The ANC had failed to finalize online nominations before the August 28 deadline despite uploading documents and paying the required deposits
South Africa’s Constitutional Court has cleared 181 African National Congress (ANC) candidates to contest next month’s local elections, overturning their exclusion over the party’s failure to complete a final online nomination step.
The court upheld the ANC’s appeal against a September 16 Electoral Court ruling that had backed the Electoral Commission of SA’s decision to exclude the candidates in six municipalities. The Electoral Commission of SA, or IEC, rejected the nominations after the ANC failed to complete the final submission step on the commission’s online system before the 5pm deadline on August 28, despite having uploaded the candidates’ details and paid the required deposits.
The six municipalities affected included Port St Johns, Ngquza Hill, Walter Sisulu and Sundays River Valley in the Eastern Cape, Mangaung in the Free State and uMshwathi in KwaZulu-Natal. In Port St Johns and Ngquza Hill, the exclusion had left the ANC with no candidates at all for the November 4 elections.
The matter was heard on Monday by a bench led by Deputy Chief Justice Dunstan Mlambo, which included Justices Rammaka Mathopo, Nonkosi Mhlantla, Nambitha Dambuza-Mayosi, Leona Theron, Andre le Grange and Kate Savage, and Acting Justice Lister Nuku. During the argument, advocate Daniel Berger SC, for the ANC, said the “submit as final” button was a feature of the IEC’s software and not a requirement of the law. “It is not law, and it cannot be brought in through the back door as being incorporated somehow into the regulations,” Berger said.
”It can contain all sorts of mechanisms to administer the elections, but it cannot contain a requirement that invalidates a submission and excludes a party from the elections, a party that has actually uploaded all its documents, and not only that, paid all its deposits,” he added.
Mathopo noted from the bench on Monday that his concern was not only the ANC’s case. ”My worry, it’s not this case itself, it’s the far-reaching implications that a judgment of this court would have, either for the ANC or for the IEC,” he said. ”If it’s for the IEC, for example, the message that will be conveyed would be absent clicking of a button, final submit, you are excluded.”
Advocate Terry Motau SC, for the IEC, told the court that the commission had checked its system and found no glitches, and that the ANC had left its nominations too late. ”It’s not only because a party decides not to contest, a party might have neglected its duties to use a system that was open since June 21 2016 and left it to the last moment and it missed the deadline,” Motau said.
Under questioning from Mathopo, Motau conceded that the requirement to click “submit as final” was not listed in the statute or the regulations, but argued that it was no different from other steps in the system that the ANC had followed without objection. Motau also read out a message the system had sent to the ANC’s representatives before the deadline, warning that their lists had not been submitted as final and had to be before 5pm on August 28 for the party to contest the elections.
Justice Kate Savage put it to Berger during the hearing that it was “quite extraordinary” the ANC had finalised its lists across the country but not in these six municipalities, and that there was no explanation other than gross negligence.
Berger said the ANC had phoned the IEC’s help desk in the last half hour before the deadline to report problems, and that the commission accepted the call had taken place.
The DA, represented by advocate Michael Bishop SC, opposed the ANC’s appeal and backed the IEC.
