Electoral Court delivers praiseworthy rulings for IEC in candidate list cases

With commendable speed, the Electoral Court heard all four cases concerning candidate lists and the Electoral Commission of South Africa (IEC) on 15 September 2026. Within minutes of hearing the submissions, the court delivered its orders in three cases. In the last case, heard after normal hours, the court issued its order the following morning. Written judgment followed eight days later. 

One case was an intra-party dispute in which the commission was cited as an interested party. In tandem with the speed with which the court delivered judgment, the commission substituted the candidates as soon as the order was granted.

Equally praiseworthy was the ability of the court to muster sufficient judges with experience in electoral law to constitute four different panels. Considering that three of the cases concerned the same issue – the failure to submit candidate lists timeously – having different judges decide the same issue and arrive at the same conclusion added weight to the “rigid” enforcement of the principle. 

The principle

What was the principle? At stake was the principle set in the Constitutional Court of “rigid adherence” to electoral laws, paradoxically, for the sake of fairness for all. In this instance, it was compliance with the legal requirements for nominating candidates for local government elections using the commission’s prescribed Online Candidate Nomination System (OCNS).  

The political parties had failed to complete the submission of their candidate lists by 5pm on 28 August 2026. One of the parties, the ANC, contended that “glitches” in the OCNS prevented it from completing its submission. The commission demonstrated irrefutably that the OCNS functioned optimally. Then that contention fell away. Only the application of the law mattered.  

Highlights

Laudably, the court applied first principles to the merits of the ANC appeal. Fortifying the foundation for the rigid application of electoral law, the judgment highlighted the following:

• Any act required in terms of the law must be performed by no later than 5pm on the date stated in the election timetable;

• Electoral deadlines are aimed at achieving the “important constitutional purposes of fairness, certainty and the orderly administration of elections”;

• If a party fails to comply with the election timetable, or any other election regulation, that party will be excluded from participating in the elections “by operation of law”; and

• Neither the court nor the commission has a general power or discretion to condone noncompliance with the electoral laws. 

As the commission’s case rested on these well-established principles, the court, predictably, found in its favour on the merits. Just as it did in five similar cases in the 2024 national and provincial elections. As did the Constitutional Court in ACT v IEC and two other cases, to further find that the parties had only themselves to blame for failing to submit their candidate lists timeously. The Constitutional Court refused leave to appeal in ACT v IEC. So, in the 2026 local government elections, should the Electoral Court have granted leave to appeal in ANC v IEC?

By operation of law 

In Operation Dudula v IEC, heard on the same day as ANC v IEC, the court dismissed the application, saying that the party’s exclusion followed by operation of law. That means that the right or duty came into effect automatically. If certain facts exist, then the rule applies irrespective of intention or any act. For law to apply automatically it must be clear, not open to interpretation and the exercise of discretion. 

Typically, if tax must be paid to SARS on the last day of a month, but payment is not made, then by operation of law, penalties become payable automatically. As soon as South African citizens turn 18 years, they are eligible to register to vote. Similarly, noncompliance with the OCNS and the election timetable automatically excludes a party from participating in an election by operation of law.

The usefulness of governing by operation of law is certainty, predictability, fairness, efficiency, affordability and accessibility. Litigation is avoided. 

Submit as final

Clicking on “submit as final” was such a measure that came into effect by operation of law. The OCNS required political parties to complete the electronic nomination forms, upload them and then click “submit as final”. The noncompliant parties knew the rules and what they had to do to successfully complete the submission of their candidate lists. They had received extensive training. The ANC had demonstrated this by timeously completing the bulk of its submissions for its candidates.

Had there been any ambiguity about the law, the interpretation and the exercise of discretion would have been necessary. Then the law could not apply automatically and by operation of law.

Was the ANC case about the interpretation or automatic operation of law?

What was the dispute about?

The ANC had uploaded the relevant nomination documents onto the OCNS but had failed to click “submit as final” in respect of some municipalities. 

What the ANC actually wanted was for the court to find that uploading the nominations was sufficient compliance. Essentially, it wanted a waiver or condonation of the “submit as final” requirement. 

Surprisingly, the court found that the ANC case was about the “novel and important question concerning the legal significance of the ‘submit as final’ function”. However, the significance of clicking is an intensely factual enquiry to assess whether it is material to the OCNS or is an inconsequential fancy gadget. 

As a question of fact it was not appealable. So how did the ANC get into court?

Powers of the court

The court may hear appeals “against any decision of the commission but only if such decision relates to the interpretation of any law”. So, if there is no decision, there is nothing to interpret. 

The ANC brought the matter to the court alleging that the commission “took a decision” that turned on an interpretation of law. The commission contended that it made no decision because the rules applied automatically by operation of law.

Decision? 

In its court papers, the ANC alleged that the commission decided on 1 September 2026 not to accept its party lists and candidate nominations at a meeting of the National Political Liaison Committee and confirmed this at a media briefing the following day.

Commission decisions are made at meetings of the commissioners. They are recorded in writing.

Curiously, the court found the commission’s “decision” and “interpretation” to be in the exchange of the following two emails between the parties:

1. On 2 September 2026, the ANC asked the Commission to:

“explain the technical and legal effect of the ‘submit as final’ function, and identify what information or act, additional to the uploaded data, is conveyed by that function”.

2. On 4 September 2026, the commission replied, giving the explanation, the crux of which is the following:

“The final submission step… communicates the party’s final and unequivocal decision to electronically lodge the nomination with the Electoral Commission.

“It also distinguishes electronic submissions by a party from information that remains incomplete, provisional or subject to change.”

What the ANC asked for was an explanation, a clarification, not a decision. The commission gave an explanation. Regrettably, the court found that the commission’s explanation was its decision and that the commission had interpreted the electoral laws.

Contradictions between the ANC and the court about what the decision was and when the commission made it, casts doubt that favours the commission’s case: no discretion, no decision, no interpretation. 

The court should have found that the noncompliant lists were excluded by operation of law and refused leave to appeal. That would have encouraged consistency and discouraged unmeritorious litigation.

Political rights

Paradoxically, the rigid application of law seems inimical to transformative, constitutionally protected political rights, that favour enfranchisement. Tension between enfranchisement and disenfranchisement is ever present in electoral disputes. Precisely to enable enfranchisement, laws exist to be applied fairly and equitably. Enabling enfranchisement is the responsibility of not only the commission and the courts, but also of political parties and candidates. When disenfranchisement results from noncompliance with the rules, then responsibility must fall at the feet of the noncompliant persons. DM