By Lehlohonolo Lehana.
The Constitutional Court of South Africa heard arguments and reserved judgment in the high-stakes legal battle between the African National Congress (ANC) and the Electoral Commission of South Africa (IEC) over the exclusion of 181 ANC candidates for the 4 November 2026 local government elections.
The ANC missed the candidate nomination deadline in six municipalities: Port St Johns, Ngquza Hill, Walter Sisulu and Sundays River Valley in the Eastern Cape; Mangaung in the Free State; and uMshwathi in KwaZulu-Natal (KZN).
Arguments presented to the court by the ANC mirrored its Electoral Court application which stated the party had uploaded the required info, but did not click the final submit button.
Representing the ANC, advocate Daniel Berger argued that the party had complied with the law by completing the electronic nomination forms and uploading the required annexures before the 5pm deadline on 28 August.
“The ANC completed all the electronic forms in the system and uploaded all the annexures in the system before the 5pm deadline. Therefore, the ANC complied. The regulation says nothing about an additional or final step after all the annexures have been loaded into the IEC system,” Berger said.
Berger said the ANC is not undermining the Electoral Commission of South Africa (IEC) by raising technical problems with its system. He further said the case centres on how the Electoral Act and regulations should be interpreted.
Deputy Chief Justice Dunstan Mlambo pointed out that the ANC had complied with the OCNS parameters in all other municipalities, forcing Berger to change tact.
“We don’t have an issue with the submit button, we have an issue with the interpretation that says if you don’t press the button, you have not submitted your documents, and you’re therefore excluded from the election.
The IEC disputed this account, maintaining that its online nomination portal functioned properly and that saving information on the system does not constitute a formal submission. The commission argues that the deadlines must be applied consistently to all affected political parties to protect the integrity of the electoral process.
Advocate Terry Motau SC, representing the IEC, has told the Constitutional Court the commission investigated the alleged system problems but found no evidence to support the claims.
Motau has argued that the ANC initially relied on alleged technical problems to explain its failure to complete the electronic submission process, but is now advancing a different argument based on an interpretation of electoral legislation.
“The alleged technical difficulties were not borne out by the objective facts, i.e., the system was checked in accordance with what the ANC had said, and those difficulties were not found,” said Motau.
“Even before this court, there is a half-hearted pressing of the alleged difficulties. But what the ANC then seeks to contend, it says, ‘Well, it doesn’t matter because those are immaterial’.”
Justice Rammaka Mathopo suggested that should it rule in the IEC’s favour, it may send a message that fundamental rights could be taken away “at the click of a button”.
Motau disagreed, stating that the issue is around whether the IEC had the power to prescribe electoral regulations and whether parties were allowed to be selective with which rules they followed.
“The message that the IEC, in contending that this court should, is that the power to prescribe a regulation does include the power to exhaustively list in that regulation the operational requirements of that electronic system.”
“In circumstances where a party has used that system, complied with the requirements that are not listed in the regulation, cannot yield an outcome where it seeks to selectively isolate one of those issues that are not expressly stipulated.”
“Prescribing requirements is an element of fairness. Insisting on rigid adherence promotes fairness,” Motau concluded.
A friend to the court, the DA’s legal representative, Advocate Michael Bishop, argued that the ANC had not validly submitted its candidate lists because it failed to click the “Submit as Final” button.
Bishop warned that ruling in the ANC’s favour could create significant administrative difficulties, as dozens of other parties and more than 2 000 candidates were in the same position.
He argued that the IEC would be constitutionally required to treat all affected parties equally, potentially complicating ballot preparations and the holding of free and fair elections.
Justice Mlambo said the court would reserve its ruling, while stressing that it would not delay a decision given that the elections are taking place next month.