INTRODUCTION AND CONTEXT
Until the dawn of democracy in 1994 which marked the end of apartheid, for many years South Africa has been a pariah state, an exclusive laager where the minority had ruled over the majority owing to disenfranchisement laws. In addition to this and other repressive laws, the white minority regime passed the land dispossession act, relegated blacks to secondary citizenship and to the margins of the economy, and without a voice in their ancestral land.
The 1902 Peace Treaty of Vereeniging which ended the war between the British and the Afrikaaner became a turning point for the country. At both sides of the war were blacks, involved in a bloody conflict that was not theirs. Ironically, despite their involuntary involvement in the conflict, at the end of the war they were not at the negotiating table to contribute to a new path for a new a South Africa that involved all its citizens, carved through the treaty and the South Africa Act 1909 which was enacted on September 20, 1909 taking effect on May 31, 1910 and served as the country’s foundational constitution until South Africa became a Republic in 1961. This was a false republic which excluded blacks from the ballot, common citizenship and other rights.
This became a period of betrayal, a time of betrayal when in 1912 the African National Congress (ANC) was born in response to the political developments post the Peace Treaty of Vereeniging and Union of South Africa. In response to the battle against colonialism, disenfranchisement, the draconian laws and the concomitant resistance, the death penalty was used as a weapon against those opposed against the mortifications of landlessness, the Group Areas Act and secondary citizenship.
When South Africa attained democracy in 1994 progressive laws were passed to reverse the brutal legacy of apartheid. These laws, inter alia, included the watershed case of the State v Makwanyane (CCT3/94) [1995] ZACC 3 which abolished the death penalty, declaring it a crime of indignity. The damage was debilitating, where many walked 52 steps of the notorious Kgosi Mampuru prison for a final appointment with the noose man. This case came after the establishment of the Constitutional Court in 1994 by the interim Constitution of 1993, laying a foundation for a South Africa based on human rights.
These rights were codified in the final Constitution in 1996, which in this context, included section 19 which became the subject of debate in the matter between the ANC and the IEC (CCT 2026) [2026] ZACC. In addressing the land dispossession law of 1913, section 25 (1) was enacted and so was section 19 at whose primacy is the universal suffrage and freedom of association and where the Constitution established the IEC whose mandate is advanced by the Electoral Act 73 of 1998 to address disenfranchisement, ensure universal suffrage and to regulate elections.
THE ANC V IEC
In (CCT 2026) [2026] supra, the ANC approached the apex court to enforce the rights enshrined in section 19 of the Constitution. The dispute arose after the ANC uploaded candidates but failed to hit the final “Submit as Final” button on the IEC portal before the August 28 deadline. Dude to this failure, the IEC disqualified 181 ANC councillor candidates for the Local Government Elections set for the 4th November 2026, to give effect to regular election as set out in the Constitution.
The ANC argued and submitted to the highest court that the disqualification of its candidates on a technicality offends against the right to vote protected by the Constitution. The right to vote, within the broader expression of “The People Shall Govern” needs wider interpretation, read together with the injunction that “No government can justly claim authority unless it is based on the will of all the people.” The Freedom Charter was drafted and adopted as a direct challenge to the apartheid regime and the National Party’s minority rule. It demanded universal suffrage, human rights, and a democratic state that represents every citizen. It is this Constitution which advances the demands of the people contained in the Freedom Charter of 1955, the Defiance Campaign of 1952, the Women’s March of 1956 other struggles to end apartheid.
“The People Shall Govern” bestows a patriotic duty upon the citizens to participate in the affairs of the state enjoined by a social contract to defend democracy and to advance freedom, development and prosperity for the benefit of the people through suffrage and a common voter’s roll. The vote legitimizes the state, instils a sense of pride on a citizenry disenfranchised for many years, but equally, a populace within which resides national pride, common citizenship, equality, freedom of choice and association.
The apex court upheld the ANC’s appeal against an earlier Electoral Court ruling. The majority directed the IEC to include the ANC’s 181 affected ward and proportional-representation councillor candidates on the ballot papers across six municipalities for the November 4 local government elections.
The implication of this judgment are far-reaching. As the court of last resort, the custodian of the Constitution and a shield which protects and promotes the rights of all citizens and the institutions which support democracy, which in this instance, is the IEC which guarantees the expression of the will of the people and free elections. This judgement is a victory for the people, democracy, the Constitution, our evolving jurisprudence, universal suffrage and a lodestar for institutions that support democracy, and their resilience, which in this instance is the IEC.
There is a dangerous narrative and falsehoods of the ANC on a collision course with the IEC, a narrow interpretation of an assault on the body of the IEC. The narrative is stretched beyond elasticity, which had accused the IEC for pandering to the whims of the ANC if it condones the late registration of its members.
The IEC, as provided by section 181(2) is independent, and subject ONLY to the supreme law, and should be impartial and exercise its powers and perform its functions without fear, favour or prejudice. In the subject, the IEC exercised its powers impartially, without fear of the ruling party or any external influence to ensure free and fair elections. In its bold act exercised in accordance with its mandate and the Constitution it erased doubt and the blot of bias towards the ANC as perceived by a section of the populace, insulating itself from criticism, and protecting its mandate of free and fair elections as contemplated by section 90(1) (b) read in conjunction with section 181 (1), (3) and (4).
The IEC carefully navigated a new complex terrain, disentangling itself from the intricate web of perceptions and narratives of bias towards the ANC at the maelstrom of distortions, disinformation and misinformation. This terrain was pristine for the IEC, having impeccably discharged its mandate since 1994, without an iota of bias.
The implications of the Constitutional Court judgment delivered on its behalf by Justice Rammaka Mathopo is demonstrative of a complementary constitutional paradigm where the IEC, its decision to disqualify the ANC mastered the art of navigating an iceberg that would rupture the trust between the IEC and the electorate in a multiparty system of opposition politics that elevated ideological masculinity above citizens’ interests and the prosperity of the democratic state, and its value of representation and participatory democracy through voting.
This defining moment, reinforced the independence of the Constitutional Court, reaffirmed its stature as the custodian of the Constitution and whose responsibility within the purview of the ius dicere non facere legal principle. This maxim enforces a strict boundary between the legislature (which has the authority to enact and create laws) and the judiciary (which has the authority to interpret them, and to protect them).
The decision of the IEC is construed in the discourse and the politically conscious populace as a new form of disenfranchisement rather than cushioning itself from perceptions of bias and the fulfilment of a mandate upon which it pivots and the mandate entrusted upon it by the supreme law.
Political pundits and populists sink the knife deeper, accusing the highest Court as an appendage of the ANC, and its justices beholden to the governing party. This is an act of desperation, an attempt to undermine the Constitution, a subtle attempt at the life of the Constitution, its supremacy as the highest law of the land and the rule of law to wage a new form of revolution and confusion and demagoguery. They shamelessly stand on a populist dais, driving a wedge to undermine the rule of law and the independence of the judiciary.
Ironically, in an act they pretend never happened, forget that they never applauded the IEC in the exercise of its powers, impartiality and independence by disqualifying the 181 ANC candidates. Now that the pendulum has rested unfavourably, with the scale of justice resting in the state of equilibrium, everything must change, according to them. Like a phantom, the narrative is eerily restless, eviscerating the Constitution, undermining the judiciary.
In the aftermath of the judgment, in its wisdom, the ANC reaffirmed its respect and independence for the IEC as an institution supporting democracy. The litigation was about the Constitutional right to vote, not the IEC. The judgment is a reaffirmation of the constitutional imperative of the right to vote. Anything outside the Constitution which diluted that right would have enervated the legitimacy of the state, stifled a voice that has a legitimate place in the constitutional democracy and the injunction of “The People Shall Govern.” The disqualification of the ANC candidates, their exclusion from the ballot would have put in question the legitimacy of the affected municipalities for the voices and will of the people would have been silenced by a button, and not the law.
In the court proceedings, and correctly so, Justice Mathopo sagaciously probed “if a button can dilute citizens’ right to vote.” This erudite question reverberated across the Constitution Hills, like a liberation song that freed the oppressed from the chains of oppression, echoing the lyrics of freedom that “Everyone has the right to make political choices, which includes the right to vote in elections for any legislative body and to stand for public office.”
This judgment goes beyond the 181 disqualified election candidates and their disenfranchised constituencies whose status was restored by the apex court. It is about the supremacy of the law and universal suffrage which gives expression to the will of the people.
GEORGE MAGOMA
The author is a political commentator
