Johannesburg - IEC chairwoman Pansy Tlakula cannot be punished for misconduct before she was appointed, the Electoral Court heard in Johannesburg on Wednesday.
“We submit that any conduct before appointment cannot be taken into account,” said Daniel Berger, SC, for Tlakula.
Judge Lotter Wepener asked - if this was the case - whether a breach of the rules after a commissioner's tenure would equally amount to misconduct.
“After? Can you do (an act of misconduct) with impunity?”
Berger replied that a former commissioner would then possibly fall foul of other laws, but not misconduct, if his or her tenure was over.
The court is considering Tlakula's conduct after an application by some opposition parties to have her resign as Electoral Commission of SA (IEC) chairwoman.
They brought the application before the May 7 elections.
The parties are the United Democratic Movement, the African Christian Democratic Party, the Congress of the People, Agang SA, and the Economic Freedom Fighters.
The matter was initially postponed on May 2 until after the elections as the court did not have enough time to make a recommendation.
The opposition parties argue that Tlakula's integrity had been compromised and that she should resign.
The application follows a forensic investigation by Treasury on the procurement of the IEC's Riverside Office Park building in Centurion, Pretoria.
At the time of the complaint Tlakula was the chief electoral officer.
The probe found the process was neither fair, transparent, nor cost-effective. It found Tlakula did not give guidance or formally inform various people what was expected of them in the process.
Tlakula has maintained she was not accused of corruption in the report.
The Treasury's report followed a recommendation by Public Protector Thuli Madonsela in her own report into the matter, released in August last year.
Berger submitted that the court should only consider arguments against Tlakula's actions as outlined in the parties' founding affidavit, the Public Protector's and the Treasury's reports, as these were the basis of the application.
Claims by the applicants, to the effect that Tlakula was dishonest and had a dismissive attitude towards the court, should not be entertained.
“It is not proper to have this character assassination... When that is not the complaint before court,” he said.