ANC heads to Concourt in next round of IEC registration fight

The ANC has now taken its chances at the Constitutional Court in its battle to restore councillor candidates excluded from six municipal ballots, arguing that the dispute with the Electoral Commission goes beyond an online registration process and raises constitutional rights.

In papers filed after the Electoral Court dismissed its appeal, the party says the fight over the IEC’s “submit as final” button implicates political rights, South Africa’s founding democratic values, the constitutional limits of the commission’s powers and the duty of courts to interpret electoral law in favour of participation rather than exclusion.

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The ANC wants the Constitutional Court to hear the appeal directly from the Electoral Court instead of first going through the Supreme Court of Appeal, arguing that the November 4 elections leave little room for another round of litigation.

Secretary-general Fikile Mbalula says the case implicates section 19 of the Constitution, which protects citizens’ rights to participate in political parties, vote, stand for public office and take part in free and fair elections.

The party says the ruling determines whether the ANC may contest six municipalities, whether 181 members may stand for office and whether voters may vote for their party of choice.

Constitutional rights at stake

Its second constitutional ground relies on section 1, which entrenches universal adult suffrage, regular elections and a multiparty system of democratic government as founding values.

“A construction of electoral legislation which removes a party from the ballot in municipalities where it holds a majority bears directly upon multi-party democratic choice,” the ANC argues.

The third ground goes to the IEC’s power. The ANC says sections 181 and 190 require the commission to manage elections in accordance with national legislation and ensure they are free and fair.

It asks whether the IEC may create a condition for a valid nomination through the design of its computer system rather than through regulations published in the Government Gazette.

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The ANC says that question concerns “the constitutional limits of that mandate and the principle of legality”.

Its fourth ground is how electoral laws must be interpreted. The party argues that the Constitution requires courts and the IEC to promote enfranchisement rather than disenfranchisement, and participation rather than exclusion.

“The appeal asks whether the Electoral Court honoured that constitutional injunction,” Mbalula says.

But getting the dispute before the Constitutional Court also requires the ANC to explain why it should bypass the SCA.

Why ANC wants ConCourt now

The party accepts an SCA appeal is legally possible but says the Constitutional Court should hear the case now because the issues affect hundreds of thousands of voters, raise a discrete legal question and are urgent.

It argues there would be limited value in first approaching the SCA because whichever side lost, they would probably seek further leave to appeal to the Constitutional Court, creating further delay before election day.

The ANC also relies on the wider reach of the ruling. According to commission figures, 2,274 candidates from 45 parties were captured on the IEC system but not finally submitted before the deadline.

It says no South African court has authoritatively decided what constitutes electronic submission of a nomination or whether IEC software can impose a condition of validity not prescribed by regulation.

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The party says time is a problem.

“If this Court does not determine the matter now, the question will be settled for this election by default, and the voters of the affected municipalities will bear the consequence,” the application says.

The Constitutional Court must now decide whether the ANC has opened the constitutional door wide enough to be heard before deciding whether its candidates should return to the ballot.

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