Sparks fly in heated EVM case
Lebogang Mosikare | Thursday August 24, 2017 17:05
The epic battle pits the BCP against the AG as well as the chairperson and secretary of the Independent Electoral Commission (IEC).
Amongst other reliefs, the BCP wants all sections of the Electoral (Amendment) Act, which provide for the replacement of voting by ballot paper with EVMs, to be declared unconstitutional and struck out.
The AG, however, has applied for the BCP’s case to be dismissed before its merits are heard in court, arguing that the opposition party filed its declaration nine days over the period required. The BCP attributed the delay to the need to engage technical experts who can prove their case against the use of the EVMs.
The IEC defendants in the matter have not raised the issue of the late filing.
Defending the BCP’s late filing of declaration, attorney Gabriel Komboni prayed with the court to accept the BCP’s late filing declaration, saying that the BCP’s late filing was insufficient grounds for its application to be dismissed before the merits are heard.
Komboni said a dismissal on those grounds would not be in the interest of justice and democracy since the party has great prospects of success when the merits of the case are heard.
“We submit that the AG’s application for the BCP case to be dismissed is drastic and can only be reserved and applied in worst case scenarios of non-compliance. Extending time to give the plaintiff more time to engage an EVMs expert will bring this matter to its judicial conclusion.
The court should look at the degree of the late filing explanation and the prospects of success before dismissing this matter,” Komboni said.
He said the issue of BCP’s late filing should not delay the matter from proceeding, adding that the case has not reached a technical stage where EVM experts will be called to testify to warrant dismissal.
“The issue of the BCP engaging experts in this matter is very critical. The plaintiff’s case is that the EVMs are prone to hacking hence the need for the BCP to engage experts to help both the defendants and the court to reach a judicial conclusion,” Komboni said. He added that the AG is delaying the matter from being expeditiously heard by making an application for the matter to be dismissed on technicalities while the second and third respondents have filed notice to abide by the decision of the court.
“The authority charged with procuring the EVMs for the elections has no problem with the BCP being given more time to secure their experts. The AG is not the right authority to query that. Furthermore, contrary to what the AG has said, there is no evidence that the public is craving for the use of the EVMs. We, therefore, submit that the prejudice that the minister and the AG say they would suffer has not been demonstrated,” he said.
Komboni said the use of EVMs will deny candidates who stood for elections many opportunities like physically re-counting the votes when they query the election results.
Komboni also furnished the court with judgements in Germany and India, which he said the BCP would use to demonstrate that EVMs can be hacked should the matter reach merits arguing stage. However, Matlhogonolo Phuthego from the AG came out with guns blazing saying if the court allowed the BCP’s late filing, the move would open floodgates for other litigants to do so, rendering the penalties that the courts can sanction for non-compliance, useless.
“The appellant is saying that they are still looking for an EVMs expert. We don’t know when this case will proceed as the appellant has not even stated when they would have found an expert. Rules of the court are meant to be obeyed and not be flouted willy-nilly like the appellant is doing in this matter.”
Phuthego said that if the BCP still insists that EVMs can be hacked, it should withdraw its case and then re-launch its application when it is ready after acquiring an expert.
“The court cannot indefinitely wait for the BCP to acquire an expert. The BCP does not know when it would have acquired one, and we implore the court to dismiss the application until such a time that the BCP is ready with its expert. Not knowing when the BCP will get an expert is greatly prejudicing us to prepare our defence.
“The BCP is not even mentioning which part of the amended Electoral Act is ultra vires the constitution. The court should not allow the BCP to trivialise this issue,” Phuthego said.
At the end of the legal wrangling between the two parties, Justice Lot Moroka said the issue at hand defines the nation’s democracy since voters using electoral processes choose people who are given the power to rule the country.
Ruling on the matter will be delivered on August 31, 2017.