JOHANNESBURG, GAUTENG — The African National Congress (ANC) Constitutional Court appeal concerning the exclusion of 181 councillor candidates from the upcoming November elections has brought the issue of voter disenfranchisement to the forefront of South Africa’s legal landscape. The ruling party is seeking leave to appeal a recent Electoral Court decision that upheld the Independent Electoral Commission’s (IEC) mandate to bar the candidates from participating in the upcoming polls.
During the hearing, the ANC’s legal team pivoted its strategy, focusing heavily on constitutional rights rather than technical failures. ANC council Daniel Berger presented the party’s core argument, asserting that the IEC’s Online Candidate Nomination System (OCNS) “is not law.” Berger contended that the OCNS consists merely of operational provisions. In contrast, the IEC and the Democratic Alliance (DA) maintained that these operational provisions have been in place for a decade. They argued that political parties across the country, including the ANC, have routinely used the portal’s “submit as final” function to finalize their candidate lists.
This marked a distinct shift from the earlier Electoral Court proceedings, where the ANC’s primary argument was that technical system failures prevented them from accessing the portal and finalizing their submission. Before the Constitutional Court, the focus turned to the political rights of the electorate, the party itself, and the individuals who nominated the candidates.
The bench engaged deeply with these constitutional implications. Justice Mathopo probed the potential impact on local communities, questioning how voters would react if their selected candidates were suddenly absent from the ballot paper. The courtroom dynamics varied among the legal representatives; Advocate Terry Motau faced rigorous and tough questioning from the justices regarding the technical legal reasoning, whereas Burger appeared to navigate the inquiries and satisfy the bench with his line of argument.
The high-stakes atmosphere was palpable in the courtroom. During a tea break, the ANC Secretary-General arrived, and the session concluded with smiles and a photo opportunity featuring Burger and other ANC officials.
However, Lawson Naidoo, Executive Director of the Council for the Advancement of the South African Constitution (CASAC), cautioned against reading too much into courtroom body language or the tenor of the justices’ questions.
“The bench asks probing questions because they want to understand properly the legal reasoning of the parties… they want to make sure that they’re not misunderstanding anything,” Naidoo explained. “Whilst we might interpret some of the questions as being friendly to one party and hostile to another, that does not always play out in the way judgments are delivered.”
Naidoo noted that the ANC’s initial victory was simply convincing the court to engage its jurisdiction, granting them the right to appeal and an audience before the bench.
Acknowledging the urgency of the matter, the Deputy Chief Justice indicated that the court would not take long to deliver its verdict. A decision could be handed down within a few days, with detailed reasons to follow later.
If the ANC is successful, the IEC will face significant logistical hurdles, including the need to print new ballot papers for all affected municipalities. Furthermore, Naidoo highlighted a critical ripple effect: a favorable ruling for the ANC could force the IEC to grant similar indulgences to other political parties that also missed the nomination deadline. This scenario would allow other parties to add their candidates at the last minute, severely complicating the IEC’s electoral timetable and logistical preparations.
