The ANC risks having its candidate missing from six municipalities in the Free State and Eastern Cape.
Image for illustrative purposes. Picture: Michel Bega / The Citizen
The ANC’s participation in six municipalities in the Eastern Cape and Free State will hinge on the Constitutional Court’s interpretation of the electoral submissions procedure.
Legal professionals representing the IEC and ANC were before the court on Monday to sway the justices on whether the Electoral Act or the IEC’s online candidate nominations system (OCNS) took precedence.
The ANC in September missed a deadline to finalise its online submission, with the IEC arguing it had not progressed to the final submission phase in time.
Arguments presented to the court by the ANC mirrored its Electoral Court application which stated the party had uploaded the required info, but did not click the final submit button.
However, the IEC contends that all parties were given clear instructions on online submissions.
No ‘issue with the button’
Advocate Daniel Berger, representing the ANC, argued that the ANC had complied as it had loaded all the required forms and supporting documents onto the OCNS before the deadline.
He added that the IEC system was explicit about several aspects of its candidate nominations, especially deposit payments, but not the online requirements.
“The regulations say nothing about an additional or final step after all the information and annexures have been loaded onto the commission’s system.
“The commission knows how to prescribe a requirement when it wants one,” said Berger.
He argued that the final confirmation stage after the submission of the documents was an additional phase open to interpretation, giving a real-world example.
“The same section of the act, using the same verb ‘submit’, lets a party hand its documents in at the local office.
“No one suggests that a party at the counter must also ring a bell, or even ensure that its papers are stamped before its paper’s count,” said Berger.
Deputy Chief Justice Dunstan Mlambo pointed out that the ANC had complied with the OCNS parameters in all other municipalities, forcing Berger to change tact.
“We don’t have an issue with the button, we have an issue with the interpretation that says if you don’t press the button, you have not submitted your documents, and you’re therefore excluded from the election.
“All [the button] does is send a signal to the commission to say the party has said that this is its final submission. It doesn’t change the data that is sitting on the commission’s system,” said Berger.
ANC accused of ‘selective interpretation’
Representing the IEC, Advocate Terry Motau pointed out that the ANC had successfully argued for the exclusion of some candidates on the same grounds 10 years ago.
Motau said that while legislative regulations outlined the submission requirements, there were also explanatory steps given to all parties in an electoral manual, which the ANC were ignoring.
“What becomes the consequence of a selective interpretation basis that has been adopted by the ANC, where it has complied with antecedent steps that are only found in the OCNS system, but are not in the regulations?
“But, it seeks to take the benefits that it accrued from using that system up until the system allowed it to upload and capture, and it disavows the one step on the basis, that similar to those steps that are stipulated only in the explanatory documents, it is not in the regulations.
“We submit that therein lies the absurdity of the argument, and even when we interpret the provisions, the disenfranchisement follows only on account that the ANC failed to comply with the deadline,” said Motau.
The IEC’s representative argued that drawing comparisons between the online and in-person submission processes was nonsensical.
“What matters is whether you’ve complied with the requirements of the systems that you have opted for in its terms, and complied with the deadlines,” said Motau.
‘Rigid adherence promotes fairness’
Justice Rammaka Mathopo suggested that should it rule in the IEC’s favour, it may send a message that fundamental rights could be taken away “at the click of a button”.
Motau disagreed, stating that the issue is around whether the IEC had the power to prescribe electoral regulations and whether parties were allowed to be selective with which rules they followed.
“The message that the IEC, in contending that this court should, is that the power to prescribe a regulation does include the power to exhaustively list in that regulation the operational requirements of that electronic system.
“In circumstances where a party has used that system, complied with the requirements that are not listed in the regulation, cannot yield an outcome where it seeks to selectively isolate one of those issues that are not expressly stipulated.
“Prescribing requirements is an element of fairness. Insisting on rigid adherence promotes fairness,” Motau concluded.
Arguments by the DA’s legal team were to follow, with the court yet to confirm when a ruling could be expected.
