Real Risk That 2024 Elections Will Not Be Free And Fair

The Referendum Party (RP) has retained the services of Advocate Johan de Waal SC as an administrative dispute with the Electoral Commission (IEC) escalates into something potentially more sinister.

The issue revolves around the new requirement for ‘unrepresented parties’ to deliver a large number of ‘signatures’ to the IEC in order to be able to contest the 2024 elections.

By the 17h00, 8 March 2024 deadline, the Referendum Party had amassed 18 660 national signatures (target was 13 201) and 11 937 provincial signatures (target was 7 176).

The intent of introducing supporter quotas for unrepresented parties through the Electoral Amendment Act in April 2023 is crystal clear. It was explicitly stated in both the bill’s final memorandum presented to parliament, and in the evidence presented by the Minister of Home Affairs, Aaron Motsoaledi, to the Constitutional Court in defence of the quotas.

Motsoaledi told the court that the purpose of the signature requirement was “to ensure prospective independent candidates or prospective political parties seeking to contest the national elections in fact have some plausible chance of gaining sufficient public support to be elected”.‍

The IEC have arbitrarily transformed this into a requirement that parties can only demonstrate this support by means of ‘wet ink’ signatures, something that is not prescribed by the legislation, nor in the IEC’s own regulations, and which is at odds with the intent and purpose of the legislation.

This would potentially preclude the RP from contesting the elections despite significantly exceeding the prescribed threshold for support.

On 1 March 2024,  through its attorneys DP&A Inc, the RP challenged the IEC over this interpretation. In support of the challenge, they presented the IEC with a copy of written guidelines that the IEC itself provided to the RP, saying it did not require ‘wet ink’ signatures. The IEC had also not included the signature requirement in the draft regulations which it published for comment. 

“At this stage the RP had expected common sense to prevail, but to the contrary, on 4 March the IEC responded through their lawyers and their position was shocking and completely unjustifiable,” says Phil Craig, RP Leader.

The IEC stated that the RP was not entitled to rely on its (the IEC’s) own written communications to it, that the IEC’s inadvertent error in not publishing the signature requirement in the draft regulations was of no consequence, and that the real issue at play was that the RP lacked sufficient resources.

Events took a potentially even more sinister turn in the days that followed.

By Wednesday 6 March, the RP had collected more than 14 000 signatures, all of which had then been verified by the IEC to confirm that they were genuine registered voters living in the appropriate geographical region.

On the advice of legal counsel, and as an insurance policy, with only 51 hours remaining before the IEC deadline for submission, the RP then set about converting as many as possible of the 14 000 digital signatures into written signatures.

Remarkably, and against all the odds, within 27 hours 11 000 signatures had been converted when the webpage set up for the purpose was suddenly blocked on Facebook and Instagram and remained blocked (without explanation) until after the IEC deadline for submissions had expired.

The outcome for the RP is now a complicated one. 

The RP has met the prescribed threshold for support and has fully complied with the intent of the legislation.

If the IEC maintains the extraordinarily narrow and entirely arbitrary definition of ‘signature’ to mean ‘wet ink’ signatures, then the RP will be disqualified from contesting the elections and will have to challenge the IEC in court (which it most certainly will do).

If the IEC accepts physically written signatures, but refuses to accept consent based ‘tick box’ signatures, then the RP will be able to contest the Western Cape provincial election, but not the regional or national election. In this case, the denial of service on social media will undoubtedly have resulted in the RP’s exclusion from the national parliament. A court challenge would then be necessary to contest the national and regional ballots.

If the IEC accepts all of the RP’s signatures including ‘tick box’ signatures (each of which is fully verifiable), then the RP will be able to contest all three ballots - provincial, regional, and national.

The RP’s legal team has again written to the IEC (copy attached) pointing out that failing to allow the party to contest all three ballots after it had met the signature requirements as intended by the law, would be an unjustifiable infringements of the RP’s constitutional rights.

Craig says, “We have clearly demonstrated that we have sufficient support to contest these elections. The IEC shenanigans have the effect of rallying independence supporters around the flag. We have emerged from this week stronger and more resolute than ever. We will be contesting these elections and ultimately we will have our referendum on Cape Independence.”