The African National Congress has won a Constitutional Court appeal that allows 181 of its councillor candidates to contest next month’s local government elections.
The court on Thursday overturned a 16 September Electoral Court ruling that had upheld the Electoral Commission of South Africa’s decision to exclude the candidates in six municipalities.
The dispute centred on the ANC’s failure to complete the final submission step on the IEC’s online candidate-nomination system before the 5pm deadline on 28 August. The party had uploaded the candidates’ details and paid the required deposits, but had not clicked the system’s “submit as final” button before the deadline.
The six affected municipalities 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 decision to exclude the lists left the ANC without candidates for the 4 November elections. The Constitutional Court’s ruling now clears the way for the 181 candidates to contest in the affected municipalities.
The available information does not include the full reasons for the Constitutional Court’s decision. The ruling followed a hearing on Monday before a bench led by Deputy Chief Justice Dunstan Mlambo.
ANC challenges online submission requirement
Representing the ANC, advocate Daniel Berger SC argued that the “submit as final” button was a feature of the IEC’s software rather than a requirement created by election 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. He argued that a lecturer would not necessarily refuse to mark an essay simply because it had been submitted as a draft before the deadline.
“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 argued that treating the button as a legal requirement would allow the IEC to change the law whenever it changed its software, without publishing a formal amendment in the Government Gazette.
Berger said the ANC had uploaded its candidate information and paid the deposits, and therefore had demonstrated its intention to contest the elections. The central question, he argued, was whether a missed digital confirmation step could invalidate an otherwise complete submission.
Concern about wider consequences
Justice Rammaka Mathopo questioned the broader implications of the case during Monday’s hearing. He said the court had to consider not only the ANC’s circumstances, but also what its decision would mean for election administration and political parties in future elections.
“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.”
Justice Kate Savage also questioned why the ANC had finalised its lists across the country but had not done so in the six affected municipalities.
She described the situation as “quite extraordinary” and said there appeared to be no explanation other than gross negligence.
Berger responded that ANC representatives had contacted the IEC’s help desk during the final half-hour before the deadline to report problems. He said the commission accepted that the call had taken place.
The court’s consideration of these issues reflected the tension between ensuring strict compliance with election deadlines and preventing technical procedures from excluding candidates where a political party has otherwise uploaded information and paid the required deposits.
IEC defends exclusion
The IEC opposed the ANC’s appeal and argued that the commission’s online system had operated properly. Advocate Terry Motau SC, representing the IEC, said the commission had checked the system and found no glitches.
He argued that the ANC had left its nominations too late, despite the system having been available for an extended period.
“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.
Motau warned that accepting the ANC’s interpretation could require the IEC to make ad hoc decisions about whether a party had intended to contest in a particular municipality.
“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 expressly listed in the statute or regulations. He argued, however, that it was comparable to other steps in the electronic system that the ANC had followed without objection.
Motau also told the court that the system had sent the ANC’s representatives a warning before the deadline. The message stated that the lists had not been submitted as final and had to be completed before 5pm on 28 August if the party wanted to contest the elections.
The Democratic Alliance, represented by advocate Michael Bishop SC, opposed the ANC’s appeal and supported the IEC’s position.
Impact on November elections
The ruling gives the ANC candidates in the six municipalities an opportunity to stand in the 4 November local government elections. It also resolves an immediate problem in Port St Johns and Ngquza Hill, where the party had been left without any candidates.
The judgment highlights the growing importance of online election systems and the legal consequences of digital procedures. Political parties must now consider not only whether candidate information has been uploaded, but also whether every final confirmation step has been completed before a deadline expires.
For the ANC, the ruling restores 181 candidates to the ballot. For the IEC, it raises questions about how electronic submission requirements should be framed, communicated and enforced in future elections.
The full impact of the judgment will depend on the court’s reasons and how the IEC implements the order. The supplied ruling confirms that the ANC’s appeal succeeded, but does not include the complete legal reasoning behind the decision.