Pansy Tlakula’s lawyers say her departure may derail elections

2014-04-24 14:08

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Removing embattled Independent Electoral Commission (IEC) chairperson Pansy Tlakula from office barely two weeks before the general elections would place the work of the commission in jeopardy and could “derail” the outcome of the elections, her lawyers have told the Electoral Court.

This is despite assurances given by other commissioners to political parties that the elections would not be jeopardised if Tlakula were to be removed from her seat.

In a letter Tlakula wrote to the court on Tuesday, she contends the application by five political parties – the United Democratic Movement, the African Christian Democratic Party, the Congress of the People, Agang SA and the Economic Freedom Fighters – for the Electoral Court to remove her from her position ahead of the elections is “misconceived” since she believes her office is “independent”.

Tlakula has maintained a sturdy silence since the publication of the damning report into her conduct related to a R320 million lease, which was awarded to a company which is 20% owned by a company in which she is co-director with her business partner ANC MP Thaba Mufamadi.

The parties want the court to urgently investigate what they deem to be grounds for her removal because her failure to inform the commission about the business relationship was a conflict of interest, which amounted to “misconduct”.

They want the court to recommend her removal to the National Assembly, which will then form a committee to investigate the matter further and decide whether she should be removed.

But Tlakula has argued if she were to be temporarily removed from her job, as demanded by the political parties, the commission would not be able to fulfil its obligations.

She has argued that if any other political party were to lodge objections to the election results in her absence, there is a strong possibility that the four remaining commissioners would reach a “deadlock” and therefore place the work of the IEC in jeopardy.

Tlakula’s lawyers also contend the court should not entertain the matter before the elections, arguing there is no “urgency” to the case, which can be heard after the May 7 polls.

Despite two damning reports by two institutions, the office of Public Protector Thuli Madonsela and a forensic probe by PwC, which was sanctioned by the Treasury, Tlakula believes there are no grounds for her removal or for the matter to be heard by the Electoral Court on an urgent basis.

She believes the application should not be dealt with as a matter of urgency because “the Public Protector’s report upon which the application is based was released on August 26 2013”.

“The forensic investigation report, compiled by PwC, was published on or about December 14 2013 and widely reported on in the media soon thereafter. Significantly, the applicants have waited until the eleventh hour – barely two weeks before the national and provincial elections are due to be held – before launching this application.

“The urgency relied upon by the applicants is clearly self-created.”

Tlakula, who is also challenging the outcome of Madonsela’s report in the high court, said commissioners were independent because their tenure was a matter regulated by section 194 of the Constitution.

“This, we submit, goes to the core of the independence of the office of a commissioner, which cannot be terminated under circumstances of urgency of the kind proposed by the applicants,” the letter reads.

Her lawyers also contend that the ultimatum given to Tlakula by the political parties – that she should vacate her position or face legal action – “cannot offer justification for the lateness of their application”.

A lawyer representing the political parties said it was strange Tlakula chose to write a letter to the court rather than follow the normal procedure of filing her replying affidavit to challenge the application.

Tlakula said the Electoral Court was only “empowered to make a recommendation to the National Assembly concerning the removal from office of a commissioner, but only after the Electoral Court has investigated an allegation of misconduct, incapacity or incompetence against the commissioner concerned”.

In their application, the parties argued that Tlakula should have recused herself from all tender processes but instead she “countermanded” the awarding of the original lease contract and started a new and “improper” tender bidding process, which benefited Mufamadi.

Tlakula’s lawyers have also written to Madonsela, asking her to postpone their legal battle until after the elections.

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