BCP loses application to amend declaration in EVM case
Lebogang Mosikare | Friday November 30, 2018 14:08
When dismissing the party’s application yesterday, Justice Lot Moroka stated that the application came late, adding that allowing the BCP application to succeed would be tantamount to allowing court processes to be abused with impunity.
Moroka also stated that the other reason for not allowing the opposition party’s application to succeed was that it was introducing new things (Electoral Amendment Act of 2016 is not consistent with the Electronic Communications and Transactions Act of 2014). “The application was brought after all pleadings have been closed,” said Moroka.
Moroka adjourned the matter to February 22, 2019 for the parties in the matter to deal with preliminary issues. The respondents in the BCP application are the Attorney General (AG), Chairperson of the Independent Electoral Commission (IEC) and the Secretary to the IEC respectively.
Amongst a myriad of reasons advanced by the BCP for its abhorrence of the EVMs is that the use of the electronic machines is unconstitutional.
Furthermore, the party argues that the computer-controlled machines may be manipulated via software by the device manufacturer to produce a particular outcome that is not compatible with the choice of the voter.
The BCP partly says in its papers: “… For instance it is possible for faulty software to allot certain share of the votes cast to a certain party regardless of the election decision of the respective voter or for total votes cast to be divided among the parties standing for election according to a set proportion.”
The purpose of the application was to seek the following reliefs: amendment of the plaintiff’s declaration by the inclusion of claim 3 to read as follows; the plaintiff repeats paragraphs 1 to 14,15 of its amended declaration dated September 7, 201 and that the plaintiff avers that EVMs as fully described in the Electronic Amendment Act of 2016 and its usage constitute transaction in terms of the Electronic Transaction Act of 2014. The BCP goes further and avers that the EVMs and their usage as defined are not in compliance with part ii, iii, iv, vi and viii of the Electronic Communications Act.
“The plaintiff therefore avers that the EVMs and their usage contravenes the Electronic Communications and Transaction Act being the legislation that regulates electronic communication and or transactions. The BCP also asks the court to grant it an order setting aside the use of and or intended use of the Electronic Evidence Act or alternatively setting aside such portions of the Electoral Act as identified at paragraph 14,1 to 14,15 of the amended declaration.
On the other hand, the AG opposed the application primarily on four grounds namely: that there is a need for statutory notice to effect the amendment; the pleadings have been closed; the amendment was done in bad faith in that the Acts of Parliament ran pari passu.