When the Final Click Becomes a Constitutional Question

By Teboho Mokoena

The Constitutional Court is currently hearing an urgent application brought by the African National Congress (ANC), seeking to overturn an Electoral Court ruling that disqualified 181 of its councillor candidates from contesting the November 2026 local government elections.

The disqualification affects candidates in six municipalities: Port St Johns, Ingquza Hill, Walter Sisulu and Sundays River Valley in the Eastern Cape, uMshwathi in KwaZulu-Natal, and Mangaung in the Free State.

The Electoral Commission of South Africa (IEC) and the Democratic Alliance (DA) oppose the ANC’s application.

At the heart of the dispute is a relatively simple but significant question: does the failure to click a final submission button on the IEC’s electronic nomination system amount to non-compliance with electoral law, or merely non-compliance with an administrative procedure designed to facilitate that law?

The ANC’s Argument

The ANC argues that it completed all the substantive requirements necessary for candidate nominations before the prescribed deadline.

According to the party, it successfully uploaded all candidate information and supporting documentation and paid the required deposits before 5 pm on the closing date.

The dispute arises because the ANC allegedly failed to click the ‘Submit as Final’ button on the IEC’s electronic nomination platform for the affected candidates.

The ANC contends that the final submission button is a software design feature and not a legal requirement contained in either the Electoral Act or the applicable electoral regulations. It argues that excluding candidates on this basis elevates form over substance and results in the disenfranchisement of voters over what is essentially a technical omission.

The ANC’s case appears to rest on three principal arguments.

The Requirement Is Not Contained in Law

The ANC argues that the obligation to press the final submission button is found only in IEC Standard Operating Procedures (SOPs) and system design processes, rather than in legislation or formally promulgated regulations.

Its contention is that any mandatory requirement capable of disqualifying candidates from an election ought to be expressly provided for in law and subjected to the normal regulatory processes applicable to electoral rules.

SOPs Cannot Override Legislation

Even if the requirement exists in IEC operating procedures, the ANC argues that internal administrative mechanisms cannot supersede the Electoral Act or its regulations.

In this view, SOPs are intended to facilitate the implementation of the law, not to create additional legal requirements that carry the consequence of excluding candidates from participating in an election.

Voters Should Not Bear the Consequences

The ANC further argues that the ultimate victims of the disqualification are not party officials who may have made administrative errors, but ordinary voters whose political rights are protected by Section 19 of the Constitution.

Section 19 guarantees, among other rights:

• The right to make political choices and participate in political activity;
• The right to participate in free, fair and regular elections; and
• The right to vote and, where eligible, stand for and hold public office.

The ANC therefore argues that voters’ rights should not be curtailed because of a procedural omission that did not affect the substantive validity of the nominations.

The IEC and DA’s Argument

The IEC and the DA adopt a different position.

They argue that clicking the final submission button is not a mere technicality but an essential step in the nomination process. In their view, the button serves as the formal act by which a political party confirms, verifies and closes its nomination submissions.

The IEC points out that hundreds of other political parties successfully complied with the process.

Significantly, the ANC itself complied with the same requirements in 251 other municipalities and in previous elections.

According to the IEC and the DA, allowing the ANC to complete the final step after the deadline would undermine electoral certainty, create unequal treatment among political parties and establish a precedent that could complicate future elections.

Their argument is that elections require clear deadlines and objective standards. Once those deadlines pass, exceptions should not be made merely because compliance was largely completed but not formally concluded.

The Real Legal Question

While much attention has been directed at the role of the SOPs, the real legal question may be broader than that.

The issue is not necessarily whether SOPs exist, but whether the law requires candidate nominations to be formally submitted by a specified date and time, and whether the final submission process is an indispensable component of that legal requirement.

From this perspective, SOPs may not themselves be law, but they may be the mechanism through which legal compliance is achieved.

Without operational procedures, regulations could become difficult, if not impossible, to administer in practice.

If the Court concludes that clicking the final submission button was an essential part of the legal act of nomination, the ANC’s failure would constitute non-compliance with the law rather than non-compliance with an internal procedure.

Conversely, if the Court finds that all substantive legal requirements had already been met and that the final submission button merely served an administrative function, the exclusion of candidates may be viewed as disproportionate.

The Disenfranchisement Argument

A further issue concerns the ANC’s reliance on voter disenfranchisement.

The ANC does not allege that it was subjected to different rules from other political parties. Indeed, it concedes that the same nomination procedures were applied universally and that it has successfully complied with them in previous elections and in most municipalities affected by the current election.

This weakens any argument that the SOPs were designed to target the ANC or its supporters specifically.

Nevertheless, the ANC’s constitutional argument focuses on the rights of voters rather than the conduct of the party itself.

The party’s position is essentially that voters were in no way responsible for any administrative shortcomings and should not lose the opportunity to vote for ANC candidates because of mistakes made by party officials.

The constitutional question therefore becomes whether protecting the integrity and certainty of the electoral process justifies limiting the political rights of voters in the affected wards.

A Possible Constitutional Court Approach

The Constitutional Court will likely be required to balance two important constitutional objectives.

On the one hand are the political rights guaranteed by Section 19 of the Constitution, including the right of citizens to participate meaningfully in democratic elections.

On the other hand are the principles of legality, fairness, certainty and equal treatment that underpin the administration of elections.

The Court may ultimately conclude that voters’ rights should not be curtailed where all substantive nomination requirements were met and the omission was purely procedural.

Equally, it may conclude that certainty and predictability are indispensable to a free and fair electoral system, and that deadlines only have meaning if they are strictly enforced.

Conclusion

The case is fundamentally about more than a button on an electronic system. It is about the relationship between substantive compliance and procedural compliance in a constitutional democracy.

The Constitutional Court will have to determine whether the final submission requirement forms part of the legal act of nomination or whether it is merely an administrative mechanism used to facilitate compliance with electoral law.

If the Court regards the requirement as procedural, it may be inclined to prioritise the constitutional rights of voters.

If it regards the requirement as a substantive component of lawful nomination, it may uphold the Electoral Court’s ruling in the interests of electoral certainty and equal treatment.

Whatever the outcome, the judgment is likely to become an important precedent on the balance between electoral administration and constitutional rights in South African democracy.