The ANC has told the Constitutional Court that the Electoral Commission of South Africa (IEC) had the details of 181 candidates for six municipalities on its system before the nomination deadline, arguing that the “Submit as Final” button was not a legal requirement.
Representing the ANC, advocate Daniel Berger argued that the party had complied with the law by completing the electronic nomination forms and uploading the required annexures before the 5pm deadline on 28 August.
The ANC missed the candidate nomination deadline in six municipalities: Port St Johns, Ngquza Hill, Walter Sisulu and Sundays River Valley in the Eastern Cape; Mangaung in the Free State; and uMshwathi in KwaZulu-Natal.
“The ANC completed all the electronic forms in the system and uploaded all the annexures in the system before the 5pm deadline. Therefore, the ANC complied. The regulation says nothing about an additional or final step after all the annexures have been loaded into the IEC system,” Berger said.
The party argues that its candidates’ records had been uploaded and captured in the IEC’s database before the deadline, but that technical glitches prevented it from completing the final confirmation step.
The IEC disputes this account, maintaining that its online nomination portal functioned properly and that saving information on the system does not constitute a formal submission. The commission argues that the deadlines must be applied consistently to all affected political parties to protect the integrity of the electoral process.
Berger told the court that, by the deadline, the IEC had the required candidate information on its system and the ANC had paid the necessary fees to register its candidates.
He said the “Submit as Final” button on the IEC’s online candidate nomination system did not itself submit the documents, which had been uploaded.
“The requirement for the button appears in no act and in no regulations. It appears only on a screen and in the manual of the OCNS,” Berger said, referring to the Online Candidate Nomination System.
He argued that the IEC’s software feature should not be elevated into a legal requirement when it was not prescribed by legislation.
“The ANC asks for no indulgence and no special treatment. Contrary to what the Commission and the [Democratic Alliance] say in their affidavit, the ANC seeks no condonation, no extra time, nor to place any extra information before the Commission,” Berger said.
The ANC also rejected the DA's argument that allowing it to rectify its nomination submissions would undermine the 4 November local government elections.
“To say that the ANC experienced problems with the system is not to undermine the work or the integrity of the commission,” Berger said.
He said the party’s case rested on the interpretation of the legislation governing candidate nominations and the status of the “Submit as Final” button, which was introduced on the IEC’s website in 2016.
Berger argued that the DA had conceded that the button was not law, although the opposition party maintained that the online nomination system formed part of the framework through which electoral legislation was implemented.
He compared the ANC’s uploading of documents to physically delivering nomination papers, arguing that the information had been submitted to the commission before the deadline.
The ANC was not seeking to reopen the nomination period, Berger said, but wanted the IEC to accept the candidates whose details had been uploaded.
Deputy Chief Justice Mlambo questioned Berger on the requirement that parties and candidates submit their nominations in the prescribed manner, including completing and uploading the relevant forms.
“What do you say to the argument, I think it’s the DA’s argument that says: If you’ve completed, as you say, the forms but by the deadline you have not pressed ‘Submit as Final’, then you have not completed the form?” Mlambo asked.
“We say: When you complete the form and you save the form on the commission system, you have submitted everything,” Berger replied.
He argued that clicking “Submit as Final” merely notified the commission that a party’s submission was final and did not constitute the submission itself.