Poll date and fairness at stake
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. By
The Constitutional Court 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 Constitutional Court 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.
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.
Election date in the balance
The case has the potential to affect the 29 May election date if the Constitutional Court agrees with the parties that the IEC’S initial timetable was unfair and sets it aside.
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
In his affidavit, Janse van Rensburg asked the court to set it aside and request 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 commis
sion. 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 treasurergeneral, 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.”
Zuma vs the IEC
Meanwhile, on 10 May, the Constitutional Court 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.
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 effectively reduced his sentence to three months.
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 the case before the Constitutional Court, 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 Curt 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.