Illustrative image: Supporters during the uMkhonto Wesizwe (MK) party march to Durban City Hall on 1 March 2024 in Durban. (Photo: Gallo Images / Darren Stewart) | Former president Jacob Zuma addresses supporters of the MK party at Alexandra Stadium, 7 February 2024, Johannesburg. (Photo: Gallo Images / City Press / Tebogo Letsie) 
The ANC has been dealt a blow after the judgment handed over on Tuesday which set out that the registration of the MK party was lawful.
“The Independent Electoral Commission of SA’s electoral operations deputy CEO (DCEO) in registering MK complied with requirements of section 15 of the Electoral Act read with section 16 (1).
“We therefore find there is nothing unlawful about the registration of the MK by the DCEO [Masego Sheburi] on 7 September 2023. In regards to costs, costs are customarily not awarded in this court and we are not persuaded to depart from this custom,” according to Judge Leicester Adams.
Arguments around the MK party’s registration were centred on the IEC’s 4 August letter to the party from Sheburi, which said the organisation’s registration had been rejected as the required signatures it sent appeared to be fraudulent.
Read more in Daily Maverick: MK doesn’t belong to ANC, says Zuma, vows to win polls and ‘remove the evil ones’ from government
Sheburi said the party could submit a fresh application. Instead, it supplemented its original application.
However, Judge Adams explained that ANC’s claim that the supplementation of the application was not an accurate interpretation by the MK party “holds no water” adding that there was no need for the applicant to commence the process afresh.
“It is an artificial approach and implies that contrary to the approach for the consideration of the application for registration is implied for the reasons which the CEO may decline to register a political party which are set out in section 61…
“Contrary to the ANC’s submission the absence of reference to section 51 to quote ‘supplement’ in the letter does not detract that on the plain reading of the provision, the words grammar and syntax of the section lends itself to the interpretation that as long as the application in the prescribed manner and form is before the CEO, he should register the party,” he said.
The judge then mentioned that the electoral committee had demonstrated that there were other political parties which also supplemented their registration after rejections. He set out that this favours the IEC and MK party’s case.
ANC failed to justify why its late filing should be condoned
Judge Lebogang Modiba explained that a party seeking condonation must come with a full explanation and that the court considers whether the condonation will be in the interest of justice.
In this instance, she reiterated that the ANC was not granted such relief.
“Therefore in terms of rule 6 read with rule 10, it does not meet the requirements for condonation,” she said.
Modiba stated that the ANC’s explanation for filing their application after the prescribed deadline was “irrational”.
The judge then said the ANC’s decision to appeal the registration of the party because of its name and logo is not an excuse to not have timeously made its objection over the registration of the party.
Read more in Daily Maverick: MK party argues ANC failed to oppose its registration before Jacob Zuma joined
The ANC alleges that it discussed the decision on 24 November first and only was able to direct its legal representation then. The governing party then goes on to blame their delay on the timing of the decision made by the IEC.
“What renders the ANC’s decision even more irrational is that it did appeal the matter with the IEC within the prescribed period which resulted in the IEC 24 November decision. It doesn’t impugn this decision in proceedings, but the decision the DCEO took on 7 September 2023 which it became aware of on the 11th September.
“The ANC also fails to explain why it took more than one month to discuss and decide its next course of action. Failed to state when their offices closed in December 2023, ironically it instructed its attorneys in the peak of the December holiday period on 26th December 2023,” according to Judge Modiba.
Judge Modiba reiterated that the ANC’s reasoning was that they were unaware that the MK party’s initial application was rejected and therefore could not take up the matter, does not hold water.
She set out that there was no obligation on the part of the Electoral Committee to publish the rejection of any political parties.
She further went on to say that it would infringe on the MK party’s rights if they were to grant the ANC’s relief. The judge explained that it would not make sense as it is the ANC which failed to object to the application of the MK party within the allocated time while they had two opportunities to do so.
“In both, it failed to do so. Therefore it only has itself to blame for not being aware of the 4 August 2023 decision until Jan 2024. If the ANC’s relief is granted, it will be too late for them to register as a political party and contest the upcoming elections,” she said.
Jurisdiction
The courts also found that the Electoral Court lacks jurisdiction to review the Electoral Commission of SA’s decision to register the MK party.
“We therefore find that the electoral court lacks jurisdiction to review the DCEO’s 7 September 2023 decision, it only has jurisdiction to review the electoral commission’s 24 November 2023 decision which the ANC has effectively preempted as it has not reviewed it,” she said.
In its application, the ANC denied that the Electoral Court had no jurisdiction to review or inquire into a decision taken by the chief electoral officer to register a political party.
The party’s legal council argued that the Electoral Court’s powers had a wide reach in relation to electoral matters and that it was a specialist court designed to deal with such matters.
The matter regarding MK’s alleged infringement of the trademark of the ANC’s disbanded paramilitary wing, Umkhonto weSizwe, will be heard on Wednesday 27th March. DM