The Constitutional Court has reserved judgment on the ANC’s desperate attempt to force its way back onto the ballot in six municipalities, but has promised it will not keep the country waiting.
After a tense full-day hearing in Johannesburg on Monday, the apex court said it understood the urgency with elections just weeks away on November 4 and would deliver its decision soon.
The ANC wants the court to compel the Electoral Commission to add 181 candidates who were locked out after the party failed to press the final submission button on the IEC’s online nomination system before the deadline.
ANC heavyweights packed the courtroom to watch their fate decided – Secretary-General Fikile Mbalula, ANC Electoral secretary Chief Livhuwani Matsila and national spokesperson Mahlengi Bhengu-Motsiri were some that were present.
The party admitted it did not press “submit as final” for Port St Johns, Ingquza Hill and four other councils where it won up to 75% of the vote in 2021, but argued that should not be fatal.
Advocate Daniel Burger for the ANC told the court the party had done everything the law requires – uploading all candidate details, ID copies, acceptance forms and paying deposits before 5pm.
“The ANC completed all the electronic forms on the system and uploaded all the annexures onto the system before the 5 p.m. deadline, and therefore the ANC complied,” Burger argued.
He said the button is an IEC invention, not a legal requirement in the Electoral Act or its regulations, and cannot be used to punish a party and its voters.
“We don’t have to have that button declared unlawful. The button can continue, and it can continue to serve whatever function it serves to assist the commission, but it cannot be used to disqualify parties that have submitted all forms and the lists that are required,” Burger said.
To exclude the ANC, he argued, would disenfranchise thousands of voters in its Eastern Cape heartlands who expect to see the ANC on the ballot, and that the R720,000 cost to reprint ballots would be justified.
The IEC hit back hard, accusing the ANC of trying to cherry-pick which rules count.
Advocate Terry Motau SC for the Commission said the ANC has known for ten years how the electronic system works and cannot now pretend the final step is optional.
“What this is, is a pure issue of leaving what otherwise would not have been a controversy, leaving it too late, and running out of time and not being able to press the button which the ANC accepted that it needed to comply with,” Motau said.
He said the ANC initially cried glitch, then changed its story to attack the button itself.
While conceding the button is not expressly in the Act, Motau said neither are the other steps the ANC did comply with – like uploading documents – and the party cannot invalidate one while relying on the others.
He warned the court that allowing the ANC to bypass the final click would force the IEC to make ad hoc, unfair decisions for all parties.
To argue voters will be disenfranchised, Motau said, is of the party’s own making.
Judge Kate Savage pressed Burger on a glaring inconsistency, saying it was “quite extraordinary” that the ANC managed to press submit as final for every other municipality except these six.
Burger conceded the party only called the IEC help desk just before the deadline when the button would not go through.
The matter is now in the hands of the justices. The IEC has already told the court it can still add the names if ordered, but time is running out for ballot printing and distribution.
If the ANC loses, it would mean it will have no candidates in six councils it currently governs .
A ruling is expected within days.