Litigation: IEC pleads with court not to delay election

In a submission to the Electoral Court, the IEC said it had no capacity to rectify the omission of ActionSA’s name from the ballot sheet for the 1 November local government elections, notes Legalbrief. The IEC has urged the court not to rule on the matter, but request Herman Mashaba’s party to allow the municipal elections to go ahead, and rather lodge a ex post facto application should the omission of the name prove to have affected the party in the polls. ‘The commission also lacks the capacity to comply with such and order (that compels it to reprint ward ballot paper to use stickers or stamps to add the omitted ActionSA name),’ said Advocate Michael Bishop for the IEC.

He said the special vote was set to start on 30 October, hence the ballot papers would have to be at the voting stations by 29 October. This meant that any reprinting of the ballot papers would prove impossible. Bishop also added that the remedy proposed by ActionSA’s counsel, Advocate Adila Hassim, of using stickers, as was the case when the IFP joined the 1994 elections at the 11th hour, was not possible for two reasons. ‘The sticker makes the party stand out and would give ActionSA an unfair advantage,’ said Bishop. He also argued that, while Hassim was saying that a service provider has been identified who could supply stamps with the name of ActionSA, and which could be added to all the ballot papers within six days, the timeframes were not clear about whether they included weekends. Even if they did, there would still be no guarantee that deadlines would be met, considering that parties also needed to factor in the time it would take the court to make a ruling on the matter.

Asked by the judge how it could be proven after the fact that ActionSA was affected, given that some individuals may be deterred from voting, Bishop suggested that exit polls could be held to understand whether there was confusion and to what extent this had affected ActionSA, reports News24. ‘If then the court finds that the party was affected, then it could give ActionSA an effective remedy which it cannot give now, because that would affect other parties that have not joined this application, which is the re-running of the election. The court will declare the relevant wards and the relevant municipality results to be set aside and require by-elections to be held. And that is the framework contemplated in the Municipal Act,’ he said. Judgment was reserved, but Judge Boissie Mbha promised to return a verdict as soon as reasonably possible. Mbha added that to achieve this, the court may be compelled to issue a judgment without reasons, and only release the reasons at a later stage.

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