ROAD TO ELECTIONS 2024
Unregistered parties lobby for SA poll postponement as ConCourt hit with several urgent applications
Parties that say they were left out of the registration process argue that a delay in the election would be in the interest of justice. And then there’s Zuma’s disputed candidacy.
The Constitutional Court (ConCourt) has been hit with several urgent applications relating to the 2024 general elections, less than a month before South Africans head to the polls. At least one of two cases set down for arguments next week could result in the election date being postponed.
On Wednesday, 8 May, three political parties are seeking urgent intervention, claiming that technical faults and “hanging” in the online registration system of the Electoral Commission of South Africa (IEC) barred them from registering on time.
The ConCourt has ruled that the cases brought by the Labour Party, the Afrikan Alliance of Social Democrats and the African Congress for Transformation (ACT) will be heard in tandem.
A fourth case was submitted by the Defenders of The People party on the same issue, but the court is yet to provide directions on how it will be handled.
The IEC has opposed the applications.
The Constitutional Court in Braamfontein, Johannesburg, will hear two cases next week that might have an impact on the 29 May elections. One of them could result in the election date being postponed. (Photo: Alaister Russell / Gallo Images)
Left out in the cold
The newly formed Labour Party, the Afrikan Alliance of Social Democrats and the ACT have all raised a similar issue, saying the IEC “unfairly excluded” them from participating in the election.
In an affidavit on behalf of the Labour Party, Krister Janse van Rensburg said it was unable to upload information to the IEC’s electronic portal by the deadline of 8 March. Janse van Rensburg said the “late” announcement of the election date by President Cyril Ramaphosa and an “extremely condensed” election timetable from the IEC made it difficult for the party and several others to register on time.
“The commission required the parties to capture their candidate lists and other relevant information on the commission’s online Candidate Nomination System. There was no alternative for capturing the information that was required.
“Therefore, although the candidate lists could be submitted physically, other information had to be uploaded to the portal electronically in order to fully comply with the requirements of section 27 of the Electoral Act,” he said.
Janse van Rensburg said the party, along with several other unrepresented parties, had “great difficulty” using the portal because it would either “hang” or kick out those trying to save information.
“The Labour Party and other unrepresented parties attempted to engage the commission and advised it of the technical difficulties with the portal.
“This attempt was, however, unsuccessful and the commission refused to make a decision on the extension of the timelines so as to permit parties that were experiencing technical difficulties to submit their candidate lists and other relevant information.
“The commission’s refusal prompted the Labour Party and others to approach the Electoral Court for the review of this decision,” he said.
The parties had taken the issue to the Electoral Court, sitting in the Supreme Court of Appeal in Bloemfontein. The IEC opposed the applications, arguing that the parties were “the authors of their own misfortune”.
The majority of the judges of the court dismissed the applications.
“I find myself in agreement with the submission on behalf of the commission that … 87 political parties and 24 independents made use of the online Candidate Nomination System ahead of the upcoming election seemingly without difficulties… [It] has to be accepted that the system was working properly and was fit for purpose,” wrote Judge Leicester Adams.
“The commission also gave examples of at least three unrepresented parties that are competing in all the available elections.
“This demonstrates – rather persuasively – that if a party or an independent candidate had prepared properly and had undergone the necessary training and guidance offered by the commission, they would have experienced no difficulty in complying timeously with the provisions of section 27 [of the Electoral Act].
“One of the parties, for example, was only formally registered after 6 March 2024 – two days before the deadline, yet it was ready and able to upload its documents,” Judge Adams said. Judge Dumisani Zondi and Professor Nomthandazo Ntlama-Makhanya agreed.
Pappie Mokoena, who leads the Afrikan Alliance of Social Democrats, at the election of a new mayor for the Mangaung metro on 14 April 2023 in Bloemfontein. (Photo: Mlungisi Louw / Gallo Images)
Election date in the balance
The case has the potential to affect the 29 May election date if the ConCourt agrees with the parties that the IEC’s initial timetable was unfair and sets it aside.
In his affidavit, Janse van Rensburg asked the court to set it aside and requested that Ramaphosa declare a new date that would allow the parties affected by the system glitch to register.
The IEC has warned that a change to the election timetable could make it difficult to guarantee an election on 29 May.
Janse van Rensburg has also asked the court to direct the President “to consider the request for postponement by the commission. The relief sought by the Labour Party will ensure that rather than disenfranchising citizens of this country, the national and provincial elections will still be held, albeit on another date.”
Sennye Mkhabela, the ACT’s treasurer-general, made a similar argument to that of Janse van Rensburg, saying the parties should be afforded a few hours of limited access to the portal to allow them to upload the remaining documents.
“The relief required fits squarely into the ‘leeway’ period the commission has built into the timetable… The insistence of holding the elections on 29 May, come what may, can operate to legitimise or render free and fair that which has already been rendered unfree and unfair by the events of 8 March, the responsibility of which lies at the door of the commission.”
Digital divide
The parties are relying on the fact that two of the Electoral Court judges agreed with some of their arguments about the technical glitches.
“It is incomprehensible why a novel system of this nature must be rushed through and be the only option (together with physical delivery at the commission’s national office in Centurion) available to submit the list of party candidates,” said Professor Moses Phooko in the dissenting judgment. He added that the issues experienced by these parties showed a “digital divide” – the gap between individuals “with, inter alia, skills to use technology and, on the other hand, those without or with limited expertise”.
“I am of the view that the complaints by the applicants cannot simply be dismissed as being their fault,” Phooko said. “To the contrary, they suggest that there is more that needs to be done to achieve digital literacy to realise the right to political participation in the digital era. We need an inclusive process that will ensure that members of our society are not left behind in this … digital world.”
Political analyst Professor Ntsikelelo Breakfast agreed that the court would have to consider the concerns raised about the level of training offered by the IEC, along with the time provided for parties to get to grips with the system.
“This is a complex matter because both arguments make sense. South Africa is a country that has many divides and not everyone is technologically advanced. At the same time, if the election date is moved, it will have an impact. There are financial arrangements that go with an election,” he said.
Breakfast added that the court would have to consider how the issue could affect the legitimacy of the election overall.
“As a party, you can accept the outcome of a loss if you participated. But if you were left out, it becomes a problem. The court will have a very difficult decision because the election must be aligned to constitutional provisions.”
Jacob Zuma during the high court case on 27 March in Durban, in which the ANC argued that the MK party had infringed on its trademarks. (Photo: Darren Stewart / Gallo Images)
Zuma vs the IEC
Meanwhile, on 10 May, the ConCourt will hear the appeal by the IEC against the Electoral Court’s decision to allow former president Jacob Zuma to stand as a candidate for the uMkhonto Wesizwe (MK) party, considering he was convicted and sentenced to 15 months in prison for contempt of court for refusing to appear before the State Capture Commission in 2021.
On Friday, 3 May, Zuma submitted notice that he intends to file a counter-application to the IEC case, requesting the recusal of six ConCourt judges who were involved in his contempt of court case. Zuma has requested that Chief Justice Raymond Zondo, along with Justices Mbuyiseli Madlanga, Steven Majiedt, Leona Theron, Nonkosi Mhlantla and Zukisa Tshiqi, recuse themselves.
The IEC had barred Zuma from appearing on the ballot, based on his conviction, but the Electoral Court reversed this, ruling that Zuma could stand for office.
Section 47 of the Constitution dictates that a person who is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine is not eligible to be a member of the National Assembly.
It adds that “no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.”
The Electoral Court found that, although Zuma had been sentenced for a period of more than a year, the proviso about being able to appeal placed his sentence outside the realm of disqualification.
“In my view, the sentence that was imposed on Mr Zuma cannot be said to be a sentence which the section contemplates,” wrote Judge Zondi, who chairs the Electoral Court. “The commission erred, therefore, to uphold an objection to Mr Zuma’s candidacy on the basis that the sentence that was imposed on him disqualified him from being eligible to be a member of the National Assembly.”
Judge Lebogang Modiba, with two judges concurring, agreed with the MK party’s argument that the presidential remission of Zuma’s sentence in effect reduced his sentence to three months.
In the case before the ConCourt, the IEC argues that a remission of sentence does not amount to a change in the sentence and also argues that Zuma’s sentence need not be appealable to be considered a sentence.
Breakfast said the MK party case is unlikely to have an impact on the timeline for the election, because Zuma’s face can remain on the ballot even if he is not eligible for National Assembly office.
“Most of us never expected the Electoral Court’s interpretation of section 47 [of the Constitution]. And even lawyers don’t seem to be speaking the same language when it comes to this, so this matter needs to be resolved.
“The Constitutional Court is the highest court and it needs to clear the air. This is something that goes beyond this case and the IEC had to get clarity,” he said. DM
This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R29.
The fourth industrial revolution has progressed to AI due to its age yet we say there are people who want to run the country but cannot register on an electronic system.
There is no record of the system glitch that had to be repaired as the judges ruled.
The alternative system is an opinion of a judge who lose sight to the fact that to keep the old paper system will still mean someone loading the registration manually on behalf of the parties defeating the main reason of migration to a new efficient system.
The MK issue is a translation issue on the argument that the IEC cannot enforce a national assembly decision of who can stand for office.
Observers have been invited worldwide to observe the elections and given the date, how do you tell them that the election system is doubtful to be fair if you cannot point the error or what has been done to fix it so that it can be a part of their audit when declaring the fairness of the elections.
If a driver fails to drive through the gate do you then move the gate?
Exactly
Love your driver and gate analogy!
With respect to the judges that suggest that the “digital divide should not be an impediment to being able to stand for office”, do South Africans seriously need to be represented in parliament by individuals who aren’t capable of using a cellphone and entering data on a website ?? How on earth would they be able to comprehend and vote on complex issues pertaining the law?
Exactly!
I find Professor Phooko’s dissent to be reasonable. In the interests of procedural fairness and democracy, a physical alternative to online-only systems should always be available at the physical offices of the entity administering the system. This should be the case for all state entities, including the IEC, and they should allocate resources accordingly. So yes, an officer of the IEC should have been available to digitize the physical documents of any party that delivered it to their offices before the deadline, if we want truly democratic access to our electoral systems. As we move towards greater access to connectivity and digital literacy, the need for such measures would gradually fall away (i.e. it would still exist in principle, but not be used in practice, and therefore become a non-issue).
As for the the comment on representation in Parliament, well, all the citizens of this country have an equal right to representation, and also an equal right to put themselves forward as potential representatives. Limiting representation by imposing intellectual snobbery and education-based gatekeeping on that process is not provided for in our laws or our Constitution, and I would argue is directly opposed to the spirit of the Constitution.
Note that there is a difference between a legislature and the civil service —I fully agree that appointed officials should meet relevant criteria regarding qualifications and experience.
Politicians – real and wannabes – have known for five years that there would be an election around this time, so why can’t they get their act together and make sure they’re registered properly and on time? There’s no snobbery here, unless you’re assuming that only affluent or educated people can navigate online activities – almost all South Africans today have cell phones, with 91% of adults having a phone, and 51% having smart phones. If you’re one of those who can’t use one, surely you have someone in your party (such that it is), that is able to use the internet to a degree of proficiency? You wouldn’t ask a plumber to perform open heart surgery, so why should we saddle ourselves with technologically illiterate leaders in an age of technology-driven global and local development? Bottom line is that these parties were too late and too disorganised to register on time – their problem, maybe lesson learned for next time? Frankly, they disenfranchised themselves.
To me, a Party has blown it, if it cannot even register. Kenneth below puts it well.
The Constitution states: ” if a member of parliament becomes ineligible to hold office if he or she is convicted of an offence and sentenced to more than 12 months of imprisonment without the option of a fine.” It says nothing about appeals.
Interpreting a presidential remission as an amendment to the *sentence* would appear to this layperson to be a breakdown in the separation of powers — allowing the president to override the courts, which our Constitution is designed to prevent — while it should be treated like the granting parole, which is an administrative action.
With the greatest respect, the Electoral Court’s reasoning has an odour of “firepool” about it.
I am curious about the difference in circumstances between when the IEC allowed the ANC to miss its candidate submission deadline for the local government elections, due solely to that party’s bad organisation (when it had five years to prepare) and newly-formed parties grappling with the IEC website. I can certainly attest to government (and bank) websites having delays and glitches or being compatible with only certain browsers at different times.
“with, inter alia, skills to use technology and, on the other hand, those without or with limited expertise”.
I’m sorry, but we’re almost a quarter of the way through the 21st century. Who the hell wants ‘leaders’ who can’t use a website or get their shit together in time for a well-defined deadline? We already have enough useless gravytrain hangers-on, so let’s not enable more on the flimsy grounds of disenfranchisement of voters.
“Who the hell wants ‘leaders’ who can’t use a website or get their shit together in time for a well-defined deadline?”
The people who vote for the party that’s been running our country for 30 years. They have a stellar track record in both of those.
Well yes, except that the ANC did register on time, using a website. Other than that, you’re right, hence my following sentence.
There’s a much more serious flaw in the “signature” requirement, as evidenced by the claim that MK submitted “forged” signatures.
A process that is not auditable is inherently fraudulent.
Previous IEC processes required parties to keep records such as copies of canidates’ IDs and signed consent to nominate but did not require sight of them unless there had to be an audit. Such an audit would not be hard. “Someone has challenged the nomination of candidate X. Please provide the complete paperwork,” is a reasonable request.
The form the IEC requires for signatures has three items per signatory: ID number, name, signature. The online system only captures the ID and name part of the form. Let‘s say someone alleges to the IEC that person Y did not actually sign the form. How does anyone check this? There is no requirement to keep the paper forms in an order that makes it easy to look up a particular name – it could be anywhere on thousands of pages of signatures.
You’d think that given that MK supposedly used a City of Cape Town jobseekers database, that the cops would easily be able to access this and compare it to the signatures – if there’s a major overlap, boot them out!
Postponement of elections will benefit the DA more that any other party. DA is not ready and it still need time to tell its story. Tis much talk and articles written about the declining electoral fortunes of the ANC. Reasons for the current state of the ANC and predictions of its performance in the next general election are all out there for everyone to see. It has also been make abundantly clear that DA is the only party likely to ascend to power after the elections. However, the DA is yet to craft a narrative that the majority of voters can relate to, one that resonates with the lived experiences of the majority of South Africans. The party hasn’t packaged and delivered a believable and relevant message that could cause a positive chain reaction among the voters whose support it need to ascend power. It is a fact that the much talked about decline in ANC’s electoral support is more of a self inflicted one than it is the result of hard work of by any of the opposition parties. DA hugely lacks captivating leadership fit to steer it in this unique political terrain. The ups and downs in its performance from 2011, indicates uncertainty in and about the party. The postponement will help the party to fix these or it must start prepare for the next elections from the 30th May 2024. That should be enough time.
I agree that the DA lacks what the majority of the electorate want. I may be wrong but I think that is an entirely black leadership and ridiculous promises. What they do have doesn’t seem to be in demand and that’s a track record of improving the lives and therefor the ‘lived experience’ of the people in the areas over which they have had control for a reasonable period of time. Pretty much no other party has that but it appears that’s not an impediment to electoral fortunes.
The DA is the only party with a good record of delivery. Who cares a #$%^&* who the leader is? They DELIVER.
So many people have done so much to vote in these elections that a change of date will be unconstitutional due to the number of suicides committed by people who miss these election.
Nothing would suit the government more than delaying the election – predicted that lambs don’t arrange abattoir dates
I love the lamb and abattoir dates Johan, the ANC really got us in this mess where 70 parties, most of them chancers register for elections they know they will lose.
Can anyone in the world know where people vote for more than 50 parties?
I think the DR-Congo had 24 or 25 Presidential candidates last time out and literally hundreds of local and regional parties and candidates. And before anyone trashes it, let’s remember that the DRC is attracting more FDI into its mining sector than we are into ours! That’s literally how far we’ve slumped.
Nonsense! It was the first time that I worked on the Online Candidates Nomination System, and NOBODY trained me other than the system itself. And I am one of the older South Africans who grew up before the advent of computers and as such I don’t have the comfort of being familiar with computers. AND my party waited until the last moment before presenting the lists to me (I am speaking of hours here, not days). Yet each and every list was put into the system on time. These fly by nights that wants the voters to give them some posh salaries must realise that if they want to be in office, then they must have the discipline to be able to do the job. If they can’t even enter their lists on time, how will they be able to represent the voters? And besides, I believe that the story of no hand system being available is also false. The IEC gave us hand forms to do the nomination by hand if we wanted to, if I recall correctly. South Africa is more important than these irresponsible candidates/organisations and it is time they learn their lesson!
Spot on! What’s your party, by the way?