A Constitutional Court order has overturned the Electoral Commission of South Africa’s decision to exclude 181 ANC candidates from the upcoming local elections, but the ruling leaves the commission facing unresolved questions about the treatment of 2,093 other candidates from 44 parties who remain off the ballot.
The order, delivered by justice Rammaka Mathopo and endorsed by a majority on Thursday, set aside an Electoral Court judgment that had dismissed the ANC’s appeal against the IEC’s refusal to accept its nominations in six municipalities: Sundays River Valley, Walter Sisulu, Ngquza Hill, Port St Johns, uMshwathi and Mangaung. The court has not yet handed down its reasons.
The dispute traces back to the commission’s online candidate nomination system. The ANC failed to click a “submit as final” button after uploading its documents before the deadline on August 28, and the IEC excluded the party’s candidates as a result. During the hearing, advocate Daniel Berger, appearing for the ANC, argued that the commission had removed the candidates on the basis of a rule that appears neither in the Municipal Electoral Act nor in its regulations, meaning the decision carried no legal effect.
For the IEC, the immediate consequence is logistical and administrative. Chair Mosotho Moepya told Business Day the commission would reprint ballots in the six affected municipalities without delay. “We will reprint with immediate effect. That is what we are required to do,” he said. “For now, we have to get the election on the way and that is really what is important.”
Moepya also accepted the court’s finding on the commission’s conduct. “There has been an issue of whether we applied the law or whether we did not apply the law properly. The court said we did not apply the law properly. So we take that,” he said.
The commission’s obligations, however, run only as far as the order itself. Moepya said the IEC would abide by the judgment in respect of the ANC alone, noting that the court had declined to deal with the position of the other excluded candidates. “This court has spoken and the court said we must include the ANC candidates. This court has refused to deal with the other matter. We are dealing with this court case,” he said. It remains unclear whether the circumstances of the other 2,093 candidates from 44 parties mirror the ANC’s.
That gap is where legal observers see risk. Koos Malan, emeritus professor of public law at the University of Pretoria, warned that the order could prompt further litigation against the commission from the excluded candidates. “This could possibly open a can of worms [for the IEC],” he said, adding that the risk of additional legal challenges was real and could disrupt the election in its entirety. In his view, the court could rule only on the dispute placed before it, and the predicament of the 44 other parties was left unaddressed.
Meanwhile, political pressure on the commission is building. Afrika Mayibuye, the party led by Floyd Shivambu, has called on the IEC to identify parties whose circumstances match the ANC’s and add them to the ballot before the deadline. “No affected party should be forced to institute repetitive and costly litigation merely to obtain equal application of a principle already determined by the Constitutional Court,” the party said in a statement on Thursday.
The judgment also reverberated through the government of national unity. ANC secretary-general Fikile Mbalula, who faced blame within the party for the nomination failure, criticised the DA for opposing the ANC’s appeal and said the party would review the DA’s place in the coalition. “There are matters that this movement will now have to sit down and discuss,” he told media after the judgment. “One of those matters is our partners in the government of national unity. That is the DA. We must review the DA in the government of national unity. There is nothing that binds us with the DA forever in the GNU.” Mbalula, overcome with emotion during his address, had to be assisted from the courtroom.
By contrast, DA federal council chair Ashor Sarupen responded that the judgment raises serious concerns about the precedent it sets for compliance with the IEC’s deadlines and requirements. “We note Fikile Mbalula’s threats about the GNU. The reality is that the DA is not in the GNU to go along or to get along, and we will vigorously defend the rule of law and the equal application of the law,” he said.
The stakes for the ANC were considerable. The party won more than 60% support in three of the six affected municipalities at the last local government elections, and staying off the ballot in several wards would have badly weakened its position in contests for municipal leadership. Whether the commission can now administer a credible election while the claims of 2,093 excluded candidates hang unresolved is the question its oversight and the courts will have to answer.