Setumo Stone | ANC’s likely heads of argument before Electoral Court

The African National Congress (ANC)’s urgent application to the Electoral Court represents a politically sophisticated attempt to reframe an administrative near-miss as a constitutional crisis. It is, in essence, a battle over the definition of a single word – “submitted” – and whether a software button can carry more weight than the law that governs it.

The core of the ANC’s argument is as legally precise as it is politically strategic. Rather than relying on a conventional “technical glitch” defence, which would place the party at the mercy of system logs and user-error accusations, the application elevates the dispute to a matter of statutory interpretation.

READ: ANC’s court papers thin on proof of IEC glitch, strong on legal technicality

The party’s central proposition is that by completing the electronic forms and uploading the required documents, it had already fulfilled its obligations under sections 14 and 17 of the Municipal Electoral Act. The “submit as final” button, it argues, is a feature of the Electoral Commission’s (IEC) software, not a requirement found in legislation or regulations.

A strategic reframing

This reframing is the application’s greatest strength. It allows the ANC to present its case not as a plea for leniency, but as a defence of democratic participation. The party places considerable weight on the ideas that electoral participation should be promoted over restriction, that substance should prevail over procedural technicality, and that administrative software cannot create legal requirements that were never prescribed.

The strategy is to redefine the decisive political act. Under the IEC’s approach, the act is pressing “submit as final”. Under the ANC’s approach, the act is placing complete, retrievable information inside the IEC’s system. As the analysis notes, this shifts responsibility for the failure from the political party to the institution controlling the system and reframes the consequence from excluding a non-compliant party to disenfranchising voters.

The timing of the alleged omission is critical to its political danger. Occurring at the final candidate deadline, shortly before the November election, and amidst internal disputes over candidate selection, the incident has become evidence, fairly or unfairly, of institutional incapacity. The scandal’s force lies less in clicking or failing to click a button than in the proximity between the act and irreversible electoral consequences.

Tensions in the argument

The application’s coherence, however, contains a significant tension. The ANC calls the dispute “purely a question of law” with “no foreseeable disputes of fact”, yet simultaneously alleges that the IEC system logged its administrators out and prevented final submission. That allegation is factual, requires proof from system records, and is likely to be contested.

The analysis correctly identifies this as the application’s weakest point. The ANC champions a coherent narrative – that it completed everything required by law, and an unlawful software formality caused exclusion – more strongly than it demonstrates technical truth. The filing does not reproduce the decisive logs or an expert technical report. This matters because the proposition that the system prevented final submission requires evidence of malfunction and causation.

The electronic record emerges as the most powerful, yet voiceless, actor in this dispute. It has no political voice, but it can determine whether the ANC’s account is fact or reconstruction. The IEC’s own logs may carry greater weight than either institution’s public statements.

The pursuit of institutional control

This is fundamentally a struggle over institutional authority rather than corruption or mere incompetence. There is no evidence in the filing of bribery or personal enrichment. Instead, it is a struggle over administrative power – how the IEC’s system organises political participation by converting statutory rules into electronic steps.

The ANC invests substantial effort in controlling the question before answering it. It does not want the court to ask why it failed to press the final button before the deadline; it wants the court to ask whether legislation requires a party to press a software button after complete information has already been entered.

READ: Mbalula warns ANC members against blame over party’s IEC botch job

If the first question governs, the ANC appears negligent. If the second governs, the IEC must identify the legal source of the additional requirement. This reframing is the application’s greatest political and legal strength.

The coalition of interests behind the application is also noteworthy. The ANC is behaving less like a family absorbing a collective failure and more like a coalition of national officials protecting the organisation’s electoral position, provincial structures seeking representation, candidates protecting access to office, and internal rivals who may use the failure against the secretary-general. This coalition is strong, while all groups need the court to restore the nominations, but it may weaken sharply if the appeal fails or the logs disclose party error.

A high-stakes gamble

Ultimately, the ANC’s application is a high-stakes gamble. Its strongest case is that the legislation and regulations appear to define electronic submission through completing forms and uploading annexures, without expressly mentioning a separate “submit as final” action.

Its success will depend on whether the court accepts that uploaded and retrievable information was legally submitted, a proposition that would have significant implications for the IEC’s authority. Its credibility will depend on whether the electronic record confirms that the IEC system, rather than the ANC’s own conduct, caused the failure. A recent Electoral Court judgment rejecting a similar UDF bid found that the IEC has no statutory power to condone a missed deadline, narrowing the ANC’s options unless it can prove its submission was technically complete in time.

The constitutional argument may be legally valid even though it serves the ANC’s survival. Equally, invoking voter rights does not itself prove that the statutory requirements were met.

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Setumo Stone