MK party’s ConCourt bid to interdict Parly unlikely to succeed – Expert

A constitutional law expert said the uMkhonto weSizwe (MK) party’s urgent application at the Constitutional Court (ConCourt) to interdict Parliament from convening the sitting of both houses has “little chance” of success.

Former president Jacob Zuma’s MK party filed the urgent application at the apex court on Tuesday.

The MK party is seeking direct access to the ConCourt which it argued in papers had “exclusive jurisdiction” to decide on its two-part application to interdict Parliament’s first sitting from going ahead on Friday including an attempt to overturn the outcome of the national and provincial elections.

In the court papers, Zuma’s party claims “hundreds of thousands of votes” were stolen from it during the national and provincial election, but told the apex court it won’t provide its “large and growing body of evidence at this stage.”

In his founding affidavit, MK party secretary-general Sihle Ngubane claims the elections were not “free and fair”.

The MK party’s legal action follows their ongoing grievances regarding the election results.

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Party bypassed the Electoral Court

Council for the Advancement of the South African Constitution (Casac) executive secretary Lawson Naidoo told The Citizen the MK party’s “urgent” application at the apex court will not succeed.

“They bypassed the Electoral Court and gone directly on an urgent basis to the Constitutional Court. I would suggest that the prospects of success are extremely slim. The Constitutional Court is not designed to hear matters on an urgent basis.

“We have urgent courts in all of the high courts across the country and those are the courts best equipped to deal with matters of an urgent nature. So I would expect that the Constitutional Court would summarily dismiss this application on the basis of lack of urgency. And secondly, that it does not engage the exclusive jurisdiction of the Constitutional Court that there were other avenues open to the MK  party to pursue this matter,” Naidoo said.

Naidoo said Zuma’s party is asking the court to make a “far-reaching” decision on its application which is to interdict the National Assembly from bringing about its constitutionally mandated business.

“The Constitution clearly says that once an election result is declared, the National Assembly must be convened within a period of 14 days to swear in the newly elected members and to conduct the elections for the speaker, president, and deputy speaker.

“So, without providing a shred of evidence for any, for the vast array of allegations that they make about electoral irregularities and vote rigging, the court is in no position to grant the order that is being requested.”

Where is the evidence?

Naidoo said  there was a genuine route that the MK party could’ve taken.

“The longer that they delay in producing any of the evidence that they claim to have regarding the so-called irregularities, the greater the suspicion grows that they actually don’t have that evidence because surely if they had it, they would have presented at least some of it to the court to substantiate their arguments and make the court think twice about whether to grant the application for an interdict or not.

“Now, they presented the court with absolutely nothing except a flimsy legal argument dressed up as their interpretation of Section 46 of the Constitution about the composition of the National Assembly, which is an argument that is wholly incorrect in law. That’s the only legal basis that they brought the application,” Naidoo said.

“So this is clearly a case of political grandstanding that they and their lawyer ought to know that there are no prospects of success and one would assume that in dealing with this application, the court will let both the applicant and its legal team know that they’re really wasting the court’s time with this,” Naidoo added.

MK party’s interpretation of the law

In its court papers, the MK party said the National Assembly cannot be properly constituted unless there are at least 350 members of Parliament present to form a quorum – as prescribed in Section 46 of the Constitution.

Parliament, which has constituted a National Assembly for six administrations before, has indicated that  it does not agree with the MK party’s interpretation of the law.

Zuma’s party has 58 seats in the National Assembly.

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