WHEN COURT RULINGS BECOME INCONVENIENT
Roshan Jainath|Published
The Constitutional Court ruled on Thursday (October 15) that 181 African National Congress candidates must be reinstated on the ballot for the November 4 local government elections. This overturned an earlier Electoral Court decision that had upheld the Electoral Commission of South Africa’s exclusion of those candidates from six municipalities.
The dispute began when the ANC failed to click a “Submit as Final” button on the IEC’s online candidate nomination system before the August 28 deadline. The party had uploaded its candidate information, submitted the required documents and paid the deposits. The final step on the commission’s digital platform was not completed in time.
The ANC argued that the button was a feature of the IEC’s software and not a requirement contained in electoral law. The IEC maintained that the button was necessary to confirm that a party’s candidate lists were final.
The Electoral Court ruled in favour of the IEC. The ANC then appealed to the Constitutional Court. The Democratic Alliance applied to intervene. It argued that allowing the ANC to submit candidates after the deadline would undermine the fairness of the elections and prejudice parties that had complied with the rules. The DA said deadlines must apply equally to every political party wishing to contest an election.
The Constitutional Court, by majority, upheld the ANC’s appeal on October 15. The court set aside the IEC’s decision and directed the commission to include the affected candidate nominations on the ballot papers. Justice Steven Mathopo delivered the ruling.
The IEC said it respected the decision and would implement the order. ANC Secretary-General Fikile Mbalula broke down in tears after the judgment. He said the court battle had taken a toll on him.
The DA responded that it respected the rule of law and the judgment of the Constitutional Court. DA Federal Council chairperson Ashor Sarupen said the judgment raised serious concerns about the precedent it sets for complying with the IEC’s deadlines and requirements. He said the ANC had now succeeded in undoing its own failure to submit candidate lists in six municipalities but that this would not change its electoral fortunes.
The affected candidates will be added to the ballots before polling day on November 4. The DA’s decision to oppose the appeal was legally coherent. Electoral deadlines serve fairness and orderly administration. The party argued that rules must apply equally. If the ANC can correct a late failure, why should compliant parties be held to a different standard? That is the DA’s stated position.
It rests on a particular understanding of electoral integrity that deadlines and rules matter. There is another way to read what happened. The DA did not simply defend a procedural rule. It intervened in a specific case at a specific political moment.
The excluded candidates were overwhelmingly from communities where the ANC draws support. The affected municipalities are not places where the DA expects gains. They are places where exclusion would have narrowed the field and altered coalition arithmetic. The DA has every right to litigate.
It is worth asking what kind of victory it was pursuing. A victory for strict deadline compliance would have meant over a hundred candidates could not stand and voters would have fewer choices. The DA framed this as fairness. It could equally be described as using a technicality to shrink the contest.
That is where Helen Zille comes in. The DA’s federal council chairperson has become the face of a particular approach to politics. Her response to the ruling invites a closer look at who she really is. When asked whether Israel’s actions in Gaza amounted to genocide, Zille said genocide was a big word and that she did not know. She questioned the ICJ’s jurisdiction, suggesting South Africa was acting as a proxy for Iran.
The ICJ had already found a plausible case. Zille treated it as an open question. Genocide is too big for her to utter but small enough to dismiss. Under Zille’s premiership, the Western Cape tried to sell the Tafelberg Remedial School site in Sea Point to a private Jewish day school for R135 million. The Constitutional Court ruled the sale unlawful.
It found the province had failed to build adequate social housing and that the sale would have deepened apartheid spatial planning. Zille’s administration fought the case to the highest court. It lost.
The DA distances itself from AfriForum, but its policies mirror AfriForum’s goals. AfriForum has campaigned in the United States against land reform, framing expropriation without compensation as an assault on property rights. Zille has defended this. She argues no government should have sweeping powers to expropriate without compensation. That is a political and constitutional position.
The Constitution permits expropriation in the public interest. Her opposition is not about policy. It is about the constitutional settlement itself.
On October 15, the court ruled in the ANC’s favour and ordered the IEC to include the 181 candidates. Zille’s response was immediate. She said the judgment made no sense. She claimed the rules do not apply to the ANC and warned of chaos because ballot papers had already been printed.
She did not disagree with the reasoning. She said the ruling made no sense. That is not legal critique. It is constitutional sulking. Zille’s defenders say she can criticise the court. Of course she can. Criticism of judicial decisions is normal in a democracy.
There is a pattern. When the court ruled that the DA could access the ANC’s cadre deployment records, Zille called it a victory for South Africa. When the court ruled against the DA on candidate lists in 2021, Zille alleged without evidence that judges leaked information to the ANC.
The court is legitimate when it rules her way. It is suspect when it does not.
The ANC, by contrast, has accepted the rule of law even when painful. It has lost constitutional rulings on cadre deployment and Tafelberg. It has complied. It has not accused the judiciary of bias. It has not said the rules do not apply to it. It has defended the Constitution it gifted this country.
The ANC has failures. It has problems with accountability. It does not treat the Constitution as a fair weather instrument. Zille does. She is a constitutional delinquent. She picks and chooses when the Constitution binds her. She treats the rule of law as a weapon against opponents and a burden to shed when it constrains her.
The gogo swims in potholes and acts like a saviour. She is the thorn beneath the rose. A colonial Lady Macbeth. Those may be strong words but strong words are warranted when the stakes are this high.
The question is not whether Zille is a democrat. The question is what kind of democrat is she?
The answer, increasingly, is the kind who believes the Constitution belongs to those who agree with her. The answer for the rest of us is not to stay home. It is to turn out and vote.
Roshan Jainath is a community activist and writer.
** The views expressed do not necessarily reflect the views of IOL or post.co.za.