The African National Congress (ANC) has challenged the legality of the Electoral Commission of South Africa’s (IEC) electronic candidate nomination process, arguing that a software requirement has put its candidates’ political rights and voters’ choices at risk ahead of the November 4 local government elections.
The party approached the Constitutional Court after the Electoral Court dismissed its challenge to the exclusion of 181 councillor candidates whose nominations were not finalised before the IEC’s August 28 deadline.
Representing the ANC, advocate Daniel Burger argued on Monday that the commission could not rely on a button in its online nomination system to exclude candidates when the requirement was not expressly set out in electoral legislation.
“Because the fact of pressing a button or not, this disenfranchises people. And where I’m sitting, goes against the grain of a person’s right to vote, and what the Constitution is all about. Indeed, and the right to stand for office. All the rights in Section 19 of the Constitution. And nowhere is this button in any legislation, gazetted notice, it is just a functionality button,” Burger told the court.
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He said the requirement to click “submit as final” did not appear in the Electoral Act, the regulations, a Government Gazette notice or the election timetable.
Burger argued that accepting the button as a legal requirement would give the IEC the power to change the conditions for submitting nominations through adjustments to its software, without formally changing the law.
“The bigger problem, of course, is that it’s open to the electoral commission to change that functionality at any time without publication in the Government Gazette,” he said.
“And so, if that is part of the law, it’s actually open to the Electoral Commission to change the law from time to time as it sees fit. That cannot be a plausible interpretation.”
The ANC’s case is that it had entered its candidates’ details, uploaded supporting documents and paid the required deposits before the deadline. It argues that the information held on the commission’s system should have counted as its final submission when the deadline expired, even though the final confirmation step had not been completed.
At the heart of the dispute is whether the commission can treat the failure to complete that step as sufficient grounds to prevent candidates from contesting an election, despite the information needed for their nominations already being available on the system.
Burger linked the dispute to section 19 of the Constitution, which protects political rights, including the right to make political choices and stand for public office. He argued that the exclusion of candidates also affects voters who might wish to support them.
The judges questioned whether nominations uploaded before the deadline could be regarded as final once the cut-off time passed, or whether a party had to take a separate step to confirm that it intended to contest with those candidates.
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The bench also examined the difference between nominations submitted electronically and those delivered physically to the IEC.
Justices of the ConCourt questioned why a physical nomination handed to the commission before the deadline could be treated as final once the cut-off time passed, while information already uploaded electronically would remain incomplete if the party had not clicked the final submission button.
Burger’s argument was that the deadline prevented parties from making further changes, meaning the information available at that point should be treated as the final version of their nominations.
During the hearing, Burger also referred to the party’s attempts to resolve the matter before the deadline. He told the court that the ANC had contacted the IEC’s help desk during the final half-hour of the submission period to report difficulties with the button.
He said the commission’s affidavit acknowledged that a call had taken place and did not contradict the ANC’s account of the conversation. The alleged technical difficulties remain disputed, however, and the fact that a call took place does not by itself establish that the system malfunctioned.
The Electoral Court previously found that the final confirmation step formed part of the electronic nomination process and that the ANC’s failure to complete it meant the affected nominations were invalid.
- The ANC challenged the legality of the IEC's electronic candidate nomination process, arguing that a software "submit as final" button was not stipulated in electoral legislation and put candidate nominations at risk.
- The ANC approached the Constitutional Court after the Electoral Court dismissed its challenge concerning the exclusion of 181 councillor candidates whose nominations were not finalized before the IEC’s August 28 deadline.
- Advocate Daniel Burger argued that reliance on the button to exclude candidates disenfranchises political rights protected under Section 19 of the Constitution and allows the IEC to alter nomination conditions without formal legislative changes.
- The central dispute is whether nominations uploaded before the deadline, but not finalized by clicking the button, should be valid since parties uploaded details, supporting documents, and paid deposits on time.
- The ANC reported difficulties with the IEC’s nomination system button before the deadline, contacting the commission's help desk, but the technical malfunction remains disputed.
