By Christelle Terreblanche and Xolani Mbanjwa
As the ANC gears up to take a defiant Congress of the People (COPE) to court over the use of its name, the fledgling party has run into another legal problem - which is likely to prevent almost 30 of its new members from contesting crucial by-elections in December.
COPE was hoping to flex its muscle in by-elections in three provinces on December 10, after 55 ANC councillors defected in November to climb aboard the so-called Shikota Express. The resignations were timed for them to contest their seats in the by-elections.
But 28 vacancies - 11 in the Northern Cape and 17 in the Free State - have not been declared, and COPE is now alleging foul play on the part of the ruling party.
COPE is accusing the Free State and Northern Cape MECs for local government of deliberately exploiting a loophole in the law, which allows them to postpone declaring vacancies for 90 days.
This latest setback comes as COPE and the ANC square off for a battle in the courts over the use of the name, Congress of the People.
COPE has refused to accede to the ANC's demand that it cease using the name, arguing that the 1955 Kliptown Congress of the People was an historical event and as such cannot "belong" to the ANC.
But the ANC is determined to fight this, with spokesperson Carl Niehaus saying on Thursday the party would challenge COPE's application to register as a political party with the Independent Electoral Commission (IEC) as well as its applications to the registrar of companies and the registrar of trademarks.
COPE attorney Deon Bouwer says the party would fight any such moves.
However, COPE will not be going to court over the fact that its plans to field candidates in the Free State and Northern Cape by-elections have been stymied. Advocate Luzelle Adams said on Thursday that COPE's legal team had decided against this, because the law contained a loophole which did allow MECs to postpone declaring vacancies, in consultation with the IEC, for 90 days.
Adams said she believed the law should be changed and the loophole closed.
"In future, I believe it would be fair to amend this to give all parties a chance to determine the date of by-elections."
"They have done this on purpose," an outraged COPE candidate, Karel Pretorius from Sol Plaatje Municipality (Kimberley), said on Thursday.
"This is more delaying tactics from the ANC to prevent us from exposing them so soon."
Pretorius resigned from his ANC seat to join COPE earlier this month.
The IEC's Michael Hendricks said: "MECs are fully empowered to declare vacancies or not, just as it's the president's prerogative to proclaim national elections. The only legal requirement is that MECs should fill vacancies within 90 days of resignations.
"There was no cut-off date for resignation and the MEC could (have determined) that in consultation with the IEC."