181 ANC councillor candidates cut from the ballot, now the party takes the fight to the Constitutional Court

The ANC wants the Constitutional Court to overturn a ruling that cut 181 of its councillor candidates from the November 4 local government elections, arguing that the Electoral Commission of South Africa used a software button that appears in no law to disqualify them.

Advocate Daniel Burger, representing the ANC, told the court on Monday that the commission could not rely on the “submit as final” button in its online nomination system when that requirement is not expressly set out in electoral legislation.

“Because the fact of pressing a button or not, this disenfranchises people,” Burger told the court. “And where I’m sitting, goes against the grain of a person’s right to vote, and what the Constitution is all about. Indeed, and the right to stand for office. All the rights in Section 19 of the Constitution. And nowhere is this button in any legislation, gazetted notice, it is just a functionality button.”

He said the requirement to click “submit as final” does not appear in the Electoral Act, the regulations, a Government Gazette notice or the election timetable.

Accepting the button as a legal requirement, Burger argued, would hand the commission power to change the conditions for submitting nominations through adjustments to its software, without formally changing the law.

“The bigger problem, of course, is that it’s open to the electoral commission to change that functionality at any time without publication in the Government Gazette,” he said. “And so, if that is part of the law, it’s actually open to the Electoral Commission to change the law from time to time as it sees fit. That cannot be a plausible interpretation.”

The ANC’s case is that it entered its candidates’ details, uploaded supporting documents and paid the required deposits before the August 28 deadline. It argues that the information held on the commission’s system should have counted as its final submission when the deadline expired, even though the final confirmation step had not been completed.

At the heart of the dispute is whether the commission can treat the failure to complete that step as sufficient grounds to prevent candidates from contesting an election, when the information needed for their nominations was already available on the system.

Burger linked the dispute to section 19 of the Constitution, which protects political rights, including the right to make political choices and to stand for public office. He argued that the exclusion of candidates also affects voters who might wish to support them.

The judges questioned whether nominations uploaded before the deadline could be regarded as final once the cut-off time passed, or whether a party had to take a separate step to confirm that it intended to contest with those candidates.

The bench also examined the difference between nominations submitted electronically and those delivered physically to the commission. The justices asked why a physical nomination handed to the commission before the deadline could be treated as final once the cut-off time passed, while information already uploaded electronically would remain incomplete if the party had not clicked the final submission button.

Burger’s answer was that the deadline prevented parties from making further changes, meaning the information available at that point should be treated as the final version of their nominations.

During the hearing, Burger also referred to the party’s attempts to resolve the matter before the deadline. He told the court that the ANC had contacted the commission’s help desk during the final half-hour of the submission period to report difficulties with the button.

He said the commission’s affidavit acknowledged that a call had taken place and did not contradict the ANC’s account of the conversation. The alleged technical difficulties remain disputed, however, and the fact that a call took place does not by itself establish that the system malfunctioned.

The Electoral Court previously found that the final confirmation step formed part of the electronic nomination process and that the ANC’s failure to complete it meant the affected nominations were invalid. That is the ruling the party now wants the Constitutional Court to set aside.

Sunday World reported on the ANC’s arguments on 2026-10-12.

For voters in the municipalities concerned, the practical question is whether the names they expected to see on the November 4 ballot will be there at all. For the commission, the question is whether a step built into its own software can carry the force of law when no statute, regulation, gazette notice or election timetable names it.

The court has yet to rule. The Enquirer will follow the judgment when it is handed down.