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- [00:18]
A
Hello and welcome to another episode of the AIAC podcast. My name is William Shorkey and you are listening to Africa is a country's destination for for analysis of current affairs and global events from an African and leftist perspective. If you missed the last episode, it was a feature of the Nigerian Scam. And in that episode the hosts looked at the antics surrounding Aliko Dangote's new crude oil refinery in Lagos, Nigeria, which many had hoped would help the country with its ongoing energy crisis. Spoiler alert. It did not. If you'd like to know why, make sure you listen to that episode, which you can find wherever you listen to your podcasts. Google, Spotify, Apple, and don't forget to like subscribe and follow. On this episode we are featuring Just Us Under a Tree, which is a South African podcast on law and politics. And in this edition, Tanvir Jiwa and Dan Mafora host sir civil and political rights expert Muduli Rakivane to unpack the threats to challenge the outcome of South Africa's May 29 elections, they ask the all important question, what does it mean to have free and fair elections? A question of reverence not only in South Africa, but other parts of the continent. Neighboring Mozambique, for example, has just had an election which is being challenged by the opposition. Dan and Mudzuli, who are on the ground on election day, share their observations of various irregularities as the three discuss whether they were indeed so egregious as to vitiate the entire elections, as has been alleged on many occasions. A reminder of who your hosts are. Tanvir is a constitutional law and property law lecturer and Dan is a lawyer in Cape Town and the author of the fantastic book Capture in the Court published by Tafelberg in 2023. So here without further ado are Dan and Tanvir. Enjoy.
- [02:37]
B
Hi everyone. Welcome back to our Just Us Under a Tree episode. This one's an exclusive where we're focusing on the aftermath of the elections. So we've covered quite a few episodes actually over the elections over the past few years. A few of them were obviously focused on court cases either before the elections. Actually most of them were before the elections, but we thought this one we would look actually at a specific theme which would be how much can the judiciary interfere with the elections. And this episode will be a little bit different from the other episodes than we've had. Hopefully it will be more organized. That's the goal for today and that we have a theme to begin with, but we also have a very special guest who I will introduce last I will start off with our still special host, Dan Mafora. Hello.
- [03:33]
C
Hello. Hello. It's good to be back. Yeah. Hi, everyone. Hello, Africa as a country listeners, thank you so much for tuning in to another episode of Just Us Under a Tree.
- [03:47]
B
Nice. And we also have our very special guest, Mudzuli Rakivane. Mudzuli is currently a consultant, but I think she'll tell you more what she does.
- [03:58]
D
Yes. Hi, everyone. It's very nice to be here. I feel like I've arrived, guys. Like, this is the pinnacle of constitutionalism before actually being honest with each other. The Concord Whites. What's that? Anyway, true. Thanks for having me, guys. Yeah, glad to be here. Like Tanvia said, my name is Munia Ra. I'm currently working as a consultant. Working really with. Yeah. Work to do with democracy capacitation, working a little bit with the legislature at the moment and trying to help parties find their way in the post electoral life and hopefully getting them to. Yeah. Do the things that they think they're going to do on the campaign trail. Yeah. My background is in law. I for my sins, I studied law at Single Bosch University. I met Tanvir at the Constitutional Court after I dabbled in litigation and then wormed my way into the wild west of politics. And now I'm here. Yeah.
- [04:55]
B
Great. And as you can all tell, obviously Muduli is way more than qualified to be here. Probably actually overqualified to be on this hard. But we are very honored to have her. And yes, obviously this is not an exclusive ex Concord Clark podcast. You're more than welcome to be here even if you haven't clocked.
- [05:15]
D
But giving a theme, it's giving a.
- [05:18]
B
But it just so happened that's how Moods and I actually met. And funny enough, it leads us to the next discussion which we wanted to discuss in terms of the elections. Right. Whenever we talk about how much can the judiciary interfere with elections, there's always this thought of looking at whether the judiciary can talk about whether elections are free and fair. Right. But Shibi, when you talk about interference, when you talk about what the judiciary can say in terms of elections, it starts off before elections. And you can see that in the New Nation case, we're not going to go into details about it. We have a whole episode about it. And Mut and I clocked at the time when New Nation were that the court. Actually it's the first episode I came on the just us pod 4. I came as a guest with Dan to talk about it. And we had discussed whether obviously the electoral act was Unconstitutional because it didn't allow independent candidates to run or hold office. And Dan will probably have something to say about that and I will just let him have the mic just now. But again to note that I strongly disagree with the majority. I do not think the Electoral act was unconstitutional. I think it was constitutional. But there's a whole episode where Dan and I just go on about it for an hour. You can listen to it, we will link it in the description. I've always wanted to say that, but Dan.
- [06:42]
C
Yeah, so actually this is a really good point to start and something to keep in mind, I think, when we discuss generally the question of constitutional review. And I was talking to an advocate for who I won't mention for reasons of not wanting to be sued. And we were discussing the New Nation movement judgment and I said to him, look, I don't think. And this was. Sorry, let me just sketch the context. So this was in the context of the doctrine of in objective constitutional invalidity. Right. The idea that if something is contrary to the Constitution, well, inconsistent with the Constitution, then it is unconstitutional from the day that it came into force. And he said to me, is that really true in the context of the Electoral Act? Right, in the context of the New Nation Movement case. And the reason he asked that question is because that has implications for every election that has been run under the Electoral Act. And I said to him, look, what I find very interesting is this tendency that the court has now adopted of declaring silences, legislative silences, unconstitutional. So they say the Electoral act is silent on this question, therefore it is unconstitutional. And I think that's a very interesting phenomenon that we need to really think about because it has huge implications. I think this was also the case in another recent judgment to do with spousal maintenance, something along those lines. And I'm not going to say any more than that, but to say that we need to seriously consider this question of is it unconstitutional because it's silent or is that silence a legislative choice which is within Parliaments power to do so? You leave something unregulated. You chosen to do that. Is that unconstitutional? I think it throws up a really interesting puzzle that the nerds will nerd out about in future.
- [09:03]
B
Yeah. And just maybe to simplify it a little bit more on the legislative silence. It's really the idea that Justice Matlanga tried to push with the never again idea with the right to vote, which we'll explore a lot when it comes to this episode. The fact that the right to vote should be held seemingly so much higher than every other right. Even though we've been told many times again, there's no hierarchy of right in the Constitution. Every constitution has seemingly the same weight, but never again principle applies to the right to vote. And we are told that we need to read that right as broadly as possible. And based on this interpretation being as broad as possible, the then there is no space for legislative silence, as Dan would put it. Right. Because of this broad interpretation, you need to then allow for every right under the sun that can be put into that interpretation. Right. You need to then every entitlement. I should say that this right may allow you to have the legislature may thus allow for or rather should take into account, which is a very bold thing to say. Right. And I'm saying it now because again, not to rehash New Nation and maybe we'll just end it at that. Just to say that this is one challenge independent candidates running. You can have so many right. Interpolation of this very right to vote to mean so many different things under this very broad interpretation of the right to vote. It just so happened that New Nation came in with the independent candidate challenge. Right. But under the same Justice Madlanga logic, with the interpretation being so broad, you can effectively force the legislature to interpret it so broadly so as to basically have to redo the electoral act again. And maybe that's where we'll bring in moods as well. Right. We were discussing now the ways in which the judiciary have has effectively interfered with the elections even before elections. Right. And when we say interfered, we obviously mean somewhat constitutionally. It is within its bounds to do that. And Mudsu, you were on the grounds you'll maybe tell us more a bit how you were on the ground and in what capacity, but you've seen more or less the mess that New Nation left behind it. And obviously this has a biased undertone, but hopefully Mudzuli will be able to shed some lights why we are so biased about what we're calling it a mess. How did it look moods on the ground when they were trying to change that act.
- [11:37]
D
Yeah. Not to bring us back into the dark hall of New Nation, but I think even the beginning premise of what New Nation was not really actually fundamentally about the inclusion of independent candidates. It was very much a backdoor way of trying to push a measure of electoral reform. And the substance of which obviously the court was not going to get involved in terms of, yeah, we should move to X system and we should move to Y system. But I think the thinking the litigation in general was if you can actually get the court to then pronounce some independent candidates. That's one win in and of itself. But surely this will then lead to the second consequence which we are seeking, which the can't, the court can't deliver, which is about actually moving towards like a new sort of legislative scheme altogether, mainly some form of constituency based system. Because again, there is basically no country in the world that has independent candidates incorporated into a purely PR system that functions. I think a lot of the mess that we see from New Nation is that actually it was like a very much back way, like way of trying to squeeze in and then the consequences that Parliament was like, great, I'm going to give you what you want in terms of independent candidates, but I'm going to go absolutely no further in terms of any legislative reform which makes the independent candidate system make sense. So a lot of what we're seeing is just like a scheme of inconsistencies which just can't be married. And now basically what the IEC and Parliament in a lot of ways were forced to do was now we've got this independent canon being forced on us and we're not trying to do a whole they just let a reform thing. So we're going to make little twists and turns as much as possible to just make this constitutional. Whether or not it's functional, whether or not it makes sense, that's not our problem. We'll see that later. But we're just actually trying to get this to pass Constitutional Master so that we can run a free and fair election and we'll see the knock on consequences later. And as you described it, it was incredibly messy on a lot of fronts. Number one, just from a practical perspective, it introduced a third ballot. And the introduction of that third ballot has again layers of issues. Number one, just practically on election day, the confusion and the chaos that third ballot caused was just like terrible. And then you have to ask yourself a question. If that many people are uneducated on the system itself and there's that level of confusion in terms of what the ballot means and what they're actually voting for, does that actually have an impediment on whether or not this relation was free and fair?
- [14:24]
C
So, right, right.
- [14:25]
D
I provided the balance and the IEC can say, but we provided the ballots because that was the constitutional now requirement that we had. And so it allowed for everyone to vote and it allowed people to vote for independent candidates. But if you fundamentally as a voter, and I'm not talking about deep things, I'm talking about the everyday voter, do you Fundamentally understand, understand that when you put your cross on the third ballot, what that means and what the consequences of that are. And I'm not confident that the majority of South Africans understood it. And then that obviously has a consequence on results. That's just the reality. So what we saw, which I'm sure Dan can also speak to, but one of the massive issues that we saw in the counting, so this is now the voting days done, lots of confusion over there. So lots of things that you can challenge at that level, terms of the practical acting or the practical exercise of voting on third ballot. But now the consequence is, or the knock on effect is what do you see then in the patterns of results that you get? So again, splitting our votes is not a new phenomena. People typically do that at local government election. So you typically will never see election results that are mirrored in terms of ballot number one and ballot number two, because people typically will differ with their ballots. I want to vote for X party because where they govern well and my local municipality, but this little razzmatazz kind of character at this level, so I'll vote there. So no problems with that. But where the IEC took a massive beating at the National Results Operations center is that you had parties with, with slips. Now in terms of results which would say one vote at your national ballot and then 700 votes on your regional ballot and then 100 votes at your provincial ballot, that discrepancy will never make sense. And this is the issue that a lot of parties, almost all parties rallied around to say we fundamentally have a problem with what your results are displaying because of the discrepancies across the ballots. It just doesn't make any sense. So if there were a free and fair election mess that you were to look at because of the new introduction of the system, it was number one, the confusion on the ground with the ballots and then number two, the consequences of what our results looked like. Because one, either people didn't understand what they were voting for, so their votings was just helter skelter. But also number two, the IEC's capacity to accurately record across three different ballots was wholly inconsistent. And then it was basically up to political parties to have to solve for X. So sorry, I don't want to ramble on too long, but let me just use a practical example so people understand what you have after elections, that you have a National Results Operations Center, I think that's what it's called. And essentially it's this massive conferencing style venue and every political party is invited and you all have your little stalls, which can get extremely juicy, but nonetheless, and you have a little stall and you have a computer, and that computer is basically like the livestock of live results. And essentially what you're supposed to do as a political party, if you have the financial, technical, all sorts of capacity to do so, is that you pocket that computer. And now, if I know that I'm super popular in this wardrobe, and I have a sense that I should be getting at least 2, 300 votes over there, I will specifically now go on the computer and quickly go see what the IEC has uploaded in terms of that ward's results. Now, I'm seeing, though I only got two votes on the national ballot over here. That seems out of kilter to what our efforts were on the ground. What that system enables us to do is then not just look at the results and say, it actually enables us to then go look at the slips that itself from the voting stations. So now I can actually go look and I can count for myself and I can see, no, there's a discrepancy between what was recorded, not just my feelings, and what the results are, but there's a discrepancy between the slip that came from the voting station and what's now recorded on the system itself. And that was where the fundamental breakdown in this election was when it came to the recording of numbers, is that the IEC just did not have the capacity and the systems also. Sounds great in theory. How many times those computers were offline and crashed were a lot. So what ended up happening, and I think it was actually an action made by the pa, if I'm not wrong. But they basically then had all of the people representing the different parties come together and write a letter to the commissioners, which we all signed. And basically that's when the commissioners gave political parties an extension for them to be able to go and do the work of finding the discrepancies themselves, because the IEC is not going to pick up on it and they don't have people sit. So the IEC doesn't have a mechanism at that stage where someone is physically, practically going in and checking every slip against the results. It's up to political parties to do that themselves. So what you then saw is a lot of parties then being like, hey, he has an inconsistency of 200 votes here, has an inconsistency of 300 words. He has a inconsistency of 500 words. And the IC's response, which is within their purview, is to say, fine, no problem, we'll fix it. But is this a material impact on results? And the question more often than not is no, and that's fine. But for me, I think a question we need to ask ourselves is, sure, maybe it's not going to convert one seat into another seat, but is that the parameter that we define as free and fair?
- [20:15]
B
Absolutely. Moods. You've touched on so many important things here. Right. And many concerns that I think a lot of people already had, but obviously didn't know the intricate details. There was so much that you touched on that I didn't know. And I was already concerned by the. Whether the elections were free and fair, mostly on just what I either saw on Twitter or what I saw on tv. Right. So on things that were being reported. And just a few things that I wanted to point out because I think a lot of what you said said we're still going to flesh out and, but just very quickly, obviously the rounding theme of what you're saying is, do we, did we have free and fair elections? This is a very genuine concern arising from a lot of the irregularities that you've pointed out. And of course, we are mindful that this to ask or to point fingers at free and fair elections and then to ask whether it's. They were free and fair. It is a very serious allegation to make, of course, but that's the whole point of the pod, is to ask these questions and to take it seriously and ask precisely if it is the case that these allegations are real, what can the court do about it? But before we even get there, before we get to the constitutional test of what do you do if you do think the elections weren't free and fair, etc. Etc. Let's look at the allegations that you've put forward. You've obviously mentioned a lot of the things that the political parties could or couldn't do in order to help the iec, in order maybe in terms of what they expected. But this also sounds like a lot of things that only either an experienced party or a party with money could do. Right. So big parties. Right. So I cannot imagine a small party or even an independent candidate having the capacity and resources to go there and actually canvass the area the way you've pointed out. And in addition to that, I want to point out the fact, and I think maybe I'll bring in Dan here, the fact that the IEC, the Independent Electoral Commission, as everyone knows, a Chapter 9 institution, has been severely underfunded for the past few years. So, Dan, I don't know if you want to Talk a little bit about that severe underfunding and under resourcing and now having to cope with that cut in budget, with now all of these changes. And again, very serious allegations that obviously at the same time the IEC had to step up, but we have to be fair to them as well. Step up with What?
- [22:53]
C
No, you're 100% right. The running theme in Mazuni's explanation there was that the IEC simply didn't have the capacity to. And capacity is not just about how many bodies can you have in a voting station, right, or in a particular province on election day. It's about your planning, it's about, it's about your kind of public education, right, which we saw very little of. And I kept saying we have a completely new electoral system from the last election and there was basically no public education. All the kind of education about the three ballots, how votes are counted, what all of this means was on social media. And how many people have access to social media. Not all of it was in all official languages. I don't know how far they went with broadcast media or radio or print media for that matter. And so there's the question of was the IEC just set up to fail? Right. And not to be, to put on a, a tinfoil hat, but was that meant to foreshadow this, this reluctance to actually engage in genuine electoral reform? Right. So we just pull back and say, oh, the last elections were such a mess, so we can't experiment with anything new because we just know the IEC can't handle it. Which is not true. But what I found very interesting was that on in the days following the election, I think one of the commissioners gave an interview or something where he said, look, we tried to deliver an election as best as we could within our means. And within hours, treasury obviously alluding to the fact that budgets were cut. And treasury came out with a statement to say, oh, we didn't cut any budget. They had a surplus from a non election year that we just didn't allow to roll over. And it's okay, but you're talking about the same thing. How do you not give the IEC money in an election year? And for me, that's what it boils down to. At the voting station that I was at, I thought, oh, we have such a great turn. But no, it is just that they didn't have enough staff on hand. There were more party agents than were IEC officials inside the station. And that's why queues were moving so slowly. And it's a really. And there was of course, that, that technical glitch with the voting management devices very early on in the day that apparently in some parts of the country just people just stopped voting. Right. The IEC was like, there's nothing we can do until these, these machines come back online. We can't facilitate any voting, which is not true because there are, there is provision for manual voting, manual capturing of voters on the voters roll, which is what I went through because the VMDs at our station were not working. But then there's the question of training. A lot of the people that work at these stations are volunteers for that day. They're not IEC officials. They're not employed by the IEC on a permanent basis. Right. These are people, either students or unemployed youth, unemployed people around in the locale who just want to make a little bit of money and don't mind doing the patriotic duty of helping us vote. But there is a very serious, serious question about funding and how this fiscal consolidation. No one wants to say austerity, but this austerity, how this austerity is hurting us. It's hurting every single important constitutional institution in the country, not to mention the courts. And that's another can of worms that we won't go to now. But there is a reality that the job of delivering an election is not easy, but it is aggravated by this lack of funding that the IEC has experienced, especially in a voting year like this year.
- [27:20]
B
Yeah, Dan, you touched on another thing that I wanted to talk about a little bit more. Some of the irregularities that we saw. That also maybe we are letting the IEC off too easily by just saying that it's a budget thing, because there are some things, like I saw some polling stations, were already, some voting stations rather, were closed at 2pm and they were turning voters back. And things like that, which has nothing to do with budget, has nothing to do with training, with information. And if I'm not mistaken, I don't want to be accused of misinformation, so correct me if I'm wrong. Anyone? Ballot boxes missing. I saw on Twitter as well, obviously collected afterwards again. But do you get where I'm going with this? Lots of irregularities that should really not have happened. And at a level where, honestly turning voters back, where there's already voter apathy on such a level is quite something. Right, Dan, I recall you were on a watchdog group, if I'm not mistaken, and mud. I'm sure you also saw quite a few things on voting day itself before counting that much. I don't know if you want to go first to tell us a few things that you saw as well in terms of irregularities.
- [28:34]
D
Yeah. So on the point that you made about things like voting stations closing early and people being turned away, I think that problem is twofold. One, it actually is a massive training issue. So like Dan was saying, you basically have this influx of people coming into your organization for a couple of days and they're expected to be able to like basically uphold the rules, the values of the iec and the reality is that the training was just wholly inadequate. Yeah, so that is a massive issue because on the commissioners can't be on the ground at every voting station. So they are really relying on people to be trained to understand these are the rules, these are the conditions that must be the fold on the ground. But then it's also a massive voter problem because if voters don't know what their rights are and the rules are, then they're unable to also hold people to account. So it just literally takes one person knowing that you, even if you haven't seen a voter come in for the three hours, you can't close the station. The station must only close at 9pm or these people already in the line at 9pm or whatever the designated time of that election is, they can stay in the line, but if nobody knows that, then we're all going to be like, oh cool, I can go home. So that again is a, it's a failure on two levels to be able to train your people internally or volunteers, but it's also a failure on voter education. So voters don't know their rights, they cannot exercise their rights. It's that simple. Then on the sort of more saucy things of like ballot boxes missing, that's a phenomena across most elections, like these things happen. It's not a, this is not a consequence of this particular election or even the IEC's incapacities, particular incapacities in this election. And one thing I will give the IEC is that there are a lot of processes which are supposed to be invoked on the day to keep from litigation. So if we're talking about the sort of intersect between when can the courts intervene and at what level, the idea of having this chapter nine and all of the sub aspects to that and regulations and protocols is that you want to build as many of those things into the processes of the IEC in order to avoid the courts having to intervene. So there's at least 10 steps before we get to court. And again, the failings that we see over here is that when you don't capacitate the IEC property properly, financially is that they are unable to then properly execute the 10 steps before litigation. So some of this flurry of like litigation that we're seeing in terms of these inconsistencies is not that we don't have procedures and protocols in order for those to solve themselves either on the day itself or in the days leading after that. It's because you see a breakdown and it's classic. What we're seeing across the. This is what happens, this is what state capture does to institutions, is that if you're aiming to break down the institutions from the inside, then you then now place force people to go to court and then you're able to build this agenda that, ah, the court's interfering in things they shouldn't be interfering in. But we're not actually spending enough time and being like, the IEC has procedures, why were they unable to effectively execute the procedures on the day to avoid anyone being able to come to court? And you're going to always have court litigation. That's the people are always going to go to court for vibes. But you should be able to look at an application in two minutes and be like, no, this is not relevant. Because I know for a fact that the IEC takes 20 steps before it gets to this point. So what we're seeing is this derogation of our chapter nines is then leading to this like over litigation, over use of the courts. And we should actually start at point number one and not point number two at the courts necessarily.
- [32:21]
B
Yeah, I'm so glad you pointed that out because I think you mentioned that almost 10 step process before we go to court. And I think this is the perfect time to transition to exactly that. When can you go to court? So now we've mentioned all of these irregularities and I'm so glad you pointed out moods that a lot of the irregularities that I mentioned are actually things that do happen over elections. Right. So there is. That is very much needed for us to also be reminded of that obviously not all elections are going to be perfect. So we need to figure out when do we meet the threshold of elections not being free and fair. So obviously both Moods and Dan have pointed out to a lot of irregularities. Now we get to the point of applying the law and trying to find out when exactly do we tip over the threshold where actually we are looking at free elections that are not free and fair. Right. So in very typical fashion, obviously the right that leads us to political rights is obviously section 19. Right. And the whole idea here is that every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution. And that's Section 9, Section 19, Subsection 2 of the Constitution. Right. So the right to free and fair elections. And the idea is obviously that the IEC is supposed to put into place all of these measures to facilitate those free and fair elections. So importantly, something that Moods already mentioned earlier in the podcast is that the irregularities do happen. And in fact, the Electoral act already admits to that. Right? So if you look at section 110 of the Electoral act, it talks about the effect of certain irregularities and it talks about exactly when do these irregularities have to be of such effect that actually you need to probably set aside the election. And we're looking now at section 1102, so 1102 which says an election may not be set aside because of a mistake in the conduct of that election or a failure to comply with this act unless the mistake or failure materially affected the result of the election. So Mut already talked about this. It's looking now at the operational terms of materially affected. What does material affect, materially affected mean? And the reason I'm talking about this is because we're precisely at the point of when exactly can the judiciary interfere now with elections? At what point can the judiciary say the elections were not free and fair precisely based on these allegations? So obviously we've, throughout this election, especially this year, we've had a lot of court cases. You've looked at the Zuma's candidacy for the MK, and then we also looked at the DA's case to get honorary consulates open abroad. There was obviously judicial intervention. That's how we are categorizing judicial intervention. Right. So something as simple as the DA's case to get consulates open abroad would obviously be a strategic move. Right? The DA knows that it has bigger constituencies abroad, so opening more consulates would help them get more votes according to their strategies. Right. So that would be an involvement of the court. But interestingly, we've seen a lot of political parties come forward and talking about possibly launching applications to say the elections were not free and fair. Now, I thought that was incredibly fascinating to look at which political parties were doing so straight after the elections, and especially now because obviously for the first time ever, the ANC didn't get a majority. And as the GNU was going around as we were trying to figure out who exactly would form part of this party and the MK got quite a lot of votes, it was still interesting that actually it was the MK that was making the Most, I want to say litigation threats. Right. And the litigation threats were also interesting because I think if I'm not mistaken, the one of the reasons I had heard was that they had assumed. I'm going to use the word assumed in a very generous way. They had assumed they would get much more votes than they did. I'm not going to use the other words because I, I think. Okay, Dan will go for it.
- [36:47]
C
Yeah. I think just before we get into the specifics, what I've always found interesting and which has not been discussed in the media coverage of the MK parties kind of lit litigation following the election is this very specific claim that they were robbed of 9.3 million votes. That's a very specific number. It's a very specific number and it's a number that I think, and I'm open to correction. Yeah. I can't remember what the final tally was, but the two largest parties, the ANC and the da, their votes combined end up at eight point something million if I'm not mistaken. But the MK party claims, for a party that was about what, six, seven months old at the time of the election that they had 9.3 million votes. That's more than the two biggest parties combined. I find that to be an extraordinary claim. Like it's not extraordinary in the sense that it is ludicrous and you can just ignore it, but it's a very specific number. It's like, why did you think you were going to get 9.3 million votes? I think that's a very interesting question. I'm just going to put it out there. Those of us who have a certain proclivity or affinity rather for the conspiratorial may wish to take it further, but I'm just putting it out there. I thought it was very weird. I thought it was very weird that they were sticking by this claim of 9.3 million votes. And especially considering the geographic spread of the number of votes that they received being very limited and very concentrated in certain areas that one would have assumed because that's where they did most of campaigning. But even if you were to take just that geographic areas to come up with 9.3 million votes would be quite a feat for one political party to do so. Yes. Just to throw it out there. I'm just asking questions. I'm just asking questions. Those who have, who are curious enough will go ahead and find out.
- [39:14]
D
So I think on the, on the MK's numbers and their desires and maybe their prophetic vision of life, I think where they got screwed over is the lack of actually understanding that every person that votes for you is not going to vote for you on three ballots. I think that tripped them up because they didn't see a consistent or they didn't see the same numbers reflect across the three ballots. And I think there was misunderstanding there. I also think they didn't understand that the regional and the national ballots didn't all create one singular pot that was like all leading to Parliament in the same exact. I think that's also where they got dribble because I think for them they were thinking, oh, if we get regional and national cumulatively together, we're going to get X amount of seats. And those two parts. Parts are very separate and also the threshold for those two parts are very separate as well. So, yeah, I think a lot of their disappointment, some of it was delusional, but other parts of it was just a lack of understanding of the mathematics of the two different parts, specifically for the National Assembly. The second part of, I think what also tripped them up, and this is really not even like me slandering, this is, I think, I feel like common understanding of everyone that MK doesn't actually have. They're not a party, guys. There's no, like, internal function operation, like it's vibes and character that's pretty much sustaining this thing. Which is why we seeing the implosions that we see, they were a great example of a party that didn't necessarily have the infrastructure to do all of the things at the time that they needed to. So they were very aware that they were profitable 100%. They were aware that there are problems and discrepancies in the counting at a voting station level. But I think part of where the problems were, and you see it in the litigation, because if I were acting for mk, maybe the angle that they should have approached this was to say ten weeks after the election, after the deadlines of when you can complain are done, we've now done a deep dive of every single voting station where maybe we thought we would have the pool. And cumulatively we have come to the figure of 200,000 votes where there's just an inconsistency between the number in the voting station and the number over here. And maybe try to say on that basis, if this is a sample that we were able to pull up, we have, I feel like maybe enough sort of evidence or reason for at least a course to look at that to say, here's a specimen that we've given you and this is the materiality of the issues that they are surely this is widespread across everywhere and then maybe have led to a freeing phase. So I don't think they used the back inside knowledge or inside like level of access that they could have used in terms of the systems available to them as a political party to actually underpin this with some form of evidence. So going to a court with saying I feel like I should have and I didn't, versus I feel like I shouldn't, I didn't. And here's a sample of the quite a massive discrepancy. This is reason for us enough to look into this entire election. Maybe that would have been a slightly. Would they have gotten to 9.3? No. But would they maybe have been able to cast enough doubt over this? Maybe. And I think they were probably one of the parties who could have maybe made one of the bigger cases for that.
- [42:51]
B
Yeah. That's interesting because both you and MK are focusing on a number, right? And by that, and the reason I'm pointing it out is because when we look at whether an election is free and fair, what do we look at? Are we actually focusing on the number? Are we looking at, and this is, I'm asking, a very almost philosophical debate, right? Do we care about what the outcome would have been or do we care about whether it appears free and fair? And obviously the Electoral act says materially affected the outcome. Right. The result of the election, which obviously points us to a number, which is why obviously Mood's natural inclination is to go towards a number. But the reason I'm pointing it out then is because we actually only really have one case about free and fair election. Right. In terms of case law, we have the calm case, a little bit of clope as well. But the calm case is the case we focus on in terms of free and fair election. And the reason I bring it up is because as it is the only test that we have for free and fair election, it's our go to. And the first thing it says is it's not a magic number test. And that always gets to me because I'm like. But you say materially affected the result. What does that sound like if not a number? Right, because you are now giving the Electoral Commission the discretion to determine whether the irregularities that happened in front of them will materially affect the outcome, I. E. They need to look at their irregularities and judge against the outcome. So I'm guessing, and please, Moods done interfere and correct me if I'm wrong, but I'm guessing if the allegations of irregularities comes from a pretty big party who can show that there would be a big sway in the numbers. If the irregularities were fixed or if they didn't happen, then that would have a material effect on the outcome, right? So that's the kind of thing that we're looking at, which obviously means a number has to change, right? And the reason I'm pointing this out is thus we are not looking at whether the public believes it's a free and fair election. We're not looking at perceptions, right? And the reason I'm pointing this out is obviously it's metaphorically looking at a recusal test, for example, right? Like, it mustn't just look, it mustn't just be fair, it must look like it's fair, it must look like it's unbiased. And in this case there were many allegations. So clearly it didn't look like a free and fair elections. You got a lot of political parties coming forward and saying, actually we might even go to court over this. That's how bad this is. But here we have calm saying, no, it's not a magic number, and goes forward, it even Sundays we have four key elements for elections to be considered free and fair. And I'm going to list them out. So the four key elements that the case points out, Kham points out that every person who is entitled to vote should, if possible, be registered to do so and able to vote. And I want us to do this exercise like we take the factors and we take the irregularities that we looked at and we see whether they met, right? So every person who is entitled to vote should, if possible, be registered to do so, enabled to vote. Let's assume registration happened, right? But let's assume that the voting stations that did close at 2 then didn't allow the person to come back and vote. So already, number one, every person who is registered and entitled to vote wasn't able to vote, okay? No one who's not entitled to vote should be permitted to do fair. If you're not entitled to vote, you shouldn't be permitted to do so. Obviously, that unless we go and check the ballot and see whether people who weren't entitled to vote voted, we wouldn't know about that. So we can eliminate that. Where elections have a territorial component, example local government elections, the registration of voters must take place so that only voters that are ordinarily resident in the relevant ward are registered and permitted to vote there. Correct me if I'm wrong, but there was a new requirement for this year's elections that you could only vote where you were registered. Right.
- [47:05]
D
In my humble opinion, you can't not have a constituency system at a national level, but introduce constraints of a constituency system. That for me was the most bogus of introductions. That number one, just from an education perspective, I know they tried, but a lot of people didn't know this. And as a consequence, if you got somewhere and you didn't have an exemption, one of your, I think it's, yeah, one of your ballots was taken away from you. That is a massive issue. I think also they should have maybe staggered this so maybe the first election we tried to get as many people to do that, but we still give them the third ballot nonetheless. And then we try to phase this in. But to wake up one day, a few months before this is also not something they told us two years ago, a couple of months before. Do a piss poor job at education and then deny people the rights to be able to get all three ballots is bizarre when it's also not consequential to the outcome of the election. So this is not me voting in a ward that I don't live in at local government election. This is me being in the province that I live in and choosing, going to the school on my left instead of my school on the right. And that I think is a massive issue. I'm surprised, I'm very surprised that people didn't litigate or have 100% because what outside of practicalities of we need to make sure we have enough balance. Why?
- [48:32]
B
Why?
- [48:33]
D
Because this was you trying to import things of a system that you've rejected to make life easy for you, but without actually even this whole provincial thing you've made from. You've actually for all intents and purposes made provinces a constituency, but also not so what I was stranding the line over here between systems and then choosing what works for us operationally at the expense of people's rights to be able to vote helter skelter.
- [49:00]
C
Yeah. And I think this is particularly difficult in for those parties like the ANC which campaigns a lot in rural areas outside of major urban centers and which has its members traveling on election week. Right. So you'll find you're from kzn, you'll find yourself in the Northwest canvassing for this party. And in that case you can only have the one ballot because you are out of your province and you are out of the ward that you were registered in. And that to me just sounds so ridiculous, like it sounds outrageous to say, no, we're not going to give you even the second ballot to be like here's your regional ballot to vote for, even if you're not in that province. And the fact that this procedure was, like Mazuri said, announced like weeks before, people were like, oh, have you put in your section whatever application? And you're like, what is that? And it's not clear what this involves. And in some cases you don't even know whether you're going to be in it near your voting station on voting day. And if you like, let's say you lived in the city center like I do, and let's say you were campaigning in Paul or whatever, you're still in the same province, but you are not allowed to exercise the same right that the people in the community that you're in are able to exercise just because you're not close to your voting station. And it just shows you again, that. Which is something that we said, civil society said. And I'll make disclaimers later, but. But what civil society said is the system is unworkable. It doesn't make any sense. It's going to make voting really hard. And what we saw are exactly the consequences of what we were talking about.
- [50:59]
B
Also while both of you were speaking. And practicalities aside, which is the most important thing with voting practicalities, because you again, we need to defeat voter apathy. Right? So at least make the things simple. But practicalities aside, rationality, legal rationality, lowest threshold in the world, zero. I couldn't find a single note of rationality as you guys were speaking. I'm not even asking for reasonableness, let alone proportionality. No, I'm asking for. The bar is on the floor. Mere rationality, a connection between the means and the purpose. Nothing.
- [51:35]
D
Nothing.
- [51:36]
B
So that's where we are right now. But at least on, on the third level, where elections have a territorial component, if you're. You can only vote if you're registered in that place. It sounds like they took that very seriously. Too seriously, in fact. Problematic for different reasons.
- [51:52]
D
Can I also add a point to that territorial issue? And I think it's also something, I think political parties and civil society, I think there was so much fight that was going on that there was almost like by the time it was closer to the end, I felt like the fight was just because I'll use a perfect example of this territorial mess, which actually was a big red flag that if people were switched on, I feel should have made a bigger noise about. So you know, that little smaller requirement of you need X amount of signatures before you. So we were making so much noise about the signature the number of the signature. The biggest gag was not in the number. The biggest gag was actually in the process of that. So.
- [52:34]
C
Right, right.
- [52:35]
B
I'm sorry, very clearly for our listeners, I'm assuming you mean the, the number for the independent candidates. Is that what you're referring to?
- [52:42]
D
So the new, basically the new law was that if you did not have a seat in parliament at the time of the election or the provincial legislature, if you do not have a seat and you were unrepresented, then you had to then go and canvas a certain amount of stuff, signatures and ID numbers, not to be registered as a party, but also to participate. So the previous, once you registered, you are entitled to participate if you can produce a deposit, etc. Now there was an added layer that said you must register, submit those signatures and then you must also get a new threshold to participate. And then that has its own dynamics. So I'm going to use the provinces of Gauteng, Limpopo and the Northwest to demonstrate this point. And I think if we're talking about the hit of the anc, this I think is where the issues actually were. I am a member of X political party and now I'm on the ground there and I'm hustling for my party's political signatures. So I'm talking to people, I'm like, hey Dan, how are you? Do you want to sign this? It doesn't mean you're going to vote for us be a member of party. It just says that you believe in this, our democratic right to be able to run as a participate as a party. I met Dan and Santon. Dan, please, no problem. Here's my ID number, here's my signature. Gucci Mane. Dan is actually registered to vote in the Northwest. But Dan, like most people in the Northwest Limpopo are in the weekdays in residing in Gauteng because that's where the work opportunities are. I now go and I'm like, yes, I've just got 100 signatures of people in Gauteng. I go into them in the system. The system of the IEC would not accept Dan's signature towards my participation because I canvassed him in Gauteng and he is registered to vote in the Northwest.
- [54:35]
B
How are you supposed to know that? How was he supposed to still remember that? Was he supposed to change it?
- [54:43]
D
Besides knowing and asking? Dan has a registered voter.
- [54:49]
B
Why does it matter?
- [54:50]
D
Yeah, why does it matter?
- [54:52]
C
Right, right, exactly.
- [54:53]
D
For a national and provincial election, why does it matter what province? I canvassed him for a signature When I'm going to run As a party across the spectrum, especially off the flag. And when I tell you the rates, I think the hit rates were sometimes 10, 15%. So you might be thinking, oh, 10,000 signatures is easy, but in reality you're having to canvas at a higher percentage because you're going to get rejections out of people giving you fake IDs and blah, blah, blah. But the biggest block of your rejection is going to be that you can to someone in a province that they live in on Monday, Tuesday, Wednesday, Thursday, Friday, but are registered to vote in another province. And then you transpose that to the realities of election day. Is that election goes on a Wednesday, right?
- [55:40]
B
Yes.
- [55:41]
C
Yeah.
- [55:42]
D
Now, please tell me why the average South African who has left their home province to go seek work opportunities in Gauteng is going to be there Tuesday, get the money somehow to drive back to the Northeast or KZN, and then drive back after voting at 9pm that day because your operations and your systems were so slow in order to be at work at 8am on a Thursday. If that is not a form of voter suppression, I don't know what is.
- [56:12]
B
But also what's fascinating to me is that obviously the purpose of the signatures, as you mentioned, is not to show that these people are going to vote for you. Is this to show that these people believe in your right to hold office or to run for. Why do they have to be registered in the particular province that you would be running to believe in that? Again, rationality is zero.
- [56:33]
C
Yeah. But this goes back to what Muzuri was saying, right? That IEC systems are designed to make the IEC's work easier. Right. But Parliament is supposed to design legislation that works. And so what they do in a lot of them that we saw this in the parliamentary process, which Mutually and I were quite closely involved with, is that there's a lot of difference to the iec, which is fine because it is the body that manages elections, but it has its own interests at heart. Right? They're trying to say we need to make it easy for us to run an election and make sure that we are not attacked as being, as being captured or whatever. However, they don't factor into that position. And Parliament does not think about this deeply enough to say what are the actual political democratic effects of what we're doing? Because as you just said, this is exactly the playbook of voter suppression. Right? When you hear about voter suppression in the us, when you hear about voter suppression in the uk, this is exactly what they do. They create all of these seemingly small administrative changes that have A huge impact on who gets to vote and where. And like, why should it matter? Like you've just said, why should it matter that I'm registered in a different province at the time that Mozilli encounters me and says, hey, do you. Have you heard about this party? We won this. And that we would like for you to sign up and give us some form of legitimacy so we can meet these thresholds. I'm a registered voter. Surely I have an interest in having as many political parties in a multi party system participating in an election. But because the iec, because of its expertise and its interest in making sure that its systems are efficient, which they didn't succeed, let's be honest. But in making sure that its systems are efficient, Parliament just defers to the interest of this body, but that are diametrically opposed to what they should be thinking about when they're designing an electoral system.
- [58:48]
B
This is perfect because it actually leads us to two things that you both have pointed out. One, to the final point of Come, which we were still on the fourth element, which is that Section 19 3B of the Constitution doesn't only protect the act of voting and outcome of elections, but also the right to participate in elections as a candidate and to seek public office. And both moods and Dan pointed out the fact that like clearly the signature requirement, having a whole territorial aspect to it, was not facilitating the right to participate in elections as candidate and seeking public office. It was repressing that. Which means on a calm taste level, we're already hitting a 2 over 4 right. 50% elections, probably not very free and fair. Right. So that's even on the calm level. But on the second level. Now this, what Dan pointed out, which is the interests of the IEC has always fascinated me because section 110 of the Electoral act bothers me because of the discretion the IEC holds in finding what materially affects the outcome of the elections in order to dismiss the fairness, or rather to set aside elections. Right, so what do I mean by that? Section 110, 110, subsection 2 of the Electoral act, as I mentioned before, gives the power. So it doesn't give the. Who does it give the power to? Sorry, does it give it to the iec? An election may not be set aside because of a mistake. Is that so? I'm guessing this is the Electoral Court that must judge this. Right. But before that, the IEC must obviously have some level of judgment before this gets taken to the Electoral Court.
- [60:37]
D
They are right.
- [60:40]
B
So they declare the election free and fair. So obviously they must be make the first pronouncement as to whether the mistake materially affects the result of the election. And I want to touch up on that, because obviously that's a huge discretion to give an institution that has an interest in hoping the elections are free and fair. Right, because it was the one that just carried out the bloody elections.
- [61:06]
D
Yeah.
- [61:07]
B
So again, back to the point of, as Dan and Woods just mentioned, what the IEC does is obviously makes it make its own life easier. So it has its own interest at heart. And you would obviously, in naturally, in a democracy, you would hope that its interests are aligned with the interest of the people. But naturally, we all know that's not quite how life pans out. So this then takes us to the space of how does this work? Yes, Dan.
- [61:36]
C
So my gripe actually isn't with the iec. The IEC as an institution has to secure itself, and I am not against that at all. What I'm against is Parliament abdicating its duty, right? So the IEC comes back and says, hey, why don't we slot in this requirement to say that if you're not in your province, you need to notify the IEC so that they can make provision for you to vote when you don't even know when you're going to be in your province or not. You don't even know when election day is, by the way, when this law is being made. Right. For Parliament simply to accept that and not say, hang on, won't that make voting difficult for people who may be traveling on that day? That very simple question is simply just wished away. And they're just like, no, the IEC knows best. No, the IEC knows best about how to run an election. Do you know best about how to ensure that every voter who is entitled to vote can vote, which is the point of the right in section 19, right. That you are entitled as an adult citizen to engage in the politics of this country through, but not limited to voting, and does the legislation enable that? But what we see is this complete abdication. And again, this touches on an interesting question. I'm going to segue now to US Law, but this interesting question about deferring to independent agencies, right? So we know about the question of Chevron difference in the US where for a long time the US Supreme Court had said, where a statute is not clear, as here, about what is material and what is what is not, courts should defer to the institution or to the agency, right? So in this case, if the IEC dismisses an objection or a complaint of a political party as not materially affecting the outcome of an election, should it have that kind of power? And I think that's a very interesting question. Again, keeping this idea back at the back of our minds of this is an institution that is designed to be very self interested, right, to ensure that it performs its job as best as it can. But the idea that Parliament itself just says we'll do whatever the IEC says, that's not how lawmaking should work, that's not how things are supposed to be. And I have a different view on whether or not some of the complaints are material. But I do think it is quite problematic that it is the same people who get to declare the election free and fair who have to decide whether or not irregularities are material in the first place. Right? So you go there, they're like not material, dismissed and then you can go to the electoral court. But it's seems to me like it's a design problem that you can't have the same people who want to be seen as having done a good job having run an election, deciding on the materiality of the seriousness of the irregularities that exist. And yeah, that's all that I wanted to say. I don't think it's a slight on the iec. I just think we have a design problem about who plays what where. And the fact that Parliament, and I'm going all out Parliament really dropped the ball here.
- [65:25]
D
So on Parliament dropping the ball. And this is, I think where the, the crossroads of politics and lawmaking meet each other. I genuinely think that the ANC didn't think they would run into problems. And so I think there was a slight apathy from the lawmakers of the ANC in these committees that we're fine. So I think we might see a shift in concentration, in awareness, in advocacy, in activism on this from the anc, because I think then this might have been a little bit of a switch the lights on because I think they have, these parties have like months of sort of time where they spend debriefing the consequences of elections. The stuff we see on the rural around the personalities. But people are sitting, number crunching. And I think once the number crunching happens, the connections between the electoral system and the numbers will start to find each other. And I think that the people that were sleeping in the Home Affairs Committee are going to suddenly wake up and I think we're going to see more serious lawmaking and less apathy from the political parties. Because now people are like, oh snap, this is not just some little station anymore. This is like the daily bread is starting to get affected by this electoral. And then I think maybe a conversation about Dan's second point about can I be a player and a referee in this free and fee issue is the weights, the impact, the necessity, the role that these watchdogs play. So we had a massive delegation from the African Union, a part of the processes, like massive delegation. There were old and new watchdogs who. These organizations are pumped with a lot of money and are recruiting a lot of volunteers and are seen to be playing a role in this idea of free and fair election. And I found it very interesting in terms of the timing of the declarations of the free and fair elections by these ones. I know there was a lot of controversy around batong. Not that I think it was African Union who had actually made a declaration before the IEC was like, what's poppin, y'? All? And also, on what basis does a watchdog make a declaration of? Is it. Do you have watchdogs which are specifically looking at one aspect? Because that might.
- [67:59]
B
Yeah.
- [68:00]
D
Because there isn't a watchdog who is integrated enough into the operations of the IEC who are able to actually make a declaration holistically. We should just. It's not a nice thing to say, but we should just accept that you're not in enough or long enough to be able to say holistically on every front. So maybe it's actually about us organizing better. So this watchdog, your job is to make sure that this. And then collectively we're able to take our results across the board and say, you know, there's a massive failing over here, and. And this is all we concentrated and this is all we did, and we were able to see that there's a problem over here. So before the rest of us run around saying free and fair, we should actually organistically look at this. And then maybe there's actually legislative reform to do on that aspect to say, what threshold of external sort of like watchdogs. And what is the weight of it? Because it's all very ceremonious. And maybe there's actually something to do that the weight of what they say actually matters in terms of the kind of ability to be able to just wake up one day and say, gucci Mane, we free and fair. Have a nice press conference. And everyone. Because also it's. Yeah. And that goes into a whole conversation about the funding of watchdogs and. Yeah. And what they don't say and why they say it. So I think there is quite a little bit of reform that we can do to make watchdogs just more effective. Because we're pumping money and time and effort into them. But what's the actual impact that you have? And how can you maybe solve for Dan's problem of there being one sole of sort of overseer of this that actually matters?
- [69:28]
B
Yeah. Just to clarify, by watchdogs, are we talking about Chapter 9 institutions, IEC, or are we talking about AU, AU watchdogs. We're talking about outside.
- [69:38]
D
Yeah, yeah. Your African Union, your third party institutions.
- [69:44]
B
That are not involved. Absolutely. I thought that was interesting because I was trying to stir the pot, obviously, naturally, as I do with the whole. The IEC having discretionary on calling it free and fair. Because at the same, on, at the same time, on the other side of the coin, one can say they are putting into place the measures that are supposed to have the elections be free and fair. So who better of an arbiter of a free and fair elections than the people putting into place those measures? Right. The whole point of Chapter nine institutions, the way they are budgeted, the way they are guarded, who they report to, look at the public particular. But that's a episode for another day. But yeah, let's not do that. But yeah, the whole point of Chapter nine institutions is obviously to be independent. Right? Naturally. And that's how they are supposed to be able to have the kind of discretion to allow them to make the kind of call that say that elections are free and fair. So maybe just on that, obviously, as Mzuli mentioned, the role of watchdogs as well. So third party watchdogs are obviously extremely interesting. Looking at if institutionally we're seeing that there is a problem bringing in parallel mechanisms to ensure that this process is properly done and also just bringing it back home with the question of if we had decided that there was a material effect right, to the outcome, when would the courts then decide that elections are not free and fair? To. To just wrap this whole thing up, do we ever foresee an election being declared not free, unfair in, in this country? And the reason I put it out there is to have a debate about it, because we've now have the contest, we've discussed that two out of four measures on were not met in this election. But also just to give a better idea to our listeners, the contest involves not just looking at the factors. It also tells you to have an overall value judgment. Right. You need to look at the election and look at where they took place on a quote, unquote level playing field and whether the candidates were quote, unquote, seriously hampered in their participation in the electoral process. So I invite you as listeners to take that into account. And everything Moods and Dan have said, whether you think candidates were seriously hampered in their participation. So this kind of brings us to the conversation of do elections need to appear free and fair? And the reason we ask this question is because you need to believe the elections are free and fair for your right to vote to be legitimate and credible to you. That's the whole value of democracy, right? That's the whole value of the rule of law. And that is also at the same time juxtaposed with what are the obstacles that a court faces when it's being asked to order for a re election, right? What things does the court have to consider? What are the practicalities? And I will throw some things out there that I will first ask Dan to consider. And then Moods is one, we already touched on it, the lack of resources of the iec. Should that be a consideration to the court whether one can even carry out a whole election again? But also two, courts are very reluctant to ever order re elections for multiple reasons. But if you look at all the other cases, like your New National Party, your August, a lot of the cases around the court will always kind of hold back and say, look. Which is also why court will always say we'll hear the case before elections, unless just to make sure, because we do not want this to affect the validity of elections after. Because the last thing we want is for you to come and question the validity of the elections. And part of that is because the look of a court ordering a reelection on the principle of separation of powers is not good at all, right? It looks very bad to have the judiciary interfere. And that also plays back into the whole rule book of again, what does it look like? What does it mean for the rule of law and the credibility? So, Dan, what do you think? When can court actually order or when would they likely order a re election?
- [74:15]
C
So this is interesting. It's a question that I've thought about and especially in the context of recent elections on the African continent, right? We've seen courts in Malawi and Zambia, in Ghana, I think set aside election results. However, what is distinct about those three case studies is that these are presidential elections, right? So that I think is easier to judge. Say that you are the incumbent, President Muzuli is running against you. You try your best to make it impossible, right? Through capturing the electoral commission or putting undue influence, try make Mozuli's election run impossible. Try put up as many obstacles as you can, right? And this is what happened in these three cases. Is that the incumbent presidents use their power, use their access and influence to influence the election in it against their opponent. Basically in our system, it's very difficult. Right. I think and this my, My sense has always been that it is going to be very rare that a court is going to say the election, the national and provincial elections across the board, across the entire country, we're not free, not fair, and then we're going to set them aside. It is very localized. And this I think is why section 110 is written in the way it is to say, yes, maybe there were serious irregularities in this particular district, in this particular voting station. But does that ultimately change or does that have a material effect on the outcome of the overall election? Now that I think it. It almost seems impossible. And that I think is why, you know, besides the fact that they don't have any evidence of vote rigging, that is why the case for the MK party is so difficult to meet is that even if you do find, maybe you can find voting stations where things really went wrong and the IEC's processes did not work. But does that ultimately affect the outcome of the election? That to me seems like a very difficult, very high standard to meet and maybe with good reason. But as we now look into the future, as we look to electoral reform, as we look to a different system of voting, maybe we will start to see what or start to see how these other scenarios that have crept up in other countries would be able to come up in our system. But at this point, I think come even if it is pitched at the level of local government, I think this is exactly how a court would, would approach the question of whether or not elections were free and fair. And I think that's a very difficult standard to meet.
- [77:30]
D
Yeah, I think Dan's on the money there. Yeah. I think also the level of appetite at provincial and national elections and at local government elections are two different things. So like we saw with calm, I think you're more likely because it's also so localized and it's easier to like the discrepancy of 50 votes at that stage is material, so it's much easier.
- [77:54]
C
Exactly.
- [77:55]
D
Quantify almost like the impacts are like far more tangible because is my ward councillor on the line. So I think at the local government election, I suspect we're going to see a lot more of that as the playing field becomes even more and more contentious and you have even more nefarious or active players in this. So I think local government elections is actually going to be something really to look out for in terms of the challenges at that level. Because also the inconsistency, again, the inconsistencies that we're seeing here in a lot of sort of statisticians and mathematicians and electoral, in this sort of electoral space will tell you that nothing that we're seeing here is like out of the ordinary. These things have on that local government, in fact, local government elections, another episode for another day. Messy the system. Yeah, there's. What we're seeing is not new, but I think there's a new awareness to it. So we're going to see a lot more, I think litigation at that level, and I think we're actually going to see probably more overturns happen at that level, but at provincial and national election just because of the way our system is designed. And also what's on the line, whether or not people want to admit it, whether or not judges want to admit it, it is like a whole new daunting task to be asked to do that because now you are the face of this thing. And I also think there's some wisdom to that because once you declare an election not free and fair once, what does it do for the next election? So I do think that there is an element of you, yeah, you. The perception you might be correct on this first one, like in terms of the hard evidence, but then you're probably setting yourself up for failure for the next one just on perception low. So I think, yeah, we probably not going to see that happen. We are probably going to see more reforms happen in terms of the acts and the statutes before we see anything of that nature happen at that level.
- [79:51]
B
Yeah. And I think especially given the populist trend in South Africa against counter majoritarianism in the courts, the last thing you probably want is a court to declare an election not free and unfair. But I want to tie this episode up on this one quote, actually in calm by Wallace AJ as he was then. And the quote was, it is insufficient for the court to say that it has a doubt or a feeling of disquiet or is uncomfortable about the freeness and fairness of the election. It must be satisfied on all the evidence placed before it that there are real, not speculative or imaginary grounds for concluding that they were not free and fair. And I think that's a really good way to end the podcast because we did have really, we did speak a lot of irregularities. But I also think this podcast was a lot of feeling of disquiet and uncomfortable around the freedom and fairness of the election. Right. But in the end, what we've established with the list is that there's a very high threshold to meet and I'm afraid counsel on the podcast have not been afraid has not been able to meet threshold. So elections as far as we're concerned so far are free and fair.
- [81:10]
C
We are officially declaring the 2024 national and Professor provincial elections free and fair.
- [81:17]
B
You are all welcome.
- [81:19]
C
This is the decision that everyone has been waiting for since we voted on 29 May.
- [81:25]
B
You are welcome and thank you so much, Muli, for joining us. This was an absolute blast and we hope to have you some other time. Maybe not to discuss local elections because that doesn't sound as exciting, but maybe, who knows, maybe to some people.
- [81:41]
C
Hey, okay, I'm sorry.
- [81:43]
B
It is exciting for Dan, so maybe Dan will host you or. But anyway, thank you so much to all our listeners for being back and yeah, we hope you've enjoyed the episode and we'll see you or you'll hear us in the next one. Bye.
- [81:57]
C
Bye, friends.
- [82:06]
B
Okay.