
“The applicant has attempted to avoid the consequences of failing to follow the valid challenge procedure under Article 55 by disguising this challenge as a 'review' under Article 6(1) of the Electoral Tribunal Rules,” he wrote.
“However, there has been no proper review regarding the announcement of the results. The process is as above: results, challenges and appeals.”
This is exactly the same argument asserted by the IEC in its response to MK’s separate petition to the Election Tribunal seeking a court order to annul the election results and compel the president to order fresh elections within 90 days.
ATM is also seeking similar relief. In its founding affidavit, the group claims it was the “victim of miscalculation, voter fraud and voter corruption.”
ATM leader Vuyo Zungula maintained that most ATM supporters were unable to vote, saying the issues preventing them from voting were so fundamental that it showed that the first defendant, the IEC, had no capacity to conduct free and fair elections.
As in the MK case, the IEC accused ATM of failing to comply with Article 6(1) of the Electoral Tribunal Rules, which states that a political party that wants to refer the IEC's decision to review must notify the Secretariat in writing within three days.
Shelby said even if the ATM application met the requirements for vetting (which the IEC disputes), the decision the IEC is seeking to challenge – the announcement of the election results – was made on June 2nd.
The parties therefore had until June 5 to file their applications or, failing that, show just cause for the delay.
“The ATMs weren't doing either,” Shelby said.
He added that before the court could condone a delay it would have to take into account the party's prospects of success, but the investigation had yielded no results as “ATM's complaint is hopeless in practical terms”.
The party made extensive claims of fraud, voter rigging and bias by the committee but did not back them up with evidence.
Shelby added that it was clear that “Mr Zungula has no personal knowledge of the facts relating to the bias allegations he asserts in his founding affidavit.”
Despite not having any details or evidence at hand, ATM has undermined the integrity of the election without any valid reason and should be punished with a costs order, he continued.
On ATM’s claim that voters were registered in the wrong constituency, the party said it was relying solely on the affidavit of a person named Nyaniso Dzeko, who said he had no intention of submitting facts but was merely stating hearsay that a large number of voters were denied voting because their names did not appear on the voters’ roll despite being registered in a particular constituency.
“Mr Djeko's affidavit, let alone the wider allegations asserted by Mr Zungula, provides no evidence of electoral fraud.”
Shelbi said it was completely wrong for Zungula to say he “did not want to burden the court with huge amounts of paperwork” and that his claim was serious and should only be based on compelling evidence.
He denied Zungula's claims that the voters' roll was inaccurate and that the issue had not been addressed, pointing out that ATM had never challenged the voters' roll, even though political parties had 14 days to challenge it after it was published in February.
The ATM leader argued that Section 24(A) of the Election Act does not allow a voter to vote outside the district in which he is registered, but he said the provision allows for exceptions to the rule.
It is therefore simply not true that Article 24 has “created havoc”, as Zungula put it.
Shelby similarly said allegations that electronic scanners malfunctioned in “most, if not all” precincts were untrue.
He said the problem occurred in some constituencies but did not affect the accuracy of the election results, denying Zungula's claim that the equipment failure was “a deliberate act by the commission to manipulate the election results.”
In her written response, Democratic Alliance Federal Council Chairwoman Helen Zill reminded ATM that the electoral tribunal is “not a forum for making indiscriminate and sweeping allegations of fraud, rigged voting or double voting without valid grounds.”
But she said the party had not presented any evidence and had failed to prove that the elections were not free and fair.
“The purpose of this lawsuit, like the first lawsuit filed by the MK Party, appears to be to undermine the integrity of the Election Commission and cast doubt on the outcome of the 2024 elections,” she said.
In its defense in the case, the IEC said the MK Party's application was completely without merit and the only reasonable conclusion was that it had been filed with the intent to incite the public.
“The only inference that can be drawn from this approach is that these allegations were made with a view to inciting public emotion.”
The party claimed in the paper that 9.3 million votes were lost, without which it would likely have won a majority rather than the 14.5% that the polls showed.