EFFSC challenges presidential elections at High Court: Is there a fourth presidential candidate?

Susanna Anbu, Kayla Thomas and Leah Rees

On 25 October, PDBY received an anonymous tip that the Constitutional Tribunal (Student Court of UP) was in the process of drafting a binding order to reinstate an applicant’s name on the presidential ballot list for the Student Representative Council (SRC) elections. The Tribunal, in a 24 October hearing, declared that the Panel of appointed judges found that the applicant, Sipiwe Tato Ntiyantiya, “satisfies the eligibility requirements” to run in “the UP 2020 SRC Elections as a candidate for the Office of the SRC President”. The Tribunal drafted a provisional order that the Independent Electoral Commission (IEC) “restore the Applicant”’s name to the “Ballot for the UP 2020 SRC Elections” and ensure she is listed in “the same form and manner as any other so listed candidate”.

“Sipiwe Tato Ntiyantiya, “satisfies the eligibility requirements” to run in “the UP 2020 SRC Elections as a candidate for the Office of the SRC President”.”

The Tribunal only has binding jurisdiction over students and student structures (S35(1), CSG) but prepared the provisional order on the basis of their interpretation of a letter sent by Professor Themba Mosia, Vice-Principal: Student Life, dated 14 October. The letter refers to section 34(8) of the Constitution for Student Governance which ascertains that the “The Constitutional Tribunal and individual members of the Tribunal have the additional powers and functions conferred upon it by the Executive of the University”. This was interpreted by the Tribunal to confer the necessary power, “preliminarily”, and was interpreted as “amount[ing] to a statutory instrument under section 34(8) of the CSG”, empowering the Tribunal to “make just and equitable orders” that are binding on the IEC and Independent Monitoring Body (IMB). The IMB is an independent body which ensures the elections are fair, over which Mr David Scholtz is chairperson, as appointed by Dr Matete Madiba, the Director of Student Affairs. 

Dr Madiba contacted the Tribunal on the evening of 25 October, via an email to the Chief Justice, and “assert[ed] several legal conclusions and positions” (Stated in a reply by the Tribunal to Dr Madiba’s email). Dr Madiba’s email claimed that the Tribunal’s provisional decision was based on a “wrong interpretation” of Prof. Mosia’s letter, and that it did not grant the necessary jurisdiction to the Tribunal over the IEC and IMB. Prof. Mosia explains that his 14 October letter directed Ntiyantiya to the Tribunal before they had “delivered an order of dismissal based on the non-viability of the matter”. He says that he later “referred [Ntiyantiya] to [Dr Madiba] who is empowered by the CSG to appoint a fit and proper person to look into the appeal and make pronouncements”, as this is the procedure through which Tribunal decisions can be set aside. The Tribunal, in reference to Dr Madiba’s email, also cites S35(4) of the CSG which empowers her to appoint a reviewer for a Tribunal decision, and explains that her email is “legally improper” as it is not in the DSA’s prerogative to influence a judgement before it is handed down, aside from the procedure set out in the CSG. Dr Madiba said that “to assume that [her] email had to follow the procedure of appointing a reviewer […] [is a] (mis)understanding” and “is extremely misguided”, as the “assumption that [her] power in relation to the Tribunal limited to the CSG is misguided” [sic].

Ntiyantiya echoed the Tribunal’s declaration of irrefutable proof of her chairpersonship of the Economic Freedom Fighters Student Command of the University of Pretoria (EFFSCUP), which warranted her reinstatement on the ballot list

The applicant, Ntiyantiya, had her urgent appeal for the nomination for Presidency heard by the Tribunal on 24 October. Ntiyantiya echoed the Tribunal’s declaration of irrefutable proof of her chairpersonship of the Economic Freedom Fighters Student Command of the University of Pretoria (EFFSCUP), which warranted her reinstatement on the ballot list. The IEC, and the IMB upon appeal, held that Ntiyantiya was not eligible to run as on DSA/SRC records, she was not listed as chairperson. Ntiyantiya asserts that the “the final judgment shows diligence, impartiality and independence of the Constitutional Tribunal” stating that she “applauds the Constitutional Tribunal for standing up to the intimidation that undermines the recourse of court and for delivering a judgment that seeks to serve impartiality and independence of justice”. 

Ntiyantiya also claims that the IEC did not act fairly when informing her that they had found her ineligible to run for SRC president. She cites Annexure A, S6 of the CSG, that “the IEC must immediately inform the candidate of the shortcoming and request the candidate to correct [her] submission within 24 (twenty-four) hours after receipt of notification from the IEC”. Ntiyantiya states that the IEC did not contact her to inform her of the irregularities and did not follow protocol as stipulated. She ascertains that she “was simply eliminated and received notice of [her] elimination a few minutes before the release of the final candidates list”. The Tribunal, in the 26 October judgement, states that the IEC and IMB “did not discharge their duties with the required diligence”, and that the IEC “did not treat [Ntiyantiya] in an administratively procedurally fair manner”. The IEC did not respond despite numerous attempts made by PDBY to obtain comment. PDBY asked Dr Madiba about the allegations of the IEC and IMB’s unfair conduct and she answered that the “obsession with [the IEC’s] supposed wrongdoing shifts the focus of the case and where the actual contestation lies”. Dr Madiba “emphasi[ses]” that “the IEC and IMB followed rules and procedures to the letter”. 

IMB chairperson, David Scholtz, confirmed in emails to the IMB that they have “decided that it was [Ntiyantiya’s] responsibility that the […] SRC correctly recorded that [she] [was] the chairperson”. Prof. Mosia recommended that Ntiyantiya reform her application as it is his view that the proceedings “should have been against the structure infringing on [her] right to contest in the elections” (in this case, the SRC) – he adds that relief from this reformulation would not be binding. 

PDBY asked Dr Madiba how Ntiyantiya can pursue binding relief beyond the IEC and IMB’s decision that she is not eligible to run in the SRC elections. Dr Madiba said that “[Ntiyantiya] has already received a report from an independent professional and the issue is officially disposed of”.

Ntiyantiya confirms that an urgent review application of the matter is due to be heard in the Pretoria High Court. Ntiyantiya asserts that “the university clearly failed students when it comes to taking recourse against the IEC, even the independent investigator that was appointed, it was appointed by the DSA”. She says that it is “particularly the office of the DSA” that “continuously undermines and intimidates students who are trying to find recourse in this matter, [it] needs to be fixed and we believe that the court of law is more fit and proper to look into this matter”. Ntiyantiya says that “this is just to show that students should have a solution when faced with a problem and that the university cannot act mightier than the law when it comes to such instances”.

This is a developing story, and should PDBY learn of more information, it will be published on pdby.co.za and on social media at @PDBYMedia. 

PDBY is the official student newspaper of the University of Pretoria.
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