Key Takeaways
- The ANC appealed the Electoral Court’s decision to exclude 181 councillor candidates because the party failed to click the IEC’s “submit as final” button before the August 28 5 p.m. deadline, even though all candidate details, ID numbers and deposits were uploaded and paid.
- ANC counsel argued that the “submit as final” function is a software feature, not a legal requirement, comparing it to a lecturer accepting a draft essay once the deadline passes because the document can no longer be altered.
- The IEC maintained that clicking the button is a mandatory step in the online nomination system, citing system reminders, training sessions and the fact that the party had complied with every other procedural step.
- Justices probed whether the button’s requirement had any basis in statute, regulation or gazette notice, and both sides agreed it does not appear in any formal election law.
- The court was asked to consider the practical consequences of treating an un‑clicked list as provisional, including audit needs, voter confusion and the possibility of parties deliberately leaving lists unfinished.
- The appeal was heard by a full Constitutional Court bench, with the DA supporting the IEC’s position; the outcome will clarify whether a technical software step can override substantive compliance with electoral nomination rules.
Background of the Dispute
The African National Congress (ANC) approached the Constitutional Court after the Electoral Court upheld the Independent Electoral Commission of South Africa’s (IEC) decision to reject its lists of 181 councillor candidates for the November 4 local government elections. The IEC rejected the nominations because the ANC had not pressed the “submit as final” button on its online nomination system before the 5 p.m. deadline on August 28, despite having uploaded all candidate details, paid the required deposits and completed every other procedural step. The affected municipalities span the Eastern Cape, Free State and KwaZulu‑Natal, with the ANC having no candidates at all in Port St Johns and Ngquza Hill.
ANC’s Analogy and Core Argument
Advocate Daniel Berger SC, representing the ANC, likened the situation to a university student submitting a draft essay before a deadline and then informing the lecturer that further changes would follow. Berger argued that once the deadline passes, the document on the IEC’s system can no longer be altered, rendering it effectively final, just as a lecturer would assess the draft after the deadline. He contended that the “submit as final” button is merely a feature of the IEC’s software and not a legal requirement; therefore, the commission cannot use its omission to invalidate a nomination that otherwise satisfies all statutory obligations.
Legal Status of the “Submit as Final” Requirement
Berger emphasized that the requirement to click the button has never been published in the Government Gazette, nor does it appear in any statute, regulation or election timetable. He cited the earlier ACDP case, in which the Constitutional Court held that parting with money (paying deposits) is a clear indication of a party’s intention to participate in an election. According to Berger, the IEC’s reliance on an un‑gazetted software step amounts to importing a requirement through the “back door,” which is impermissible under the rule of law.
IEC’s Defence of the Nomination Process
Advocate Terry Motau SC, for the IEC, countered that the online system’s design obliges parties to click “submit as final” to lock in their nominations. He stated that the IEC had verified its system after the ANC’s complaint and found no technical glitches; the party had simply left the nomination process to the last moment and missed the deadline. Motau highlighted that the ANC had complied with every other systemic requirement—entering ID numbers, uploading documents and paying deposits—but could not now disregard the single step it omitted. He also noted that the IEC had conducted training sessions, demonstrations and sent automated reminders warning the ANC that its lists remained provisional.
Judicial Scrutiny of the Button’s Legal Basis
Several justices pressed both sides on whether the “submit as final” requirement possessed any legislative force. Justice Rammaka Mathopo asked what voters would be told if their chosen candidate was excluded because a button was not clicked, and whether a manual or guideline could ever carry the force of law. Justice Andre le Grange pointed out that the requirement is absent from any statute, regulation, gazette notice or election timetable, a fact Berger conceded. Justice Kate Savage described it as “quite extraordinary” that the ANC had finalized its lists nationwide but omitted the step in six municipalities, suggesting gross negligence unless a credible explanation emerged.
ANC’s Explanation for the Omission
Berger offered an explanation: the ANC had contacted the IEC’s help desk in the final half‑hour before the deadline to report technical problems, a fact acknowledged in the IEC’s affidavits. He argued that, had the system been functioning correctly, the party would have pressed the button. However, he admitted that this explanation could not be relied upon under the rules for deciding disputes of fact on paper, leaving the court to weigh the credibility of the claim against the IEC’s assertion of no system faults.
Potential Consequences of Treating Lists as Provisional
Justice Nonkosi Mhlantla compared the nomination process to an online visa application, questioning whether the button served merely as a convenience for the IEC, since the commission could view the information regardless of whether it was marked final. Justice Leona Theron inquired how long a list that never received the final click would remain provisional and whether the IEC’s stance would change if the button were labelled simply “submit” or “finish.” Motau responded that the ability to amend lists before the deadline is a benefit afforded to parties, and that this flexibility cannot be used to excuse a failure to meet the deadline once it expires.
Broader Implications for Electoral Administration
The case raises fundamental questions about the balance between procedural formalities and substantive compliance in South Africa’s election law. If the Constitutional Court sides with the ANC, it could limit the IEC’s ability to enforce software‑based steps that lack explicit legislative backing, thereby protecting parties from disqualification on technical grounds alone. Conversely, upholding the IEC’s position would reinforce the authority of electoral administrators to prescribe detailed procedural requirements, even when embedded in electronic systems, provided they are applied consistently and transparently. The DA’s intervention in support of the IEC indicates that political parties across the spectrum are watching the outcome closely, as it may affect future nomination strategies and the readiness of parties to navigate electoral technology.
Conclusion and Anticipated Impact
As the bench deliberates, the judgment will likely clarify whether a missing “submit as final” click constitutes a fatal defect in a nomination or merely a procedural irregularity that cannot outweigh full substantive compliance. The decision will influence how electoral commissions design and enforce online nomination platforms, how parties allocate resources to meet deadlines, and ultimately how voters perceive the fairness and reliability of the electoral process. Regardless of the outcome, the case underscores the need for clear, gazetted rules governing electronic election procedures to prevent disputes that hinge on software features rather than democratic participation.