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Wednesday, 08 May 2024 12:15

ConCourt hears IEC failed to ensure its online system worked properly.

By Lehlohonolo Lehana.

The Constitutional Court (ConCourt) has been hit with several urgent applications relating to the 2024 general elections, less than a month before South Africans head to the polls.

On Wednesday, 8 May, three political parties were seeking urgent intervention, claiming that technical faults and "hanging" in the online registration system of the Electoral Commission of South Africa (IEC) barred them from registering on time.

The 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 ConCourt has ruled that the cases brought by the Labour Party, the Afrikan Alliance of Social Democrats (AASD) and the African Congress for Transformation (ACT) will be heard in tandem.

A fourth case was submitted by the Defenders of The People party on the same issue, but the court is yet to provide directions on how it will be handled.

The IEC has opposed the applications.

The newly formed Labour Party, the Afrikan Alliance of Social Democrats and the ACT have all raised a similar issue, saying the IEC "unfairly excluded" them from participating in the election.

During the court proceedings, ACT has asked the Constitutional Court (ConCourt) to consider postponing the upcoming elections only as a last resort.

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.

The advocate pointed out that the judgment also stressed that rights may not be limited without justification.

He seemingly suggested 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.

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.

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.

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.

Electoral Court had dismissed claims by the Labour Party, that the IEC's online system is the reason it could not field all its candidates across the various elections on time. 

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.

AASD's lawyer Advocate Motebang Ramaili SC maintained that his client had adhered to the IEC's submission process and faulted the commission for not notifying them of any compliance issues.

The IEC defended the nomination system, attributing the parties' failure to meet the deadline to poor time management and filing methods.

It also highlighted financial and logistical implications of postponing the elections, estimated at R500 million, and the unfairness it would pose to compliant parties.

Judgement has been reserved.

Meanwhile IEC said it will announce the election results on Sunday, June 2. This is the first time the IEC will announce the results on a Sunday, as election results have been traditionally released on a Saturday.

The Results Operation Centre for the May 29 elections will be at the Gallagher Estate in Midrand, Johannesburg.

IEC has stressed that it has concluded with the ballot and has shipped ballots abroad already. IEC officials said no more changes could be made to the ballot or the lists, and in the case of deaths or expulsions, those would have to be amended after the elections.