African Congress for Transformation (ACT) leader, Ace Magashule. Picture: Michel Bega/The Citizen
Ace Magashule’s party, the African Congress for Transformation (ACT), has asked the Constitutional Court (ConCourt) to consider postponing the upcoming elections only as a last resort.
On Wednesday, the ConCourt heard the leave to appeal applications of the ACT, the Labour Party and the Afrikan Alliance of Social Democrats (AASD).
The parties are challenging the Electoral Court’s 15 April ruling that refused to extend the deadline for them to submit their parliamentary candidate lists ahead of the upcoming national and provincial elections.
The Electoral Commission of South Africa (IEC) had set the deadline of 5pm on 8 March which the parties did not meet and, therefore, barred them from participating in the elections.
The failure to submit their full lists rendered the parties non-compliant with Section 27 of the Electoral Act, according to the commission.
The applicants, however, contend that the reason they failed to meet the deadline was because the IEC’s online candidate nomination system (OCNS) malfunctioned.
ACT’s legal representative, Advocate Gregory Amm, told the ConCourt that at least 120 000 of the party’s supporters would be denied the constitutional right to vote for the party of their own choice as a result of the exclusion.
The exclusion would also deny ACT’s candidates their right to stand for public office.
“The frustration of either of those rights, which we submit is presently the status quo, has the effect of rendering the elections unfair,” he argued.
Amm cited a 1999 ConCourt judgment which states that “the vote of each and every citizen is a badge of dignity and of personhood”.
“Quite literally, it says that everybody counts,” he said.
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The advocate pointed out that the judgment also stressed that rights may not be limited without justification.
He seemingly suggested that that the commission claiming that ACT “failed” to comply with the Electoral Act was misleading.
“It’s not a subjective or negative failure, but an objective inability which we submit is that the portal malfunctioned. We don’t suggest that the portal crashed and we don’t claim the portal was not live.”
Amm emphasised the OCNS lagged and this was supported by various other political parties “even the commission itself”.
“It required users to log out and log in again. In doing so, the information that had been captured was lost.”
The advocate said the IEC had the powers in terms of Section 20 of the Electoral Act to amend the election timetable and extend the deadline for the submission of their lists.
“I stand to be corrected, but if you go through the affidavits or the heads of the commission, you won’t find a single reference to the commission actually considering section 20.”
He revealed that ACT only wanted “an hour or two” for the IEC to reopen its online portal to submit outstanding documents to the IEC and only resort to postponing the elections as the last measure.
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“Obviously, the postponement of the elections is the most drastic relief,” Amm continued.
“The non-postponement of the elections and non-granting of some relief to my client’s right does not render what is already an unfair election free and fair, with respect,” he added.
Asked why ACT did not opt to submit their list physically at the IEC’s office in Centurion, Amm indicated that parties were urged “to use the system, and not make hand deliveries”.
“My client ultimately packed everything up and drove to Centurion, but did it a bit late. They say in the affidavit that they left 4:20pm and got there after 5pm.”
ACT appears on the IEC’s national and regional candidate lists, but it missed the deadline for inclusion in other regions.
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