ActionSA has been advised yesterday afternoon, by the IEC that its appeal has been upheld in respect of the rejection on the grounds of the Heraldry Act, but upheld the Commission’s decision to reject the application on the grounds of the similarity.
ActionSA is shocked by the decision of the Commission, and the basis upon which the Commission has rationalised its decision. We remain deeply concerned that a Chapter 9 Institution, charged with safeguarding our electoral democracy, can make important legal decisions in this manner.
The concession by the Commission to overturn the decision of the Chief Electoral Officer, included the remarkable concession that the Commission has no evidence to suggest that the South African flag is even protected under the Heraldry Act of 1962.
This is a demonstration of the flawed decision-making process followed by the IEC, which raises the question of how they can correctly analyse a subjective issue of similarities when they did not correctly assert the objective matter of the law.
The IEC, in their reasons, relies heavily on a study conducted into voters and elections despite the fact the very same study says “it [the report] does not allow for generalisation to the broader public.” The study cites this because it involved 91 interviews and 8 focus groups, something which the study itself recognises is not statistically representative. Yet the IEC relies on generalisations made in the report such as the reasonable voters ability to discern subtle differences, the IEC stated that: “Discerning subtle differences in the names and logos of political parties will escape many reasonable voters.”
What is also rather remarkable in the decision to dismiss the appeal the IEC accepted that they used to register political parties with similar logos but because there were fewer political parties this was acceptable to them. The IEC stated that: “In the past, when few political parties sought registration, the CEO could afford to be generous in the exercise of the discretion to register them.”
Interestingly the offer made in our appeal, which the regulations make provision for, for ActionSA’s marketing team to present a professional perspective on the differences between the logos, and the inconsistencies with other logos previously registered, was not taken up.
ActionSA is currently consulting its legal team to study the Commission’s reasons to uphold the decision of the Chief Electoral Officer.
We are of the view that any effort to alter the logo would likely produce the similar problem precisely because there are over 600 political parties, a situation caused by the IEC’s failure to deregister parties, in accordance with its own regulations, that are not represented and do not contest general elections.
It is clear that ActionSA stands an excellent prospect of successfully reviewing the IEC’s decision by the High Court on an urgent basis, however ActionSA must now determine weigh the merits of its options.