Key Takeaways
- The Constitutional Court reversed an Electoral Court decision, allowing 181 ANC councillor candidates to run in the November 4 local elections.
- The ANC’s nominations were rejected because it failed to click the IEC’s “submit as final” button before the 5 p.m. deadline on 28 August, even though it had uploaded candidate details and paid deposits.
- The ANC argued that the “submit as final” requirement is a software feature, not a legal rule, and that treating it as mandatory would let the IEC alter election law unilaterally.
- The IEC maintained that the button is a necessary procedural step, that the system functioned correctly, and that the ANC’s delay constituted neglect of its statutory duties.
- Judges expressed concern about the precedent: upholding the IEC’s stance could effectively disenfranchise parties that miss a software click, while overturning it might encourage ad‑hoc exemptions.
- The ruling safeguards the ANC’s ability to contest in six municipalities where it would otherwise have fielded no candidates, but it also highlights the need for clearer legislative guidance on electronic nomination procedures.
Background
On 16 September the Electoral Court upheld the Electoral Commission of South Africa’s (IEC) decision to reject the nominations of 181 ANC councillor candidates in six municipalities. The IEC had barred the ANC after the party failed to complete the final submission step on its online system before the 5 p.m. deadline on 28 August, despite having uploaded all candidate details and paid the required deposits. The affected municipalities were Port St Johns and Ngquza Hill (Eastern Cap), Walter Sisulu and Sundays River Valley (Eastern Cap), Mangaung (Free State) and uMshwathi (KwaZulu‑Natal). In Port St Johns and Ngquza Hill the ANC was left with no candidates at all for the 4 November local government elections. The party subsequently appealed the Electoral Court’s ruling to the Constitutional Court, which heard the matter on Monday.
Legal Arguments by the ANC
Advocate Daniel Berger SC, representing the ANC, contended that the “submit as final” button is merely a feature of the IEC’s software and not a legal requirement embedded in any statute or regulation. He argued that the IEC cannot impose a substantive electoral consequence—exclusion from an election—through a back‑door software mechanism that is not published in the Government Gazette. Berger likened the situation to a lecturer refusing to mark a student’s essay simply because it was handed in as a draft before the deadline, emphasizing that the IEC already possessed the complete documents and could verify their finality by noting that no further edits were possible after the deadline. He warned that treating the button as law would allow the IEC to change electoral requirements whenever it updates its software, without any legislative oversight or public notice.
IEC’s Position
Advocate Terry Motau SC, counsel for the IEC, countered that the party’s failure to click the button constituted a breach of a clear procedural step that had been available since 21 June 2016. He asserted that the system operated without glitches and that the ANC had simply left its nominations to the last moment, missing the deadline. Motau conceded, under questioning from Justice Rammaka Mathopo, that the “submit as final” requirement does not appear in the statute or regulations, but argued that it is no different from other steps in the nomination process that the ANC had followed without objection. He read aloud a system‑generated warning sent to the ANC’s representatives before the deadline, reminding them that their lists had not been submitted as final and must be by 5 p.m. on 28 August for the party to contest the elections.
Court Proceedings and Judicial Concerns
The bench, led by Deputy Chief Justice Dunstan Mlambo and including Justices Mathopo, Mhlantla, Dambuza‑Mayosi, Theron, le Grange, Savage and Acting Justice Nuku, heard the case on Monday. Justice Mathopo expressed unease not only about the immediate outcome for the ANC but also about the broader ramifications of the judgment. He warned that a ruling in favour of the IEC would send a message that a missed software click could automatically disqualify a party, potentially disenfranchising political actors over a technicality. Conversely, he noted that a ruling in favour of the ANC could encourage ad‑hoc exemptions, undermining the predictability of the electoral process. Justice Kate Savage remarked that it was “quite extraordinary” that the ANC had finalized its candidate lists nationwide yet omitted the final submission step in these six municipalities, suggesting gross negligence unless a plausible explanation emerged. Berger responded that the ANC had contacted the IEC help desk in the final half‑hour before the deadline to report technical problems, a call the IEC acknowledged receiving.
Broader Implications for Electoral Administration
The case touches on a growing tension between electoral administration’s reliance on digital platforms and the need for clear, legally grounded procedural rules. If the IEC’s interpretation were upheld, any future software update that altered or added a mandatory click could instantly change who is eligible to stand for election, without parliamentary scrutiny or public consultation. This would shift substantive electoral authority from the legislature to an administrative body, raising concerns about democratic legitimacy and transparency. On the other hand, accepting the ANC’s argument could lead to a slippery slope where parties routinely seek exemptions for missed deadlines, eroding the integrity of the nomination timetable and potentially encouraging last‑minute filings that compromise the quality of candidate vetting. The Constitutional Court’s decision therefore carries weight beyond the immediate fate of 181 candidates; it will help delineate the boundary between administrative convenience and legal obligation in South Africa’s evolving e‑election landscape.
Conclusion
By overturning the Electoral Court’s ruling, the Constitutional Court has granted the ANC a lifeline, allowing its 181 councillor candidates to appear on the ballots in the six affected municipalities for the 4 November local elections. The judgment underscores the necessity for electoral legislation to keep pace with technological tools used in the nomination process, ensuring that any substantive requirement—such as a final submission click—is anchored in law rather than left to the discretion of software designers. While the decision rescues the ANC from electoral oblivion in the targeted wards, it also serves as a reminder to all political parties and election administrators that clear, gazetted rules are essential to maintaining fairness, predictability, and public confidence in South Africa’s democratic system.