Simon Nare
The Constitutional Court will on Thursday deliver judgement in the ANC’s bid to reinstate 181 councillor candidates excluded from the 4 November local government elections after the party failed to complete its nominations before the deadline.
The ANC approached the apex court to overturn an Electoral Court ruling that upheld the Electoral Commission of South Africa’s (IEC) decision to exclude its candidates in six municipalities after the 28 August submission deadline.
The affected municipalities are Port St Johns, Ingquza Hill, Walter Sisulu and Sundays River Valley in the Eastern Cape, Mangaung in the Free State and uMshwathi in KwaZulu-Natal.
The ANC argued that it had complied with the legal requirements and that all relevant candidate information had been captured on the IEC’s electronic system before the 5pm deadline. However, it claimed that “technical difficulties” prevented it from completing the final submission process.
During arguments before the court on Monday, the IEC conceded that the requirement to click the final submission button on its online candidate nomination system was not expressly provided for in legislation or regulations.
However, the commission argued that the ANC could not challenge the requirement after using and benefiting from other features of the system that were also not explicitly prescribed in the regulations.
IEC legal representative, Advocate Terry Motau, argued that the ANC’s use of these features demonstrated its acceptance of the commission’s authority to prescribe operational requirements for the electronic system.
He said the party could not elevate the final submission button above other requirements simply because it had failed to click it before the deadline.
“We have stipulated what the system requires for the purposes of uploading documents, among other things, that the documents must be populated in a spreadsheet. It stipulates information such as the identity of parties,” Motau said.
He said that the ANC had benefited from being able to upload documents electronically rather than completing the process manually, travelling to IEC offices and submitting the documents in person.
Justice Rammaka Mathopo questioned the legal basis for requiring parties to click the final submission button, saying the requirement appeared to derive from neither legislation nor regulations.
“If there is no legal instrument, what do we make of it?” Mathopo asked.
Motau said the commission accepted that the court could find that the regulations had to expressly list every requirement of the electronic system for the IEC to have the authority to enforce it.
“If this court wants to say ‘prescribe’ means listing all the requirements of the electronic system expressly in the regulations, and the fact that this requirement is not expressly listed in the regulations, means the commission has no power to exclude the ANC candidates,” Motau said.
Representing the ANC, Advocate Daniel Berger argued that political parties were required to comply with legislation and regulations, not software requirements that had not been legally promulgated.
“A screen design that was not promulgated by regulation is not law,” Berger said.
The party successfully completed the process in four of the six municipalities, but only for ward candidates.
Berger said the IEC acknowledged that the ANC had contacted its helpline shortly before the deadline and had not disputed the party’s account of the call.
He argued that the commission’s own explanation of how the system operated should be accepted and that the ANC should not be criticised for reporting difficulties with the platform.
“It is simply wrong to suggest that a party must be admonished for explaining that it experienced problems with the system,” Berger said.
The Democratic Alliance, which opposed the ANC’s application, argued that allowing candidates whose nominations had not been finalised could create administrative difficulties and have wider implications for the electoral process.
The IEC identified 2,274 candidates across 45 political parties whose details had been captured on its system but whose nominations had not been finally submitted.
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