In its Electoral Court application over councillor nominations not being captured in the system of the Electoral Commission of South Africa (IEC) by the deadline last Friday, the ANC must establish the facts supporting its relief on a balance of probabilities.
The main governing party’s evidence does not have to include a single decisive “smoking gun”. A court can draw conclusions from circumstantial evidence. But the inference advanced by the ANC must be more probable than the competing explanations.
READ: ANC’s court papers thin on proof of IEC glitch, strong on legal technicality
Evidence about what happened during the attempted submission should ordinarily come from people with personal knowledge. Statements depending on what unnamed administrators told Mbalula may be challenged as hearsay unless properly confirmed or admitted in the interests of justice.
Electronic records are admissible. Their reliability and weight must still be established. The court would consider how the records were generated, whether they were preserved accurately and whether their source can be identified.
The ANC also cannot assume that the IEC’s technical material will become available through ordinary discovery. Discovery is not automatic in urgent motion proceedings. If the ANC requires specific IEC records, it must use an available procedural mechanism to obtain them or ask the court for appropriate directions.
The precedent against the ANC
The Constitutional Court rejected similar complaints in the 2024 case involving the Labour Party, the African Congress for Transformation and the Afrikan Alliance of Social Democrats.
The court noted the absence of screenshots, videos and expert reports supporting allegations that the online system had malfunctioned. It found that the platform was functional and that the parties were responsible for their own failures.
The ANC seeks to distinguish that case.
It says its candidate information was fully uploaded before the deadline. It also relies on the number of parties whose nominations were captured but not finalised and on its alleged report to the IEC before 5pm.
These differences may justify closer scrutiny. They do not remove the requirement to prove that the ANC completed the prescribed steps or that an IEC failure caused its inability to finalise the process.
The UDFP judgment
The Electoral Court recently rejected an attempt by the United Democratic Front Party to submit nominations after the deadline.
The court held that the IEC cannot exempt one party from a statutory deadline that remains binding on everyone else. It may amend the election timetable generally where this is necessary for a free and fair election. It cannot grant an individual extension merely because a party failed to comply.
READ: Parties warn IEC against doing ‘favours’ for ANC regarding list submissions
That judgement does not automatically decide the ANC’s case.
The UDFP accepted that it had not submitted its nominations on time and wanted additional time. The ANC says its information was submitted in time and that the dispute concerns the legal effect of information already inside the IEC’s system.
If the court finds that the final-button step was legally required, the ANC will probably be treated as having missed the deadline. The IEC would then lack the power to excuse it individually.
If the court finds that completing the forms and uploading the documents constituted submission, there would be no late submission to condone.
The balance of the case
The ANC has evidence that its candidate information entered the IEC’s system before the deadline. It also presents a contemporaneous timeline suggesting that its administrators experienced difficulty in the final minutes.
It has not yet produced direct technical evidence proving that the IEC caused those difficulties.
The IEC’s figures support an inference that the problem affected several online users. They do not establish a system failure. The ANC’s administrator evidence and the IEC’s technical records would be more important in proving that claim.
The ANC is, therefore, stronger on the meaning of “submitted” than on the alleged glitch.
Its case is likely to turn on whether the law required it to press the final button or whether uploading complete and retrievable information was enough.
If the button was legally essential, the evidence presently available may leave the ANC short. If it was merely an administrative feature of the IEC’s software, the absence of a final confirmation may not defeat the nominations.
- The ANC must prove on a balance of probabilities that its councillor nominations were captured by the IEC's system before the deadline, relying on evidence that is more probable than competing explanations.
- Evidence from people with personal knowledge is preferred in the ANC's case, while hearsay evidence must be properly confirmed; electronic records are admissible but their reliability must be established.
- The Constitutional Court previously rejected similar complaints in a 2024 case involving other parties, finding the IEC platform functional and placing responsibility on parties for their own submission failures.
- The Electoral Court rejected a late nomination submission attempt by the United Democratic Front Party, confirming that the IEC cannot grant individual deadline extensions but may amend the election timetable generally.
- The ANC's case largely hinges on whether the legal requirement was to press a final button to submit nominations or whether uploading complete documents sufficed, with current evidence stronger on the latter than proving an IEC system failure.
In its Electoral Court application over councillor nominations not being captured in the system of the Electoral Commission of
READ: ANC's court papers thin on proof of IEC glitch, strong on legal technicality
Evidence about what happened during the attempted submission should ordinarily come from people with personal knowledge. Statements depending on what unnamed administrators told
Electronic records are admissible.
It says its candidate information was fully uploaded before the deadline. It also relies on the number of parties whose nominations were captured but not finalised and on its alleged report to the IEC before 5pm.
READ: Parties warn IEC against doing ‘favours’ for ANC regarding list submissions
If the court finds that the final-button step was legally required, the ANC will probably be treated as having missed the deadline.
If the court finds that completing the forms and uploading the documents constituted submission, there would be no late submission to condone.
It has not yet produced direct technical evidence proving that the IEC caused those difficulties.
Its case is likely to turn on whether the law required it to press the final button or whether uploading complete and retrievable information was enough.
If the button was legally essential, the evidence presently available may leave the ANC short. If it was merely an administrative feature of the IEC’s software, the absence of a final confirmation may not defeat the nominations.
