The high-stakes legal standoff between the ANC and the Electoral Commission of South Africa (IEC) turns on a crucial technical distinction: whether there is a difference between capturing a candidate’s data and formally submitting it.
Court documents filed by the party in the Electoral Court reveal that 2,274 candidate profiles, comprising 1,794 ward candidates and 480 proportional representation candidates across dozens of political parties, were uploaded to the IEC's Online Candidate Nomination System (OCNS) before the deadline, yet failed to register as final submissions.
The ANC said this means the dispute is not confined to its own candidates. The party's appeal in the Electoral Court comes after the IEC stated that the candidate profiles that were not submitted as final by the deadline were excluded from standing in the November 4 local government elections.
The ANC's affected candidates are in six municipalities: Sundays River Valley, Walter Sisulu, Ingquza Hill and Port St Johns in the Eastern Cape, uMshwathi in KwaZulu-Natal and Mangaung Metropolitan Municipality in the Free State.
The affected submissions include proportional representation lists in all six municipalities, as well as ward nominations in Ingquza Hill and Port St Johns.
According to its court papers, before 5pm on August 28, the ANC said it had completed the OCNS forms and uploaded the required supporting documents for all the councils and wards it intended to contest.
“The OCNS had thus received all required information and documents in respect of the affected submissions before the deadline,” the papers state.
The problem, the ANC said, came when it tried to complete the final submission.
- At 4.34pm, its administrators were logged out of the OCNS and returned to the landing page.
- At 4.35pm, they tried to report the problem to a responsible IEC official, who returned their call at 4.40pm.
- At 4.57pm, the ANC said, its administrators were again logged out and returned to the landing page.
- The party said the technical difficulties prevented it from pressing the “submit as final” button on the affected submissions by the 5pm deadline.
The ANC said it is not seeking to add candidates after the deadline, but it wants the court to declare that all information and supporting documents that had already been captured and uploaded before the deadline was validly submitted. It also wants the court to direct the IEC to include these candidates in its final lists for the November election.
The IEC has yet to respond to the ANC's court papers. It earlier rejected the ANC’s technical-glitch argument and maintained that its system was functioning.
On September 1, the IEC held a meeting of the National Political Liaison Committee where Chief Electoral Officer Sy Mamabolo told political parties that the Commission had considered the status of candidates captured on the OCNS but which were not reflected as having been submitted as final.
The Commission decided that the affected parties “have not submitted candidates in respect of [those] wards and municipalities”.
IEC chairperson Mosotho Moepya confirmed the position at a media briefing on September 2.
The ANC's legal argument turns largely on what it means to “submit” a candidate. The Municipal Electoral Act does not define “submit” or “submitted”, the ANC argued. Section 19(2), it says, provides that where a data message is involved, those words include the action by which submission is effected.
The ANC argued that the relevant regulations require the completion of the prescribed forms and the uploading of the required annexures. It said those steps had been completed before the deadline.
The party also relies on section 23(b) of the Electronic Communications and Transactions Act, which provides that a data message “must be regarded as having been received by the addressee when the complete data message enters an information system designated or used for that purpose by the addressee and is capable of being retrieved and processed by the addressee”.
The ANC argued that the OCNS was precisely that system because it was designated by the Commission for the electronic submission of candidate documents.
Its argument is that once the completed information entered the Commission’s system and could be retrieved and processed, it had been received.
The ANC also argued that the Electoral Commission has a duty to interpret and administer electoral law in a way that promotes participation rather than exclusion.
Section 2 of the Municipal Electoral Act, the ANC said, requires the Act to be interpreted and applied in a manner that gives effect to the constitutional declarations, guarantees and responsibilities.
It further said that Section 4(2) required the Commission to administer the Act “in a manner conducive to free and fair elections”.
The ANC said these are duties, not matters left to the Commission’s discretion.
It relies on Constitutional Court authority which says the constitutional values underpinning elections require courts and the Electoral Commission, when interpreting electoral legislation, to “seek to promote enfranchisement rather than disenfranchisement and participation rather than exclusion”.
The ANC said its compliance should not be judged through a narrowly technical reading of the legislation but the proper enquiry is “whether what the applicant did constituted compliance with the statutory provisions viewed in the light of their purpose”.
The party argued that the purpose of sections 14 and 17 of the Municipal Electoral Act is “to ensure that candidate[s] and political parties contesting elections declare their intentions to do so by a certain date and provide the Electoral Commission with the necessary information to enable them to organise the elections”.
Measured against that purpose, the ANC said it complied.
The ANC also argued that the Constitutional Court’s decision in the 2011 case of the Inkatha Freedom Party (IFP) does not defeat its case.
In that matter, the court found that the party had not complied with the nomination requirements because its documents had been submitted to the wrong office. The documents had not reached the prescribed destination at all.
The ANC said its case is different because its documents went through the electronic system designated by the Commission for receiving nominations and, it argued, were already in that system before the deadline.
The party is also asking the IEC to examine its electronic records to establish exactly what happened before 5pm on August 28.
It wants the Commission to look at upload timestamps, login histories, user-session records, error logs, attempted submissions and other system records.
The Electoral Court is due to hear the ANC’s case on September 15. It is not clear when a decision may be made but the IEC is scheduled to release the final compiled candidate lists on September 16.
wendy.jdc@nationalmg.co.za