No Aces to play — Magashule’s party among five to lose critical candidate lists court bid

While ACT was unable to upload all their Parliamentary candidates, they will still be appearing on the ballot.

They managed to get the name of Magashule as well as 10 other candidates onto the IEC's system for the National Assembly.

The final lists published by the commission indicated that they have 6 candidates from the Eastern Cape, 14 from the Free State, a single candidate from Gauteng, eight from the Northern Cape, and 10 candidates from the Northern Cape.

The Electoral Court ruled that four political parties and an independent candidate have failed to comply with the election timetable by not submitting National Assembly and Provincial Legislatures lists. The deadline for political parties, as well as independent candidates looking to contest, was set for 8 March.

A majority of the judges sitting at the Electoral Court, namely Leicester Adams, Dumisani Zondi and Prof Nomthandazo Ntlama-Makhanya were in favour of this judgment.

The applicants in the matter were the Labour Party of South Africa, established by the Association of Mineworkers and Construction Union (Amcu), registered political parties including expelled ANC secretary general Ace Magashule’s African Congress for Transformation (ACT), Afrikan Alliance of Social Democrats (AASD), All African Allied Congress (Aaac) and an independent candidate Sipho Malapane.

“All of the applicants failed to comply with the Election Timetable for the Election of the National Assembly and the Election of Provincial Legislatures (timetable) promulgated in terms of s20 of the Electoral Act 1 by the respondent, the Electoral Commission (Commission) in these applications. Most of the applicants fell foul of item 9 in that they had failed to meet the deadline prescribed….” the judgment reads.

Joseph Mathunjwa (centre) at the launch of Amcu's Labour Party of South Africa in Braamfontein. 7 March 2024. (Photo: Ed Stoddard)

Technical difficulties

The applicants in this matter made a submission that the Online Candidate Nomination System (OCNS or portal) of the Electoral Commission of SA (IEC) where the candidates were supposed to be submitted made it impossible for them to comply with the requirement to upload on time.

In particular, ACT claimed to have encountered technical difficulties which meant the IEC’s system was “not fit for purpose”.

The Electoral Court believes that there is enough evidence to demonstrate that the OCNS did not malfunction on 8 March 2024.

“What is also instructive is that before 8 March 2024 ACT never reported any issues with the OCNS. Its first complaint was a phone call to the Commission at 14:00 on 8 March 2024.

“This, in my view, lends credence to the version of the Commission that there was nothing wrong with the OCNS. The difficulties arose from the lack of preparation on the part of ACT and the fact that they left their submission of the requisite documentation until the very last minute,” it reads.

The majority judgment further refutes these claims and sets out that the applicants have themselves to blame for the fact that they did not meet the prescribed deadline.

“This point is confirmed, according to the Commission, by the fact that the vast majority of political parties, as well as independent candidates, had no difficulty using the OCNS. The system, so the case on behalf of the commission goes, was reasonable and user-friendly as demonstrated by the fact that several unrepresented political parties used it to submit the details of their supporters, nominate candidates and make payments.

“Dozens of represented political parties also used the OCNS to nominate candidates and make payments – about 87 parties (of which 76 are ‘unrepresented’) and 24 independents were able to comply with the provisions of s 27 of the Electoral Act by using the portal,” according to the judgment.

Read more in Daily Maverick: 2024 elections hub

Time constraints

The other complaint which came to the fore was that the Labour Party was aggrieved by the short time they had to upload all details onto the system.

The court looked at whether there was anything unlawful within the time limit and the strict enforcement thereof by the IEC. It also considered whether the elections would not be free and fair as a result of the applicants being excluded from contesting the elections.

The judgment states that there was nothing untoward with the duration given to parties to make submissions.

“The simple point of the Labour Party matter is that it did not comply on time. That was not a result of the OCNS or the Commission’s conduct, but the fact that it left compliance to the last minute and then ran out of time. It only captured its first candidate just 36 minutes before the deadline at 16:24 on 8 March 2024,” the judgment reads.

The judgment also states that it would not be fair for the IEC to allow anyone to deviate from the set timetable.

“It is inherently unfair to parties and candidates that complied with a deadline to permit the alteration of that deadline, especially to where the alteration is for purposes of suiting the convenience of a party that failed to comply with the deadline purely in consequence of subjective factors. It would come at a cost to political parties and independent candidates who have planned their campaigning based on the proclaimed date and who have not been cited in these proceedings,” it reads.

The fourth applicant (All African Allied Congress) and fifth application coming from the independent candidate were dismissed simply on the basis that there were no sustainable causes of action.

Dissenting view

Judges Retselisitsoe Phooko and Zwelibanzi Shongwe ruled that the Labour Party, Act and ASSD should be granted relief.

“Their written judgment considers evidence before this Court shows that the applicants had aired their dissatisfaction with the respondent about their challenges when using the portal.

“They note that there were complaints during the virtual presentation by the IEC where they could not ask questions and/or get a clear explanation about how the portal worked.

“The Commission’s submission was that the applicants merely needed one day to complete the registration process. However, the applicants’ testimony is that they hired a private venue and had at least dedicated two days with the assistance of several volunteers to upload the information on the portal.

“However, they were unsuccessful. In my view, the submission to the effect that then applicants only needed one day to upload the information on the portal cannot be sustained without more,” the statement reads.

The judgment sets out that applicants were adequately equipped to use the online system and their complaints be “dismissed as being their fault”.

“Considering the above exposition, I am of the view that the challenges encountered by the applicants ranging from the virtual training, the actual use of the portal, and their exclusion (and their members) in this process has the potential to raise a doubt whether or not the elections were free and fair,” it reads. DM