Elections cannot be won by default, says Duarte, slamming DA case against IEC

“Elections should be won fair and square, not because competition has been elbowed out.”

This is according to ANC acting secretary-general Jessie Duarte, as she responded to the DA’s court bid to challenge the Electoral Commission’s interpretation of a Constitutional Court order, which led to its decision to reopen the candidate nomination process for the 2021 local government election.

The apex court denied an application from the IEC to postpone the election and ordered that the commission determine if it was possible to hold a voter registration weekend before the polls, which it said must take place between October 27 and November 1.

The IEC determined that a voter registration weekend could take place and, as part of this process, reopened the candidate application process.

This gave the ANC a desperately needed lifeline after the party failed to register candidates in several municipalities before the initial deadline - with the party admitting it would lose control or no longer be the official opposition in dozens of councils.

In the wake of the IEC decision, several political parties, including the IFP, EFF and DA decried this as an unfair advantage.

The DA lodged an urgent application to set aside the IEC’s decision. In its papers, filed last week, it said the decision was unconstitutional and unlawful.

The party’s Werner Horn said in an affidavit that the ConCourt’s decision allowed for the reopening of the voters’ roll due to the voter registration drive and not the candidate registration process.

“It is not a licence to make amendments that are unconnected to reopening the roll and which the commission already decided not to make. Yet that is what the commission has done,” he said.

In a 49-page answering affidavit, Duarte said the DA’s case was without merit.

“The fundamental problem with the DA’s case is that it completely ignores the plain language of the [ConCourt] order, it inserts words into the order to suit its case - as opposed to reading the order on its own terms, and it reads the order in complete isolation from underlying statutory and constitutional framework in a manner that belies this court’s order and the exercise of power by the Electoral Commission,” she said. 

The ANC said the order did not prohibit the IEC from amending the timetable to allow for a reopening of candidate nomination processes, adding that it was quite clear the IEC was permitted to amend the timetable, provided it was reasonably necessary for the running of a free and fair election.

“The argument advanced by the DA is at odds with the express language in the order. The DA seeks to impermissibly insert words into the order.

“The DA’s argument is at odds with the aims of the constitution — it invites this court to exclude, rather than include, citizens from being able to contest the elections — and all of this for completely self-serving reasons. Plainly, this is untenable and its application must fail,” said Duarte.

While the DA did not like the IEC’s decision, this was inconsequential, said Duarte, adding that the party had failed to make its case on the irrationality of the decision.

“This court can only interfere with the Electoral Commission’s decision if the DA is able to demonstrate that the decision is either irrational or unreasonable. It has manifestly failed to make out a case on either of those grounds — in fact, not one mention is made about the irrationality or unreasonableness of the commission’s decision. This is fatal to its case,” she said.

As it stands, said Duarte, the DA’s application must be dismissed with costs, more so because of the accusations made by its federal council chairperson, Helen Zille, who had accused the ANC of knowing in advance what the court was going to rule.

“In respect of the costs, the DA does not come to this court with clean hands. It has publicly made spurious, unfounded and vexatious accusations about this court and the ANC, in which it claimed that this court had leaked information about the outcome of the Electoral Commission’s postponement application in advance of the hand-down,” Duarte said.

The party said Zille’s comments were false and made without regard to the impact they would have on the public confidence and perception about the court’s reputation, the ANC said.

“Its conduct was a frontal attack on the independence of the judiciary — clearly aimed at scandalising this court and the integrity of the judges,” Duarte said.

The ANC maintained that the commission acted well within the constructs of the order, as well as in terms of its powers, as stipulated in the Local Government Electoral Act of 2000. 

“The DA cannot seriously contend that the ANC, other political parties and independent candidates should be denied the opportunity to contest the elections simply because it spent money on campaign material, the money was for its own benefit, which has no bearing on what happens to the ANC. The DA’s inconvenience cannot compare to a denial of fundamental rights,” the affidavit read.

The ANC further accused the opposition of wanting to win voters through unconstitutional means.

“The DA is seeking to win an election through technicalities and without meaningful competition. That cannot, on any measure, be a proper exercise of the right to vote and participatory democracy. Elections should be won fair and square, not because competition has been elbowed out,” said Duarte.

She further dismissed the DA’s assertions that it would cost the ruling party nothing to contest after being given a lifeline.

“The ANC is ready and available to contest in those wards, and it will spend money and political resources. This is not ‘unfair’ on the DA — it’s an election, plain and simple.

“The reality is that the DA wants to win the elections uncontested and without any real competition. Elections cannot be won by default — the DA must earn the vote and the voter must choose the DA. That is how it works,” charged Duarte.