AFRICA UNITE CHALLENGES THE IEC IN CONSTUTIONAL COURT

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (HELD AT BRAAMFONTEIN) Case No. In the matter between: AFRICA UNITE PARTY Applicant And CHIEF ELECTORAL OFFICER OF THE INDEPENDENT ELECTORAL COMMISSION Respondent NOTICE OF MOTION KINDLY TAKE NOTICE THAT the applicant intends making the application to the above honorable court on Monday, 24th March, 2014; or as soon thereafter as the matter may be heard for an order in the following terms: 1. Condoning the applicant’s non-compliance with the form of service of process as provided for in the rules of the above honourable court and dealing with this matter on an urgent basis in terms of Rule 12 of the uniform Rules of the above honourable court. 2. Granting the applicant leave to appeal against the decision of the Electoral Commission on the 24th March,2014 under the non compliance notice to pay the substantial deposit of R200 000 to contest in the National Elections on the 7th May,2014. 3. Setting aside the decision of Judge Raulinga in the High Court in Pretoria on March 12th that all parties should pay this deposit to the Electoral Commission because it shows or guarantees “seriousness” to stand for public office. 4. 4.1 Declaring that the Africa Unite Party (AUP)is eligible to be on the list of candidates of the National Elections because it is in the public interest for it to be; and 4.2 Declare that the large deposit of R200 000 for one candidate should be waived as it infringes on this individual’s right to stand for public office according to the Bill of Rights; and thereby disenfranchises the electorate who are concerned with the issues of racially motivated violence in this country, the economy, corruption and the youth; thereby not making this election free, fair or credible for all; but dependent on the economic status of said person or party. 4.3 A review of the registration process of political parties in this country by the IEC; and how constitutional democracy can be best served according to the guidelines of the Electoral Commissions Act 1996( part 4 “ objectives”) ;so that every voice in this nation who wishes to be heard are included in our election process without fear, favour or prejudice to any. 5. Further and alternative relief. 6. Costs of this application should the respondent oppose the relief sought. TAKE NOTICE FURTHER that the founding affidavit of ROBIN DENTON leader of the AFRICA UNITE PARTY together with the attachments annexed thereto will be used in support of this application. TAKE NOTICE FURTHER that the applicant has appointed the address of his party offices as that at which it will accept service of all process in these proceedings. Dated at Johannesburg on 23rd March, _________________________________ MR.ROBIN DENTON PRESIDENT OF AFRICA UNITE PARTY (Acting for all concerned South African citizens) 117 Strand Street Crystal Park 1515 Tel: 083 586 2769 Ref. IEC Deposit To: The Registrar of the above honourable court And to: The IEC OFFICES, Chief Electoral Commissioner c/o Adv. F.D.P.Tlakula ( Chairperson),Election House, Riverside Office Park, 1303 Heuwel Avenue, Centurion 0157,Tel +27)12 622 5700 Fax +27) 12 622 5784. IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (HELD AT BRAAMFONTEIN) CASE NO. In the matter between: AFRICA UNITE PARTY Applicant And CHIEF ELECTORAL OFFICER The Respondent ¬ FOUNDING AFFIDAVIT I, the undersigned, ROBIN DENTON Do hereby state under oath as follows: Introduction 1. I am not a qualified attorney but representing myself as the applicant in this motion. If it pleases the court to appoint an attorney to act on our behalf we will not object; but we remind the court that we cannot afford an attorney at this time to represent us. We have supplied our address of 117 Strand Street, Crystal Park as the offices for the AFRICA UNITE PARTY who are the applicants. 2. I am duly authorized to bring this application on behalf of the Party and act on the directions of the Secretary and Vice Chairman/President of the applicant. 3. The facts contained in this affidavit are, unless otherwise indicated, within my personal knowledge and are, to the best of my belief, both true and correct. I gained personal knowledge of the facts as the founder and leader of AFRICA UNITE PARTY and as an interested participant in standing for public office in the National Elections in May,2014. The Parties 4. The applicant is the AFRICA UNITE PARTY, a political party registered to contest elections in terms of the Electoral laws of the Republic of South Africa having its headquarters at Sondela House, 117 Strand Street,Crystal Park , Benoni. 5. The respondent is the Chief Electoral Officer appointed as such in terms of the Electoral Laws of South Africa as such at Elections House, 1303 Heuwel Avenue, Centurion, 0157. The purpose of this application 6. The purpose of this application is the following : 6.1 Condoning the applicant’s failure to comply with the timeframes set in the Rules of this honourable court for service and filing of process and dealing with this matter on an urgent basis. 6.2 Granting the applicant leave to appeal directly to this honourable court against the ruling of the High Court dated 12th March,2014 as an interested party and amicus curiae ,insofar as it declares that placing a large deposit with the IEC shows “ seriousness” that Mr. Denton( who is the sole candidate of the AFRICA UNITE PARTY) intends to stand for and contest the National Election as leader of his party; a party registered by the IEC in accordance with the Electoral Commissions Act on the 7th March,2014. That it is not in the interests of our constitutional democracy to exclude smaller parties on the basis of financial means. 6.3 Granting the applicant leave to appeal against the decision of the High Court and/or the IEC to stand for public office for the reasons stated in this affidavit. 6.4 Setting aside the decision of the Electoral Court /and or High Court to place a substantial deposit in order to run for public office in the National Elections. 6.5 Declaring that Mr. Denton is eligible to be on the list of candidates and that his party is also eligible to be on the lust for National Elections because it is in the public interest of this country; and 6.6 Declaring that Mr. Denton does qualify for inclusion on the list of candidates for the elections to be held on the 7th of MAY, 2014. 7. Further, to declare that placing a large deposit with the IEC does not show “seriousness” nor is it necessary to show that a party is eligible to run in the National and/ Provincial elections. That it is enshrined in our constitution in the Bill of Rights and healthy for the progress of our democracy to be inclusive not exclusive, so that every voice may be heard in this process. Factual Background and context 8. On 18th March 2014, the respondent objected to the candidacy of AFRICA UNITE PARTY ( AUP) by sending a non-compliance notice to the party’s email. A copy of this non compliance notice is attached marked ;AUP1 9. The IEC acting within their constitution and timetable did so to give all parties a reasonable time limit to comply with any outstanding requirements. These requirements the AUP have complied with willingly with the exception of the payment of R200 000 which this party disagrees with and believes is unconstitutional as it precludes our sole candidate from standing in this election. The applicant offers the court the following explanation: a. Under Section 3b of the Electoral Commissions act the IEC has a mandate to ensure the elections are free, fair (and credible). But what does the very term “ free and fair” really mean if by very definition of those words the rights of the individuals concerned and parties concerned are infringed by the compulsory payment of an exorbitantly large amount of money to stand in and to contest the elections ( considering also that smaller parties do not get any money from the IEC to campaign with if they are not already standing in parliament),this gives an unfair advantage to other parties who have limitless funds to campaign with. There is NO level playing field at all as a result. b. The Bill of Rights under Section 19-24 states that anyone who is a South African citizen may stand for public office. This also guarantees the right or freedom of assembly, to form a political organization or party to express the will of the people in a free atmosphere, a free environment and a free and fair election- which will determine the outcome of the will of the people. c. The word “fair” means exactly that – which a fair or equal platform where all voices have the possibility to be heard. If those voices are excluded because of financial abilities or restraints; the election is no longer “free” or fair…or credible. If this were so then the IEC would have failed in its duty of care to the South African people; and in their objective to promote constitutional democracy. Furthermore, the argument of other countries and what they do is not relevant here. We are not a first world country yet; and many of those people whom we represent do not have the wherewithal to contribute on the same levels as others do in richer nations. We are still a young democracy. d. The voice of the people must be heard without fear, favour, and prejudice including financial prejudice. It is their right under our constitution. e. Finally, The AUP is currently in the midst of a serious case against the state president Mr. Zuma for theft, fraud and corruption (Docket No 1046). If this party were not serious in its intentions to serve the people of this country ; they would not be standing for elections or contesting in court against injustice. Also many of the country’s people who are affected by racial violence do not feel they have a voice in parliament. Red October is one such organization. They have sent a public petition to parliament in October of last year and have so far not received a response from the speaker. We therefore contend that not only is it in the public interest that we contest in these elections; but that for a single solitary candidate to pay such a high deposit makes this election no longer free, or fair…or constitutional. The applicant further attaches copies of the charges laid against President Zuma showing that we as a party are indeed serious in our intentions to serve the people of this country AUP2; we also submit the Constitution of South Africa as exhibit AUP 3 and the Ballot sheet printed by the IEC on the 19.03 2014 after the signing of the Code of Conduct – which this party signed first. AUP4. As a precedent to this ruling I would like to suggest the honourable court also read the comments of Judge D Mlambo P 14 ( 27) , Judge President of the Gauteng Division of the High Court of South Africa in Pretoria at the matter between the media and Oscar Pretorius Case NO 10193/2014 – AUP5. In this the honourable judge refers to our democracy as young and the people finding it difficult to access the justice system because of their financial restraints. Similarly, if our elections are to be free and fair and comprehensive, we need to give everyone a chance to be heard and to choose whosoever they desire to represent them. If the IEC places such a huge obstacle in the way of new fledgling parties to contest; many of those voices will be silenced. As the justice system should not be for the rich and the famous… so too should the electoral process not be for the economically advantaged. The objects of the Commission, as defined in section 4 of the Electoral Commission Act, 1996, are to strengthen constitutional democracy and promote democratic electoral processes. At the moment this isn’t happening. 10. A better way has to be found for full representation. And this should be the new challenge for the IEC in the years to come. What we are asking the honourable court now is for a chance to make a difference in our country. We are serious. 11. The AFRICA UNITE PARTY has so far complied with all the requirements of the IEC and wishes to contest in these elections. We cannot pay the required deposit money and we feel that on principle it is not fair that we pay. We have shown the IEC and South Africans that we are acting in good faith to represent their concerns and to be their voice. All we are asking this court is to uphold our constitutional right to stand for public office and to give us a chance to show what we can do. 12. I would like to say that Mr. Denton is an upstanding member of the community and is of good character. In light of the fact that we are already on the ballot sheet ; we are in the process of participating in a very high profile case that concerns all South Africans, and that we are serious about standing in these elections; we ask the courts indulgence to waive this unfair requirement to pay the R200 000 deposit. Urgency 13. It is my contention that this matter is urgent. We are in the middle of a campaign and we have to put it all on hold if we cannot contest in these elections. Many people will suffer as a result because they have looked up to us to represent them. The IEC have given us until today to comply with their requirements. 14. We have until the 10th April to appeal to the Electoral Court for our non compliance. If this court rules in our favour we will have a chance to contest in this year’s election. We have to show the IEC just cause for non compliance. This is why we have come directly at this time to the esteemed constitutional court to protect our rights under the constitution to stand for public office. 15. The applicant has approached the court at the first available opportunity. Since signing the Code of Conduct and trying all other avenues to comply with the IEC requirements; we have seen this is our last recourse for justice. Wherefore, I respectfully pray for an order in terms of the notice for motion to which this affidavit is attached. DEPONENT I certify that the deponent has acknowledged that he/she knows and understands the contents of this affidavit, which was signed and sworn to before me at on this day of 2014, The regulations contained in Government Notice No. 1258 of 9 September 1972, as amended by Government Notice No. 1648 of 17 August 1977, as amended having been complied with. ____________________________________ COMMISSIONER OF OATHS FULL NAMES ADDRESS CAPACITY