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No Aces to play — Magashule’s party among five to lose critical candidate lists court bid

No Aces to play — Magashule’s party among five to lose critical candidate lists court bid
Ace Magashule at the unveiling of his new political party African Congress for Transformation on Vilakazi Street in Soweto. 30 August 2023. (Photo: Felix Dlangamandla)

Ace Magashule’s African Congress for Transformation (ACT) and AMCU’s Labour Party have been unable to convince the courts to submit their candidate lists after the set cut off date. 

While ACT was unable to upload all their Parliamentary candidates, they will still be appearing on the ballot.

They managed to get the name of Magashule as well as 10 other candidates onto the IEC’s system for the National Assembly.

The final lists published by the commission indicated that they have 6 candidates from the Eastern Cape, 14 from the Free State, a single candidate from Gauteng, eight from the Northern Cape, and 10 candidates from the Northern Cape.

The Electoral Court ruled that four political parties and an independent candidate have failed to comply with the election timetable by not submitting National Assembly and Provincial Legislatures lists. The deadline for political parties, as well as independent candidates looking to contest, was set for 8 March.

A majority of the judges sitting at the Electoral Court, namely Leicester Adams, Dumisani Zondi and Prof Nomthandazo Ntlama-Makhanya were in favour of this judgment.

The applicants in the matter were the Labour Party of South Africa, established by the Association of Mineworkers and Construction Union (Amcu), registered political parties including expelled ANC secretary general Ace Magashule’s African Congress for Transformation (ACT), Afrikan Alliance of Social Democrats (AASD), All African Allied Congress (Aaac) and an independent candidate Sipho Malapane.

“All of the applicants failed to comply with the Election Timetable for the Election of the National Assembly and the Election of Provincial Legislatures (timetable) promulgated in terms of s20 of the Electoral Act 1 by the respondent, the Electoral Commission (Commission) in these applications. Most of the applicants fell foul of item 9 in that they had failed to meet the deadline prescribed….” the judgment reads.

Joseph Mathunjwa, Ace Magashule

Joseph Mathunjwa (centre) at the launch of Amcu’s Labour Party of South Africa in Braamfontein. 7 March 2024. (Photo: Ed Stoddard)

Technical difficulties

The applicants in this matter made a submission that the Online Candidate Nomination System (OCNS or portal) of the Electoral Commission of SA (IEC) where the candidates were supposed to be submitted made it impossible for them to comply with the requirement to upload on time.

In particular, ACT claimed to have encountered technical difficulties which meant the IEC’s system was “not fit for purpose”.

The Electoral Court believes that there is enough evidence to demonstrate that the OCNS did not malfunction on 8 March 2024.

“What is also instructive is that before 8 March 2024 ACT never reported any issues with the OCNS. Its first complaint was a phone call to the Commission at 14:00 on 8 March 2024.

“This, in my view, lends credence to the version of the Commission that there was nothing wrong with the OCNS. The difficulties arose from the lack of preparation on the part of ACT and the fact that they left their submission of the requisite documentation until the very last minute,” it reads.

The majority judgment further refutes these claims and sets out that the applicants have themselves to blame for the fact that they did not meet the prescribed deadline.

“This point is confirmed, according to the Commission, by the fact that the vast majority of political parties, as well as independent candidates, had no difficulty using the OCNS. The system, so the case on behalf of the commission goes, was reasonable and user-friendly as demonstrated by the fact that several unrepresented political parties used it to submit the details of their supporters, nominate candidates and make payments.

“Dozens of represented political parties also used the OCNS to nominate candidates and make payments – about 87 parties (of which 76 are ‘unrepresented’) and 24 independents were able to comply with the provisions of s 27 of the Electoral Act by using the portal,” according to the judgment.

Read more in Daily Maverick: 2024 elections hub

Time constraints

The other complaint which came to the fore was that the Labour Party was aggrieved by the short time they had to upload all details onto the system.

The court looked at whether there was anything unlawful within the time limit and the strict enforcement thereof by the IEC. It also considered whether the elections would not be free and fair as a result of the applicants being excluded from contesting the elections.

The judgment states that there was nothing untoward with the duration given to parties to make submissions.

“The simple point of the Labour Party matter is that it did not comply on time. That was not a result of the OCNS or the Commission’s conduct, but the fact that it left compliance to the last minute and then ran out of time. It only captured its first candidate just 36 minutes before the deadline at 16:24 on 8 March 2024,” the judgment reads.

The judgment also states that it would not be fair for the IEC to allow anyone to deviate from the set timetable.

“It is inherently unfair to parties and candidates that complied with a deadline to permit the alteration of that deadline, especially to where the alteration is for purposes of suiting the convenience of a party that failed to comply with the deadline purely in consequence of subjective factors. It would come at a cost to political parties and independent candidates who have planned their campaigning based on the proclaimed date and who have not been cited in these proceedings,” it reads.

The fourth applicant (All African Allied Congress) and fifth application coming from the independent candidate were dismissed simply on the basis that there were no sustainable causes of action.

Dissenting view

Judges Retselisitsoe Phooko and Zwelibanzi Shongwe ruled that the Labour Party, Act and ASSD should be granted relief.

“Their written judgment considers evidence before this Court shows that the applicants had aired their dissatisfaction with the respondent about their challenges when using the portal.

“They note that there were complaints during the virtual presentation by the IEC where they could not ask questions and/or get a clear explanation about how the portal worked.

“The Commission’s submission was that the applicants merely needed one day to complete the registration process. However, the applicants’ testimony is that they hired a private venue and had at least dedicated two days with the assistance of several volunteers to upload the information on the portal.

“However, they were unsuccessful. In my view, the submission to the effect that then applicants only needed one day to upload the information on the portal cannot be sustained without more,” the statement reads.

The judgment sets out that applicants were adequately equipped to use the online system and their complaints be “dismissed as being their fault”.

“Considering the above exposition, I am of the view that the challenges encountered by the applicants ranging from the virtual training, the actual use of the portal, and their exclusion (and their members) in this process has the potential to raise a doubt whether or not the elections were free and fair,” it reads. DM


Comments - Please in order to comment.

  • Alley Cat says:

    Many political parties and independents were able to access the portal and register, but, as pointed out in the judgement, these few were not? If they can’t even carry out a simple registration, what chance is there that they will be able to govern?
    A bad workman always blames his tools springs to mind.

  • Philip Machanick says:

    Entering so many signatures has to be challenging. Small parties with minimal organization really struggled – though that could have been a precursor to them struggling during the campaign.

    However, parties like UDM only 2 seats had fewer votes last election than the signature requirement and they did not need to go through this.

    Change Starts Now was stopped by the is requirement. A few other parties may have contested fewer provinces than they intended.

    The judgment would be correct if it is really true that the parties concerned only started entering signatures at the last minute. However, the signature system was introduced to discourage independent candidates, who had it cut to 1000 by the Concourt. It doesn’t make sense to have such an uneven bar to nomination. A party that just squeaked into parliament last election doesn’t need to go through this.

    • Graeme J says:

      Oh puhleeze. The Labour Party knew exactly what the technical requirements were for compliance and they only started entering details 36 minutes before the cut-off time. And the LP has balls to blame someone else, OCNS), for their cockup.

      And they want to govern? They want to make ZA more of a banana republic than it already is. I think not.

  • Graeme Bird says:

    Haha. They expect to help run the country but can’t even submit an online application.

  • MaverickMe says:

    Further proof that “Africa Time” never works.

  • Johan Buys says:

    In a way, I sort of think that these clowns should be allowed to compete so that they can be publicly be eliminated as irrelevant.

  • Fanie Rajesh Ngabiso says:

    He’s more of a joker. Bye bye.

  • Greeff Kotzé says:

    Not a huge fan of these parties’ politics at all, but if merely taking an unbiased look at the process involved:

    I think it should be common cause at this point that any citizen-facing administrative process that occurs fully online or only electronically, ought to have face-to-face support available at the government entity’s offices to help members of the public complete submissions successfully. And like it or not, party representatives are also members of the public, even though some parties are extremely well-resourced. Every single aspect of our elections should be citizen-centric.

    The fact that the case was decided 3 to 2 is telling. It may very well be that some or all of the applicants in this matter are merely using the new online process as a fig leaf to provide cover for their own disorganisation, but I still find the IEC’s defence somewhat lacking. It should have been able to say that submission support had been available at their offices, and that it would not have cut off submissions for anyone that was already through the doors, with all their documents on hand, before the deadline (even if it is bloody rude to show up close to closing time). Imagine the outcry if they told voters still queueing at 9pm on Election Day that they can no longer cast a vote.

    • Graeme J says:

      “Imagine the outcry if they told voters still queueing at 9pm on Election Day that they can no longer cast a vote.”

      Your figurative illustration is totally wrong. That’s a totally different thing to what happened in the Labour Party instance. Figuratively, the LP candidates didn’t pitch until AFTER the “voting” had closed.

  • Colin Braude says:

    Can somebody explain the difference in circumstances between when the Electoral Court condoned a late submission by the ANC for the 2021 local government elections its blocking non-ANC parties in 2024.

    Unless the learned Court provides a compelling explanation, it will strengthen the perception of our courts being simply the ANC in juridical robes.

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