Full bench of the Constitutional Court. Picture: Gallo Images/Alon Skuy
One of the political parties barred from participating in the elections has dismissed the suggestion that the registration portal of the Electoral Commission of South Africa (IEC) did not experience any technical difficulties.
The Labour Party, the Afrikan Alliance of Social Democrats (AASD) and the African Congress for Transformation (ACT) appeared before the full bench of the Constitutional Court (ConCourt) on Wednesday for their appeal applications to be heard.
The applicants are seeking to appeal an Electoral Court ruling which upheld the IEC’s decision to exclude them from participating in the 2024 national and provincial elections.
The parties had failed to submit their parliamentary candidate lists by the deadline of 8 March in line with the election timetable and, therefore, did not comply with the requirements of Section 27 of the Electoral Act.
According to the parties, the reason for not meeting the deadline was due to the IEC’s online registration system malfunctioning.
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The applicants asked the IEC to extend the deadline for the submission of their lists, but the request was refused with the parties taking the issue to the Electoral Court.
The court ruled in favour of the IEC on 15 April.
The parties have since asked the ConCourt to set aside the judgment and to postpone the 29 May election date.
The IEC has opposed all the applications.
During proceedings, Advocate Chris Loxton, representing the Labour Party, argued that the IEC’s contention that its online candidate nomination system (OCNS) functioned without any mishaps because other parties were able to upload the required information did not hold water.
“We submit that the central submission by the commission namely that the system was working really well and that those who acted reasonably and with due diligence could comply with the requirements has a fatal flaw to it,” he said on Wednesday.
Loxton told the ConCourt that 35.3% of unrepresented parties were unable to access the IEC’s online portal.
“A 35% failure rate is not a small minority and 65% is not a vast majority. It indicates that despite the glowing reports from the service provider who said their system was working well and the argument that if some could do it then all could do it, there were significant difficulties.
“If a bank, for example, was to put out an app on the market and they found that 35% of their customers were unable to use the app, they would withdraw it.
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“They would reach the conclusion that whatever the app’s merits, it was not fulfilling its purpose and however much IT people told them there was nothing wrong with the app, the proof would be in the pudding of how many people could use it successfully,” the advocate continued.
He pointed out that the OCNS’s success rate numbers had not been submitted to the Electoral Court and may have influenced the 15 April ruling.
“These figures go to the heart of the problem because if they are an indication… that the system was not working as it should have. This is not a matter which is a dispute of fact which cannot be resolved between the commission on the one hand and the Labour Party on the other.
“It is the commission which has not disclosed, at a very late stage, in its answering affidavit that its statement that the system was working perfectly well and that a very small minority couldn’t use it is simply not true.”
The advocate further argued that parties barred from participating in the elections were disqualified unlawfully, which infringed on their constitutional right.
Loxton added that Labour Party’s request for a postponement on the elections was “justified” if the ConCourt ruled in the party’s favour.
“There doesn’t seem to be an objection to the form of the relief that is sought. The form of the relief is taken from the Electoral Act because we took the view that it would not be within powers of this court to order the president directly to postpone the election.
“It would be within the powers to… direct the IEC to request the president to postpone the election because the election, if held, would not be free and fair.”
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