By Simon Nare
The Electoral Commission of South Africa (IEC) relied on the wrong interpretation of the law when it “chose” to disqualify the ANC from contesting the upcoming local government elections, the Electoral Court heard on Tuesday.
The ANC is seeking to overturn and set aside the IEC’s decision to exclude it from contesting in six municipalities.
ANC legal representative Advocate Daniel Berger told the full bench of the court that the party had complied with all requirements for submitting its candidate lists electronically and that its failure to press the final button to submit the lists should not disenfranchise the party.
Berger characterised pressing the final button as a “cosmetic” step that was not prescribed by law.
He argued that the ANC had, before the cut-off date, completed all the required information on the forms and paid the required fees, showing that the party intended to contest the elections in all six affected municipalities.
“It is also common cause that the commission was in receipt of all of that information and documentation, and was technically able to process it and include those nominations in the election,” he submitted.
Berger further argued that the IEC’s decision to disqualify the ANC was appealable because the commission had misinterpreted the law by treating the failure to press the final submission button as grounds for excluding the party.
“The commission made a choice. It had a choice between either processing the ANC’s nominations in the six affected municipalities or not processing them,” he said.
Berger said the decision was based on the IEC’s interpretation of the law and could therefore be appealed under Section 22A of the Electoral Commission Act.
He said the IEC was also wrong to argue in its court papers that its decision could not be appealed.
The IEC’s position, Berger said, was that the ANC had been excluded from the elections by operation of law and that the decision therefore could not be appealed.
“It would make nonsense of Section 22A to say that the Commission’s choice of one interpretation over another is not a decision capable of appeal,” he said.
“The ANC has not asked the commission to condone any late submission, but only to process what was submitted. The ANC is not asking this court to condone any lateness.
“The ANC has clearly identified how and when the commission made its decision to exclude the affected nominations. It’s in our heads of argument,” he said.
Advocate Terry Motau, representing the IEC, argued that the ANC had now changed its case from blaming technical glitches to challenging the commission’s interpretation of the law.
Motau said the court should not entertain the new argument.
The ANC, however, argued in response that its challenge to the IEC’s interpretation of the law was contained in correspondence between the parties and that Motau may not have considered those letters.
Berger said if the court accepted the ANC’s argument that the IEC had relied on the wrong interpretation of the law, the issue of whether the party should have pressed the final submission button would fall away.
“There is nothing under the Act and the regulations that talks about the necessity to press the final button,” Berger said.
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