The Independant Electoral Commission (IEC), the Electoral Court and political parties who failed to adhere to the rules and regulations relating to the upcoming elections 

The firm recently attended the Electoral Court[1], acting on behalf of the Independent Electoral Commission (IEC), for the purpose of assisting the IEC with matters wherein Political Parties had failed to comply with the rules of the Electoral Act, 1998 (“the Electoral Act”).  The non-compliance concerned the submission of lists of candidates for the upcoming election to the chief electoral officer.

According to section 27 of the Electoral Act, it is mandatory for the candidate lists to be accompanied by the prescribed signed undertakings binding the party and its members to the code, signed declarations of each candidate on the list, acceptance of nomination by each candidate as well as payment of a deposit, the amount of which is prescribed by the Commission.

There are two ways in which the above submissions can be made, either via the IEC’s online portal, also known as the Online Candidate Nomination System (OCNS), or by hand at the IEC’s head office situated in Centurion.

The Political Parties in question failed to comply with section 27, by failing to timeously submit their candidate lists, supporting documentation or make payment of the requisite deposit, then opted to institute proceedings against the IEC, thereby passing the buck onto the IEC, by blaming the IEC and alleging that its online portal experienced technical failures and prevented them from complying with their obligations.

According to the Electoral Commission timetable, which was published in the Government Gazette[2] on 24 February 2024, the cut off date and time for candidate lists and nominations was 8 March at 17h00.

The one party alleged that the IEC’s online portal kept terminating the session, thereby making it difficult for them to upload their documents. It made the further allegation that the country was experiencing a national internet crisis on the day in question and that was the reason for their failure to comply with section 27. They went on to state that after the 17h00 cut off, they forwarded the remainder of their documentation through to the IEC via email, and hence they should be permitted to participate in the upcoming election.

Another party requested the court to re-open the opportunity for political parties to comply with the requirements of section 27 of the Electoral Act, as they alleged that the deadlines were impossible to fulfill.

We pause here to point out that the national internet crisis actually occurred on 14 March 2024, not 8 March 2024.

Further, this comes on the back of scores of Political Parties who did, in fact, manage to comply with section 27 and to submit their candidate lists and nominations via the IEC’s online portal on time.

The Electoral Act is specific and states that the documentation must be submitted in the ‘prescribed manner’.

In addition, the IEC did everything that could be reasonably expected of it to ensure that all parties were able to participate in the election. It provided training on how its online portal worked and it provided constant communication and technical support by email, phone and WhatsApp. It designed and operated a system that was easy to use and allowed parties that had properly prepared to capture and upload all the necessary supporters within a day.  

Our matter was heard on 15 April 2024, and the hearing was a consolidated hearing which heard 5 matters as the issues were substantially the same. The Electoral Court heard extensive arguments from all of the legal representatives of the various Political Parties, however, ultimately all five applications were dismissed.

The Electoral Court has repeatedly held: “Holding parties to strict deadlines does not detract from the fairness of elections, it promotes fairness. The playing field was the same for all political parties. Most met the requirements, some … did not. That is not an indication of unfairness. That occurs in almost every election. Strict compliance with deadlines is an essential requirement for free and fair elections.”

This was a massive win for the IEC and is a warning to all Political Parties that the IEC is a creature of statute and non-compliance with legislation will not, under any circumstances, be condoned.

We are glad to have had the opportunity to assist the IEC in its endeavors to ensure strict compliance with the Electoral Act and to guarantee that the election process remains free and fair elections in a society based on democratic values, social justice and fundamental human rights.

[1] Sitting at the Supreme Court of Appeal, Bloemfontein (SCA).

[2] Government Gazette number 50185.