We have ‘no capacity’ to change ballot papers now, even if we erred on Action SA name - IEC

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IEC barrier tape at a voting station. (Photo by Gallo Images/Darren Stewart)
IEC barrier tape at a voting station. (Photo by Gallo Images/Darren Stewart)
  • The IEC says it has no capacity to correct ballot papers now, even if it did err.
  • The IEC has asked that the court compel ActionSA to allow the elections to go ahead and only lodge an after-the-fact application should it still feel the omission of the name affected its fortunes. 
  • Other remedies proposed by ActionSA - such as using stickers with the party's name - were shot down by the IEC.

While making submissions to the Electoral Court on Thursday - on the urgent application brought by ActionSA to compel the Electoral Commission of South Africa (IEC) to add its name which was omitted from the ward ballot papers for the looming municipal elections - the IEC said it had no capacity to rectify the matter with the elections just over a week away. 

The IEC has urged the court not to rule on the matter, but rather request Herman Mashaba’s party to allow the municipal elections to go ahead, and rather lodge a ex post facto (after the fact) application should the omission of the name prove to have affected the party in the polls. 

"The commission also lacks the capacity to comply with such and order [that compels it to reprint ward ballot paper to use stickers or stamps to add the omitted ActionsSA name]," said advocate Michael Bishop who represents the IEC in the matter. 

He said the special vote was set to start on 30 October, hence the ballot papers would have to be at the voting stations by 29 October. This meant that any reprinting of the ballot papers would prove impossible. 

READ | ActionSA wants court to force IEC to attach stamps with its name on election ballot papers

Bishop also added that the remedy proposed by ActionSA legal representative advocate Adila Hassim of either using stickers, as was the case when the IFP joined the 1994 elections at the 11th hour, was not possible for two reasons. 

"The sticker makes the party stand out and would give ActionSA an unfair advantage," said Bishop. 

He also argued that, while Hassim was saying that a service provider has been identified who could supply stamps with the name of ActionSA, and which could be added to all the ballot papers within six days, the timeframes were not clear about whether they included weekends.

Even if they did, there would still be no guarantee that deadlines would be met, considering that parties also needed to factor in the time it would take the court to make a ruling on the matter. 

Bishop suggested that the court should rather urge Mashaba’s party to hold off on its court challenge and instead approach the court when it had been proven that the omission if the name had indeed affected his party’s fortunes in the municipal elections. 

"We will only know the real impact after the election. Details on how many voters will actually be confused... how many wards... will that confusion affect the outcome of the elections, will all became clear after the process. I have explained earlier why the commission thinks not too many people will be confused: because the name of the candidates are on the ballot, their pictures, the logo and the PR ballot paper with ActionSA’s name will also be there next to the ward," said Bishop. 

When asked by the presiding judge how it could be proven after the fact that ActionSA was affected, given that some individuals may be deterred from voting, Bishop suggested that exit polls could be held to understand whether there was confusion and to what extent this had affected ActionSA.

WATCH | 'I'm gatvol' - Mashaba on IEC's omission of ActionSA's name from ballot

"If then the court finds that the party was affected, then it could give ActionSA an effective remedy which it can not give now, because that would affect other parties that have not joined this application, which is the rerunning of the election. The court will declare the relevant wards and the relevant municipality results to be set aside and require by-elections to be held. And that is the framework contemplated in the Municipal Act," he said. 

He argued that another political party Change which, similarly to ActionSA, also did not register an abbreviation - but its name was also less than eight letters - but had not joined this application. For the sake of fairness, the order given in this regard would also affect that party and, as such, this would not be possible given the tight timeframes. 

Bishop said:

The IEC has asked that the Electoral Court not make a pronouncement on the ActionSA’s urgent application, but wait until after the municipal elections, during which the party could then make a case as to how the omission of the name has affected it.

"If the court then finds that indeed the party has been affected then if can order a re-election in the ward the party participated in." 

He maintained, however, that the IEC had obstructed ActionSA and enforced its decision.

"The commission has to do its mandated duty of enforcing its own rules and regulations," said Bishop.

He said, while there was no obligation to register an abbreviated name, the lack thereof directly resulted in the acronym not appearing on the ballot. He also added that it was not the IEC's duty to inform political parties of this, as it was incumbent on them to know this in advance, or ask what the effect of leaving out an abbreviation would have on said party. 

Judgment was reserved, but Judge Boissie Mbha promised to return a verdict as soon as reasonably possible. Mbha added that in order to achieve this, the court may be compelled to issue a judgment without reasons, and only release the reasons at a later stage. 

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