ActionSA Files Papers with the Electoral Court Against the IEC

ActionSA has filed an urgent application with the Electoral Court against the Independent Elections Commission (IEC) for its failure to remedy the absence of ActionSA’s name from the ballot papers. A copy of our papers can be found here.

The IEC had until 10h00 am today to file their notice of intention to oppose the matter or abide our request to the court. We have since learnt that the IEC has appointed attorneys and is asking for the matter to be heard on Monday, 11 October 2021. The dispute arises from the IEC’s presentation of final draft ballot papers for wards. The draft ballot papers provide the names of the ward candidates, the logos of the parties and the abbreviated names of the parties.

In the IEC’s current ballot paper, only our logo appears – the party’s name does not appear and an empty space has been left in its place. The implication of this is that ActionSA supporters will be limited only to a candidate name and a logo to identify the party on the ballot, while other parties will have the benefit of their name or popularised acronym appearing.

It is our contention that our party does not have an abbreviated name. One of the reasons ‘ActionSA’ was chosen as our name is that it complies with the IEC’s own 8-character limit on abbreviated party names, thus, our party’s name could always be always used in full wheresoever it would be required.

Having immediately raised our objection to the draft ballot papers with the IEC, both during and after the ballot sign-off held over the 2nd of October, ActionSA was initially informed that the issue would not be addressed as the printing of the ballot papers had already commenced.

The IEC’s assertion that the purpose of the presentation of the draft ballot papers was solely for political parties to sign-off and not intended to remedy defects that may be attendant to the registration of identifiers, is irrational. Indeed, the elaborate exercise undertaken by the IEC is of no value to itself and political parties where political parties are denied the opportunity to identify any issues with the draft ballot papers, in order to either confirm or object to any visible errors and/or omissions. Further, it is evident that section15(2)(c) of the Electoral Commission Act, 51 of 1996, (the Act) requires an abbreviation, if any, to be registered and that such abbreviation should not exceed 8 letters. ActionSA did not register an abbreviation as it always sought to be identified at all times by its registered name, which is 8 letters long.

In our court papers, we have affirmed that there is no legal basis for the Commission to refuse our demand to remedy the gross omission of ActionSA’s name from the ballot paper and are confident the courts will share this perspective.

In the coming litigation, ActionSA is to be represented by Advocate Adila Hassim SC, a seasoned constitutional and administrative law legal practitioner who has appeared in various divisions of the High Courts and the Constitutional Court and recently represented the families of victims in the Life Esidimeni Inquest.

It is of interest to note that in its subsequent communication to the media, the IEC further, erroneously, argued that the basis for their refusal is premised on the idea that:

“…at the point of registering as a party, ActionSA elected not to register an abbreviated name or acronym. ActionSA, in their documents in which they applied for registration as a political party, and which must be publicly lodged in terms of the regulations, responded with a “Not Applicable” in the space where the political party was required to indicate its abbreviated name. The party went further to indicate that “there is no abbreviation of the name of the party” as part of its application documentation. The application was lodged in Government Gazette 43940, published on 27 November 2020.”

We are confident that the IEC’s legal reasoning and decision is patently unlawful and unconstitutional based on:

  • The decision is irrational and inconsistent with section 15 of the Act which does not require a party to register an abbreviated name.
  • The decision to exclude ActionSA’s name from the ballot paper, based on the Commission’s chosen design of the ballot paper, was taken because irrelevant considerations were taken into account or relevant considerations were simply not made.
  • The decision violates Section 19 of the Constitution which provides that every citizen is free to make political choices, which includes the right to form a political party and the right to free, fair and regular elections for any legislative body established in terms of the Constitution.
  • The decision violates section 190 of the Constitution, which enjoins the Commission to manage the elections of national, provincial and municipal legislative bodies in accordance with the national legislation and ensure that those elections are free and fair.

If the local government elections were to proceed under the present circumstances, with ballot papers that do not reflect the name of ActionSA, this would be unfair and prejudicial both to ActionSA and to voters and will thus render the election not free and fair.

By refusing to remedy this issue when presented to them, the IEC is in breach of its overarching responsibilities to ensure free and fair elections – a critical component of which is ensuring voters are able to identify their political parties in various ways that include the party logo, party name, acronym and party leaders. 

It is deeply ironic that it was this very responsibility which lay at the heart of the Commission’s refusal to register ActionSA. At the time, the Commission cited a study by the Human Sciences Research Council (HSRC) (Page 25) which found that names and abbreviated names are the most important party identifiers on the ballot paper. How the Commission can hold this view when denying our registration and disregard it when denying our present request, defies all logic.

Equally, there is no provision in law which limits or empowers the IEC to rely solely on a party’s registration documentation for the construction of ballot papers – our law remains silent on what information goes into a ballot paper. In the absence of such provisions of legislation, the IEC must act in the interests of free and fair elections and administrative justice. As a matter of fact, ward candidate names are submitted by political parties in local government elections and the faces of party leaders in national and provincial elections – neither of which has anything to do with registration documentation.

It is disappointing that the IEC has elected to deprioritise its obligations towards ensuring free and fair elections and focus rather on forms and logistical considerations.  

It is equally disheartening that in our brief time as a political party, we have been beset by issues with the IEC. We have been refused to register as a party and we have been ignored in our concerns about the Multi-Party Democracy Fund that the IEC openly advocates for people to exclusively fund political parties represented in Parliament. The exclusion of our candidates from the candidate list published this past week also raised significant concerns which took several days to resolve with the IEC.

We will no longer endure arbitrary and irrational exercise of power by the IEC. They are a Constitutional body with obligations to South Africans and must conduct themselves as such.