The African National Congress is asking the Constitutional Court to overturn a ruling that kept 181 of its councillor candidates off the ballot in six municipalities, less than a month before the 4 November local government elections.

At the heart of the fight is a single button. The Electoral Court found that candidate details uploaded to the Electoral Commission of South Africa's (IEC) online system before the 28 August deadline did not count as a formal submission, because the "submit as final" step was never completed. The ANC says that step is a software feature, not a legal requirement.

What went wrong

The ANC says all its candidates were uploaded before the 5pm deadline on 28 August, a point it says the IEC has not disputed. Its administrators, according to an affidavit filed by secretary-general Fikile Mbalula, "for reasons beyond their control, could not before the cut-off time press the button".

The affected municipalities are Port St Johns, Ngquza Hill, Walter Sisulu and Sundays River Valley in the Eastern Cape, uMshwathi in KwaZulu-Natal and Mangaung in the Free State. According to reports, the ANC failed to finalise both its ward and proportional representation (PR) lists in Port St Johns and Ngquza Hill, which leaves it without candidates on the ballot there. In the other four it lost its PR lists.

The Electoral Court dismissed the ANC's appeal in mid-September. Both the IEC and the DA opposed the party's case. The DA's lawyer, Michael Bishop, argued that strict adherence to election deadlines is essential to free and fair elections and that the same deadlines must apply to all parties.

The ANC is not the only party caught. The IEC rejected 2,274 candidates from 45 parties on the same basis, according to the ANC's court papers as reported, even though their details had been captured in the system.

The legal argument

The ANC argues that pressing "submit as final" is a function of the IEC's software and is not required by section 14 of the Municipal Electoral Act. Mbalula says the requirement does not appear in any act, regulation, government notice or the election timetable. "The Commission had no power to make it a condition of eligibility," he argued.

In his affidavit he describes the dispute as narrow: "That is a question of law. It is the only question on which the appeal turns." The party also argues that excluding the candidates would disenfranchise voters, and it has asked the court to hear the matter urgently and, if it succeeds, to order the IEC to reprint ballot papers where necessary. Bongani Mathae, one of 49 affected ANC members in Mangaung, supports the application.

The IEC rejects that reading. Its deputy chief electoral officer, Akhtari Henning, has told the court in an affidavit that the ANC's case has little prospect of success. She compared the requirement to approving a payment in online banking. "The 'submit as final' requirement was required by law," she said. "Uploading and capturing does not and cannot amount to compliance." The IEC says it would not be in the interests of justice to grant the ANC leave to appeal, and it calls the Electoral Court's finding "unimpeachable".

What is at stake

Time is short. The IEC says ballot papers are already in the printing phase, and that it cannot hold elections in the affected municipalities on 4 November if the matter is not resolved.

Mbalula, speaking on the sidelines of an ANC National Working Committee meeting in the Eastern Cape, said the party was "putting forward a solid case" and that the matter should have been settled by the electoral commission without going to court. He warned that a loss would hurt the ANC's electoral performance, though he said the party was not hoping for that outcome.

The candidate-list troubles have also reached individual members. Reports say ANC national executive committee member Andile Lungisa has brought an urgent High Court challenge, naming Mbalula, over his removal from the party's PR list. That case is separate from the 181-candidate matter.

What we do not yet know

  • Whether the Constitutional Court has heard the case, and when it will rule.
  • If the ANC wins, how and how fast ballots would be reprinted in six municipalities.
  • If it loses, how the party will campaign in wards and lists it cannot contest.