The Constitutional Court has ruled that 181 ANC councillor candidates can contest the November 4 municipal elections, overturning an Electoral Court decision that upheld their exclusion by the Electoral Commission of SA (IEC).
The ruling, delivered on Thursday, follows the ANC’s appeal against a September 16 judgment that backed the IEC’s decision to exclude the candidates in six municipalities.
The 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 were 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 for the November 4 elections.
The ANC's argument
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.”
Berger compared the candidate lists to a student’s essay, telling the court that a lecturer would not refuse to mark an essay simply because it had been handed in as a draft before the deadline passed.
“The commission has the document,” Berger said.
“And so, the question is, how is the commission to know that that document is your final document, precisely because, at that point in time, I cannot make any further changes to the document. So that’s how the commission knows.”
He also argued that if the button was treated as law, the IEC could change the law whenever it changed its software, without publishing anything in the Government Gazette.
Mathopo said from the bench on Monday that his concern was not only the ANC’s case but the wider effect the judgment would have.
“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,” Mathopo 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.”
The IEC's argument
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.
“What did it mean in terms of the interpretation advanced by the ANC? It is that the commission must make ad hoc decisions to say, well, in this particular case they are contesting, that was the intention, but in that particular case they are not.”
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.