One click short: ANC ran out of time and didn’t press ‘submit’, says IEC - TimesLIVE

The Electoral Commission of South Africa (IEC) has pushed back on the ANC’s appeal before the Constitutional Court seeking to overturn the exclusion of the party in contesting in six municipalities.

The ANC, in a race against time, urgently seeks leave to appeal to the top court against the Electoral Court’s order, which dismissed the party’s appeal against the decision of the IEC to not accept the ANC’s nominations to contest in six municipalities due to failure to submit nominations before the deadline.

The litigation puts into the spotlight the commission’s requirements regulating the process of parties submitting nominated candidates on the commission’s online portal and whether such pass constitutional muster.

The top court’s judgment will set a precedent on the grounds on which a party can be disqualified in running for elections.

The ANC, led by Fikile Mbalula in the litigation, effectively challenges being unable to contest elections for proportional representation (PR) in four municipalities. It can only contest for ward councillors. In two municipalities it is not contesting wards or the proportional representation ballots in the November 4 municipal elections.

The ANC in its appeal asks the top court whether pressing “submit as final” is a condition of a valid electronic submission under the Municipal Electoral Act and regulations. The ANC was excluded from contesting in the six municipalities for failure to press “submit as final” nominations before the deadline.

The ANC argues a total of 2,274 candidates, from different parties, were captured on the system but were not finally submitted by the deadline and therefore excluded, affecting voters’ political rights in the affected municipalities.

IEC deputy chief electoral officer Akhtari Henning, in an affidavit before the top court, argues the Electoral Court’s judgment is final.

“Uploading and capturing nominations onto the [system] but without completing the last step of final submission does not constitute a submission or nomination in terms of the requirements of the law. This is the core finding of the Electoral Court. The court’s finding is unimpeachable,” Henning said.

He said the ANC’s litigation effectively challenges a decision taken by the commission in 2016 in regulating the submission of candidates contesting an election.

The litigation concerns the legal effect of a political party uploading candidate information to the IEC’s online candidate nomination system (OCNS) without clicking on the system’s “submit as final” function.

The substantive decision of the commission was taken in 2016, 10 years before this case arose, when the commission designed the OCNS to include the final submit requirement. The ANC accepted, consistently complied with and has never challenged that design decision until now.

Henning argues the ANC has for the past decade been aware of the commission’s rule that failure to click on “submit as final” constitutes an incomplete submission.

“The [online system] in turn makes it clear that in order for the forms to be ‘completed’ the ‘final submission’ button must be pushed. In other words, there is no ‘submission’ of lists and nominations without a final submission ― even if information has been captured and uploaded,” Henning said in asking the court to dismiss the appeal.

Henning argues the regulations expressly require a party wishing to submit PR lists and ward candidate nominations electronically to do so by “completing the electronic forms” on the commission’s online system. The Electoral Court found that by failing to click on “submit as final” the ANC did not complete the nomination submissions.

The ANC has been operating on the system for 10 years and has never challenged the requirement to click the “submit as final” button as a step of completing the nomination process.

“The substantive decision of the commission was taken in 2016, 10 years before this case arose, when the commission designed the OCNS to include the final submit requirement. The ANC accepted, consistently complied with and has never challenged that design decision until now.”

The Electoral Court in dismissing the ANC’s case found that the requirement to click “submit as final” was important to confirm a political party’s final decision on the list, because before that step a candidate can be withdrawn from a party’s list.

“Until ‘submit as final’ is clicked, nominations remain provisional, capable of amendment, replacement or withdrawal. Only the clicking of that function communicated to the Electoral Commission that the party had finalised its nominations and intended them to be treated as its official nomination,” the court found.

Henning argues the ANC was aware of the requirement to click submit as a final step for nominations to be considered.

“The ANC knew that final submission was a requirement. First, the commission repeatedly emphasised the OCNS requirement to make a final submission, including at various training sessions across the country. The ANC representatives attended these meetings.”

The ANC complied with the requirements in 251 municipalities. Henning argues the reason the ANC could not comply with requirements in the six municipalities was because it ran out of time and stands to be disqualified for failure to meet the deadline.

“But why did it not do so for the six in issue? The ANC blames technical problems with the systems. It still does so in this court. But it has provided no evidence of such problems whatsoever.

“And the commission has shown the OCNS was working. The ineluctable inference to be drawn from all objective evidence is that the ANC simply ran out of time.

“By leaving the final submission step to the last moment for a number of municipalities, it could not complete the process.”