The Constitutional Court has reserved judgment in the ANC's bid to have 181 of its candidates placed on the ballot for the 4 November local government elections, after a hearing on Monday 12 October.

The candidates were left off after the party did not press the "Submit as Final" button on the Electoral Commission's online nomination system before the 5pm deadline on 28 August, according to the ANC's own argument and the commission's position as reported. The court has promised an urgent decision, but no date has been given.

What the ANC argued

Advocate Daniel Berger, for the ANC, told the court that the party completed its electronic nomination forms and uploaded the annexures before the deadline, and that the commission already held the details of the 181 candidates. He said the "Submit as Final" button appears in no act or regulation, only on screen and in the commission's online nomination manual.

Berger argued that saving the form on the system amounts to submitting it, and that technical glitches blocked the final confirmation step. He said the ANC also paid the required fees.

The party says it is not asking for extra time or a reopened nomination period. It wants the candidates whose details were uploaded to be accepted.

The 181 candidates are 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.

What the IEC and the DA say

The Democratic Alliance argues that a party that completed its forms but did not press "Submit as Final" by the deadline has not completed the process. Berger said the DA accepts the button is not written in law, but the DA maintains that the online system is part of the framework for implementing electoral legislation.

The Electoral Commission's position, as reported, is that its portal worked properly, that saving information is not a formal submission, and that deadlines must be applied consistently to every party. That position is set out in an affidavit filed jointly with the DA, according to reports of the hearing.

Deputy Chief Justice Dunstan Mlambo questioned counsel on the DA's argument. Reports of the hearing say some justices asked whether a software button could disenfranchise voters, while others asked why the ANC did not follow a process it had known and used for years.

Professor Koos Malan, emeritus professor of public law at the University of Pretoria, said of the appeal: "I think it should fail." He argued that the commission's system was used in more than 200 other municipalities where the button was pressed, which he said could point to the party's own administrative failure. The ANC argues the exclusion deprives voters of political choice.

What we do not yet know

  • When the court will hand down judgment, and whether it will decide the matter before 4 November.
  • What the Electoral Commission itself told the court: the reports of the hearing give no direct quotes from the commission.
  • Whether other parties' candidates are affected. One analysis puts the number of candidates from various parties not finally submitted at 2,274; we have not confirmed that figure independently.
  • Whether the ANC would still be able to contest proportional representation seats in four of the municipalities and ward seats only, as one analysis describes, or be excluded entirely in two. This needs confirmation from the commission.