Johannesburg - Electoral Commission of SA (IEC) chairwoman Pansy Tlakula should be removed from her position due to misconduct, the Electoral Court ruled on Wednesday.
Judge Lotter Wepener recommended her removal in a written judgment, but emphasised that it was up to the relevant committee of the National Assembly to take further steps.
The application was brought earlier this year by several opposition parties seeking Tlakula's resignation as chairwoman of the IEC before the May 7 elections.
The matter was postponed, however, until after the general elections to allow the court enough time to make a recommendation.
The United Democratic Movement, the African Christian Democratic Party, the Congress of the People, Agang SA, and the Economic Freedom Fighters wanted Tlakula's resignation, arguing that her integrity had been compromised.
This followed a report by the Public Protector and a subsequent forensic investigation by the national Treasury into the procurement of the IEC's Riverside Office Park building in Centurion. At the time, Tlakula was chief electoral officer.
Madonsela found, among other things, Tlakula had a relationship --possibly of a romantic nature -- with the then chairman of Parliament's finance portfolio committee Thaba Mufamadi.
He was a shareholder in Abland, which owns the IEC's current premises.
The Treasury probe found the process was neither fair, transparent, nor cost-effective. It also found Tlakula neither gave guidance nor formally informed various people what was expected of them in the process.
Tlakula faced accusations of maladministration and conflict of interest.
In the judgment on Wednesday, Wepener said the relevant Parliamentary committee would need to make a decision on whether or not Tlakula was guilty of misconduct.
"However, this court is required to weigh up all the relevant factors and decide the question of misconduct in order to make a recommendation."
He said Tlakula had not "seriously" denied failing to disclose her relationship with Mufamadi in the procurement process for the lease of the IEC's office space.
"She disputes that she had a duty to disclose it, contending that she had no such duty because she had no financial stake in the company concerned."
During her tenure as chief electoral officer of the IEC, Tlakula headed its administration and in this capacity was the IEC's accounting officer for the purposes of the Public Finance Management Act (PFMA). As such, she was responsible for the IEC's financial affairs.
"Her failure to accept responsibility is deserving of censure as it constitutes a violation of the provisions of the PFMA. The conduct of the respondent is described by section 31 of the PFMA as ‘financial misconduct'."
During the court's inquiry into Tlakula's fitness to hold office, her advocate Daniel Berger, SC, had argued that Tlakula tried to improve the IEC's procurement processes.
"There was a general understanding at the commission for years that rental of office space was not subject to tender," Berger argued.
An initial deal for the leasing of office space led to a premises in Menlyn, Pretoria, being selected.
Tlakula subsequently called for "some sort of open process".
"That was what she initiated and followed through with," Berger argued.
Wepener said that Tlakula should be held responsible for the irregular and unlawful process she initiated, whereby the executive committee she presided over would control the bidding process.
"This, in our view, is irregular conduct, detrimental to the commission and a violation of the applicable prescripts.
"The court is of the view that it is unlawful and constitutes misconduct on the part of the respondent."
The court found that public perception of the IEC's independence was as important as that of the offices of the Public Protector, the Auditor-General and the judiciary.
"The respondent compromised the integrity and independence of the commission in violation of a requirement that such integrity and impartiality must be above suspicion and beyond question."
Tlakula's conduct therefore risked impairing public confidence in the IEC's integrity and impartiality.
"In the circumstances, I am of the view that (Tlakula), as a public official... is to be held accountable... in that she is obligated to inform the public about her past and future actions and decisions, to justify them, and to suffer punishment in the case of eventual misconduct." - Sapa