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ANC start legal action to force uPhongolo Municipality to call 13 by-elections

In preliminary legal papers, the ANC, through Vryheid-based law firm BM Thusini Inc, has produced letters to the IEC, proving that the IFP councillors did resign. File Picture: Werner Beukes/SAPA

In preliminary legal papers, the ANC, through Vryheid-based law firm BM Thusini Inc, has produced letters to the IEC, proving that the IFP councillors did resign. File Picture: Werner Beukes/SAPA

Published Apr 13, 2022

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Durban - The ANC in the Mzala Nxumalo region (Zululand) is mounting a massive legal battle to force the municipal manager of uPhongolo, Bethuel Khali, to declare vacancies and later the IEC to call 13 by-elections in the largely agricultural municipality.

According to the papers seen by the Daily News, the lawyers for the ANC first wrote to the Electoral Commission of South Africa (IEC) in Durban, asking it to declare a vacancy in the 13 wards of the municipality on the basis that shortly after the elections on November 1, the IFP asked the councillors to resign and they obliged.

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In preliminary legal papers, the ANC, through Vryheid-based law firm BM Thusini Inc, has produced letters to the IEC, proving that the IFP councillors did resign.

In response to the ANC’s demand, the IEC’s legal department in KwaZulu-Natal said it has no right to declare vacancies as that is the duty of the municipal manager, in this case, Bethune Khali, who is acting on the position.

“Kindly note that the commission is not responsible for the declaration of a vacancy within a municipal council; nor is the commission responsible for the acceptance of any documents from a political party in respect of a purported vacancy. This function is legislated and falls within the jurisdiction and ambit of the office of the municipal manager,” the IEC said, moving the battle to the office of the municipal manager where it is now being fiercely fought.

Now the ANC wants the municipal manager, Khali, to declare the required vacancies so that the by-election process could be triggered.

“On November 9, 2021 all the aforementioned councillors except one attempted to retract their resignations, which retraction was unfortunately incompetent at that point because resignation had taken effect … Consequently, we are instructed to bring, on an urgent basis, the application to seek orders in the High Court PMB, inter alia: Declaring that the aforementioned councillors resigned as councillors of uPhongolo Municipality, reviewing and setting aside their swearing-in as councillors of uPhongolo Local Municipality, declaring that a vacancy existed in each affected ward, that the IEC is directed to hold by-elections in the affected wards,” the ANC lawyers wrote to Khali.

The municipality, which is along the South Africa-eSwatini border in northern KwaZulu-Natal, has 29 seats. The IFP has got 15 seats while the ANC has got 10 and the rest went to other opposition parties.

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If the by-elections are called and the ANC wins most of them, it will be able to reclaim the municipality it governed since 2011 and lost to the IFP in November last year.

The regional secretary of the ANC in the Mzala Nxumalo region, Zakhele Buthelezi, confirmed that they have begun the legal process.

“Yes, we can confirm that we have started the legal action,” Buthelezi told the Daily News on Wednesday when asked about the matter.

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Khali said the matter was now with their lawyers and the ANC seemed to be confused.

“Yes, I did receive court documents delivered by the sheriff. Am defending. What I don’t understand in the papers, they talking about resignation as ward councillors, but the attached documents talk about PR councillors. And the documents they sent to the High Court don’t make any sense. All in all, this matter is with our lawyers,” Khali said.

The national spokesperson of the IFP, Mkhuleko Hlengwa, said this case was informed by sheer desperation on the part of the ANC, and showed a basic lack of understanding of the country’s electoral laws.

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“There is no case here … they are wasting the court’s time, which is typical of the ANC,” Hlengwa said.

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