EXPLAINER | How the IEC’s dispute resolution system works

South Africa’s electoral dispute resolution system gives political parties several avenues to challenge alleged irregularities, report administrative failures and seek action against breaches of election rules. But the processes are not interchangeable and parties must use the correct legal channel and meet the applicable deadlines if they want their complaints to be considered.

As South Africans vote in Wednesday’s local government elections, the Electoral Commission of South Africa (IEC) must ensure that complaints are dealt with in accordance with the law.

Its responsibilities include adjudicating administrative disputes, deciding formal objections that could affect election results and dealing with complaints involving the Electoral Code of Conduct within the limits of its statutory powers.

Political liaison committees (PLCs) provide a separate forum for the commission and political parties to discuss electoral matters, raise concerns and seek solutions. However, they do not replace formal objections or the legal processes available to parties seeking to challenge an election result.

The distinction is important because a complaint raised at a PLC meeting does not automatically constitute a formal objection. Similarly, an allegation that a party or candidate has breached the Electoral Code of Conduct does not necessarily amount to an objection to the voting or counting process.

The IEC’s PLC system operates at national, provincial and municipal levels. Under the regulations governing the committees, parties represented in the National Assembly, provincial legislatures and municipal councils may appoint up to two representatives to the relevant committees. The regulations also provide for representation by parties represented at higher levels of government but not at the relevant lower level, as well as qualifying independent representatives.

The IEC appoints a representative to convene and chair each committee. The committees are intended to facilitate consultation and co-operation between the commission and political parties on electoral matters, including the administration and conduct of elections.

Though PLCs can help resolve disagreements through engagement, they are not courts and do not have the same powers as the IEC when it adjudicates a formal dispute or the Electoral Court when it considers an appeal or other electoral matter.

Section 5(1)(o) of the Electoral Commission Act empowers the IEC to adjudicate disputes arising from the organisation, administration or conduct of elections that are administrative in nature. This provides a mechanism for addressing disputes about the administration of electoral processes.

The scope of that power is important. In a 2021 judgment involving the IEC and the DA, the Supreme Court of Appeal considered the limits of the commission’s authority under section 5(1)(o). The judgment distinguished administrative disputes concerning the mechanics of an election from disputes requiring powers or remedies that the legislation does not confer on the commission.

A separate process applies to objections material to the results of municipal elections. Section 65 of the Local Government: Municipal Electoral Act 27 of 2000 allows an interested party to object to matters concerning voting or counting procedures, as well as specified unlawful conduct involving interference with election activities or the intimidation or obstruction of voters.

An objection must be lodged in writing with the commission and must identify the election concerned, the legal provision under which it is brought, the details of the alleged irregularity, the reasons for the objection and the relief sought. The objector must also provide the prescribed supporting information and documentation.

Strict deadline

The deadline is strict. Under section 65(2), an objection must be lodged by 5pm on the second day after voting day. For the local government elections held on Wednesday, that means November 6. The commission may condone a late objection if the statutory requirements are met.

The IEC must consider the objection and notify the objector and other interested parties of its decision. A party aggrieved by that decision may appeal to the Electoral Court within seven days.

The court can reject the appeal, amend the commission’s decision, set aside the election or make another appropriate order. Where the commission refers an objection to the court because the alleged irregularities or unlawful conduct may justify setting aside the election, the court has the powers provided for in section 65 to determine the matter.

Importantly, the declaration of an election result is not automatically suspended while an appeal is pending.

Complaints involving the Electoral Code of Conduct follow a different legal route. The code, contained in schedule 1 of the Municipal Electoral Act, establishes standards for parties and candidates intended to promote free and fair elections, tolerance of democratic political activity, open public debate and lawful campaigning.

The legislation provides mechanisms for enforcing the code. Section 77 allows the chief electoral officer, acting on behalf of the commission, to institute civil proceedings to enforce provisions of the act or the code. Section 78 gives the Electoral Court jurisdiction over electoral disputes and complaints about infringements of the code, subject to the applicable statutory provisions.

The distinction between a code complaint and an objection to an election result matters. Allegations of intimidation, unlawful campaigning or other prohibited conduct must be assessed under the relevant provisions. They do not automatically invalidate votes or establish that an election result should be changed. The appropriate remedy depends on the nature of the alleged breach and the powers available under the law.

A single incident may raise more than one legal issue. An alleged failure by the commission to administer an electoral process properly may give rise to an administrative dispute. Conduct by a party or candidate may raise a separate question under the Electoral Code of Conduct. An irregularity involving voting or counting that is material to the election result may warrant an objection under section 65.

However, parties cannot assume that raising a concern through one mechanism automatically satisfies the requirements of another. They must identify the legal basis for their complaint, submit the necessary evidence and follow the procedure applicable to the remedy they seek.

The Electoral Court’s role is particularly important if a dispute cannot be resolved through the commission’s administrative processes or if a party challenges a decision through a statutory appeal. The court’s powers, however, depend on the legal basis of the matter before it, and parties must comply with the applicable procedural requirements.

For parties contesting the local government elections, the practical implication is that complaints must be documented and pursued through the correct channels in the prescribed timeframes. Raising a concern through a PLC may prompt engagement with the IEC, but it does not necessarily preserve a party’s right to lodge a formal objection or appeal.

The effectiveness of the system therefore depends on the commission’s ability to deal with complaints impartially and the parties’ understanding of the legal procedures available to them. The aim is to ensure that legitimate grievances receive proper consideration without allowing the dispute resolution process to become a substitute for the requirements of electoral law.

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