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Representing a coalition of political parties in a complaint to the Electoral Court against advocate Pansy Tlakula

Representing a coalition of political parties in a complaint to the Electoral Court against advocate Pansy Tlakula

12th December 2014

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The Webber Wentzel media law team acted for a coalition of political parties (the African Christian Democratic Party, AGANG SA, the Congress of the People, the Economic Freedom Fighters and the United Democratic Movement) which sought the removal of the chairperson of the Independent Electoral Commission (IEC), Advocate Pansy Tlakula, on the ground of misconduct. The allegations of misconduct flowed from reports compiled by the public protector and PricewaterhouseCoopers (PwC) at the end of 2013. The reports detailed allegations that in 2009, while still the chief electoral officer of the IEC, Advocate Tlakula conducted an irregular tender process for the procurement of new premises to be leased by the IEC. The procurement process breached the Public Finance Management Act, No. 29 of 1999 (PFMA), the Treasury Regulations as well as the IEC's own procurement policy.

It was argued that these failures were compounded by two critical features:
Firstly, Advocate Tlakula failed to disclose a conflict of interest when overseeing the tender process as her business partner, who is also a sitting member of Parliament and was on the ANC's Party List during the tender process, was a director of one of the companies that was awarded the contract.
Secondly, Tlakula's own evidence demonstrated that she was aware of what the law required and that she consciously decided to break the law when she adopted the flawed procedure for awarding the tender.
It was argued that these features demonstrated that Tlakula was guilty of misconduct; that her actions call into question her integrity; and that she is not fit to preside over the country's elections.

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The Electoral Court agreed. It rejected Advocate Tlakula's argument that she had no obligation to disclose a conflict of interest, because she did not have a direct financial interest in the transaction.

The Court found that Advocate Tlakula was indeed guilty of misconduct and made a recommendation to the National Assembly that she be removed from office as the misconduct rendered her unfit to occupy the office of chairperson of the IEC.

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Advocate Tlakula subsequently appealed to the Constitutional Court which unanimously dismissed the appeal on the basis that it had no prospects of success. In the wake of the dismissal of her Constitutional Court appeal, Advocate Tlakula stepped down as chairperson of the IEC on 2 September 2014 .

This is the first successful case of its kind in South Africa and is an important victory for holding public officials to account.

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