IEC victory as Ace Magashule’s party, two others, lose critical candidate lists ConCourt bid

Ace Magashule’s African Congress for Transformation (ACT), the Labour Party and the Afrikan Alliance of Social Democrats have been unable to convince the apex court to order the Electoral Commission to amend the election timetable to allow their candidates to contest the polls.

IEC victory as Ace Magashule’s party, two others, lose critical candidate lists ConCourt bid

The Constitutional Court has dismissed an urgent bid by small parties to contest the 29 May polls, after they failed to comply with the provisions of section 27 of the Electoral Act regarding the submission of candidate lists before the required deadline.

On Friday, the Constitutional Court dismissed applications by the Afrikan Alliance of Social Democrats (AASD) and corruption-accused former ANC secretary-general Ace Magashule’s African Congress for Transformation (ACT) for leave to appeal an Electoral Court judgment of 15 April. The Electoral Court had found they failed to comply with the election timetable by not meeting the deadline for the submission of their full candidate lists.

The Constitutional Court also dismissed an application by the newly formed Labour Party for direct access.

This means the Labour Party and the AASD are excluded from contesting the elections. However, while ACT was unable to upload all its candidates for the National Assembly, it — and its leader — it will still be appearing on the ballot,  but the Party will only be able to contest in the regions where it managed to submit its candidate lists by the deadline.

The court said it would provide reasons for the orders “in due course”.

The cases brought by the Labour Party, aligned to the Association of Mineworkers and Construction Union (Amcu), the AASD and ACT were heard in tandem before the apex court on Wednesday.

The three political parties sought the court’s urgent intervention, claiming that technical malfunctions in the IEC online registration system barred them from registering on time, rendering them ineligible to contest the May 29 polls.

The IEC had opposed all three applications.

The case had the potential to affect the 29 May election date if the Constitutional Court agreed with the parties that the Electoral Commission of South Africa’s (IEC) election timetable was unfair and set it aside.

The political parties had first approached the IEC with a request to extend the 8 March deadline for them to file their lists of candidates. After the commission refused the extension of the deadline in the election timetable, the parties approached the Electoral Court to review this decision.

On 15 April, the Electoral Court dismissed the parties’ applications, concluding that the commission’s insistence on compliance with the deadlines in the election timetable was not unlawful. It found there was enough evidence to show that the commission’s online registration system did not falter on 8 March.

Magashule’s ACT and AASD applied to the Constitutional Court to appeal the Electoral Court’s decision of 15 April, with ACT asking the court to order the re-opening of the IEC’s online registration system to allow it to submit its full list of candidates.

Ace Magashule at the unveiling of his political party African Congress for Transformation in Soweto. 30 August 2023. (Photo: Felix Dlangamandla)

While ACT was unable to upload all its candidates for the National Assembly, it will still be appearing on the ballot. However, it will not be on the ballot in all provinces.

The Labour Party did not appeal but applied to the Constitutional Court for direct access. The party wanted the court to declare its exclusion from the elections on the grounds that it failed to meet the deadline to be inconsistent with the Constitution and unlawful. It also sought a consequent postponement of the polls.

The IEC had argued that the court should refuse the Labour Party direct access and should dismiss the AASD and ACT’s applications for leave to appeal “because there are no prospects for success and it is not in the interests of justice”.

It said it was not the first time that the commission’s online candidate nomination system (OCNS) had been used, as it was first used in the 2019 general elections and again in the 2021 local government elections.

The IEC said postponing the elections would cost the commission an estimated R500,000.

In a statement following the ConCourt’s order, Labour Party secretariat Krister Janse van Rensburg said the party was “baffled by this judgment.”

“For the apex court of this country to disregard our application which was supported by 19 other political parties, is almost unbelievable,” he said.

Janse van Rensburg said the party would await detailed reasons for the judgment before commenting further on the matter.

Advocate Chris Loxton, representing the party, had argued that the “fatal flaw” of the IEC’s argument that the online system worked well for other parties, was that 35% of parties were unable to upload their information by the 8 March deadline.

“35% is not a small minority, and 65% is not a vast majority,” said Loxton, arguing that this showed the system didn’t function as it was supposed to.

However, the judges questioned this argument, with Justice Steven Majiedt saying that the figure of 35% needed to be interrogated because, according to the IEC, these parties may have registered but never attempted to upload information, or they may have left everything to the last minute.

The IEC had not responded to a request for comment at the time of publication. DM