The Association of Mineworkers and Construction Union-linked (Amcu) Labour Party of South Africa has initiated a legal battle to force the Independent Electoral Commission (IEC) officials to include this party on the general election ballot paper and for President Cyril Ramaphosa to postpone the May 29 vote.
Christoffel Pieter Janse van Rensburg, who goes by the title of the party’s nominated secretariat, has led the start-up Labour Party to the doors of the Constitutional Court in Braamfontein, Johannesburg.
He seeks direct access to argue his case before the justices sitting on the benches of the country’s apex court.
In March, the party lost an application before the Electoral Court to force the IEC to extend the deadline for the submission of nominations.
However, the party finds solace in the findings of a minority judgment in the same matter, which it uses as a bedrock for the latest Constitutional Court challenge.
In the minority judgment on March 9, professor Phooko and acting judge Shongwe differed with three colleagues on the bench, finding that the Labour Party was not to blame for its failure to meet the deadline stipulated in the election timetable for the submission of its lists of candidates.
Complaints cannot be dismissed
The minority ruling, written by Phooko, found that “the digital divide is, on the one hand, the gap between individuals with, inter alia, skills to use technology and, on the other hand, those without or limited expertise”.
“I am of the view that the complaints by the applicants cannot simply be dismissed as being their fault,” said Phooko.
“To the contrary, they suggest that there is more that needs to be done to achieve digital literacy and realise the right to political participation in the digital era.
“We need an inclusive process that will ensure that members of our society are not left behind in this period of the digital world.
“The new systems should strive towards inclusivity to enable everyone to participate fully in the electoral process at all stages. The processes must create an environment that does not place doubt on our democratic processes.
“Considering the above exposition, I am of the view that the challenges encountered by the applicants, ranging from the virtual training to the actual use of the portal, and their exclusion [and their members] in this process, have the potential to raise a doubt as to whether or not the elections were free and fair.”
Digital divide threatens disenfranchisement
On the back of these findings, Janse van Rensburg told the Constitutional Court that the Labour Party sought “to vindicate its right and the rights of its members and potential supporters to free and fair elections in a time when a fundamental digital divide has become entrenched in our country, to the disadvantage of those insufficiently well-resourced to cross the divide”.
“This digital divide not only threatens democratic processes but, coupled with an electoral timetable that is extremely condensed and makes wholly inadequate allowance for adverse events, threatens the disenfranchisement of a multitude of people,” Janse van Rensburg argued in court papers filed on Thursday last week.
He said the party’s inability to formally satisfy the set electoral requirements due to technical difficulties experienced with the IEC portal could no longer be cured by the extension of the timelines in the electoral timetable but by the postponement of the election date so as to allow the IEC to publish a new election timetable.
“The Labour Party has been left with no alternative but to bring this urgent application for direct access to the Constitutional Court,” he said.
