The Sinister Agenda Behind The DA’s Electoral Court Case – ActionSA

The DA’s Electoral Court case against ActionSA, and three other parties, is a wolf in sheep’s clothing.

On the face of it, a legislative review of the constitutionality of Item 17 of Schedule 1 of the Municipal Structures Act is a logical recourse to anyone wanting to challenge this provision. So far so good.

At this point some context is required. Item 17 allows for political parties whose submitted PR lists are insufficient (too short) to provide for the number of PR councillors they are entitled to once the votes are counted to supplement their lists:

“If a party list contains fewer candidates than the party is entitled to, the Electoral Commission must in writing immediately notify the party of the exact shortfall and request the party to deliver within two days of the notice a list supplemented by the name or names of one or more eligible candidates.”

Three matters are clear from the above provision which are fatal to the DA’s application: 1) it is a requirement that parties be invited to supplement, 2) such a process must be immediate, and 3) there are no conditions or limitations placed upon this process.

The DA’s court case attempts to read into this legislation a test of whether the party in question PR list was inadequate by underestimation of their support or by design and arguing that the latter should not be allowed. The problem, for the DA’s case, is that parliament never included such a test and the IEC could never implement it because assessing the motive or intent behind a submission is subjective.

The DA’s case is complicated further by the reality that it has, and continue to, rely on the very same provision. In 2016 the DA in KwaZulu-Natal wrote to the NFP after the latter had failed to register to contest the elections in time and offered to supplement their PR lists with candidates from the NFP. In 2021 the DA secured 4 and 3 seats respectively from Fetakgomo Tubatse and Tswelopele Local Municipalities where they had submitted only one name on the PR list and accepted the invitation by the IEC to supplement with further names after the election. And, in 2026, the DA has no less than 13 municipal PR lists of only one name where, in the event that they get a 2^nd councillor elected, they too will be invited to supplement their lists in terms of the very provisions they are challenging in the Electoral Court. This appears to be a case of the pot calling the kettle a pot.

The timing of this application warrants further attention. The Municipal Structures Act, and Item 17 that is the subject of this dispute, has been around since 1998 and so too has the DA. During this time, during which the DA has used the provision to supplement insufficient PR Lists, the DA has not moved to amend the legislation. Even now, as they form part of a majority governing GNU under which they hold the portfolio of Home Affairs (the custodian of electoral legislation) no amendments have been brought forward to the cabinet to change Item 17. Rather, the DA waited until the proverbial 11^th hour to bring this challenge, and now we discover the wolf concealed under the sheep’s clothing.

The DA’s legislative review becomes extraordinary at this point. Instead of seeking a transitionary arrangement to provide for a change in the law, if the court agrees that one may be warranted, it asks the court to stop these parties from supplementing their lists after the elections at all through a retrospective finding despite the entirely legal nature of parties submitting a candidate PR lists. The effect of this would be to limit a group of political parties that represent more than 25% of the South African electorate to only one PR councillor per municipality. And where the wolf really emerges is the understanding that under such circumstances, all those seats would be re-allocated to other parties from which the DA would be the second greatest beneficiary. This is where this court application takes on the appearance of an inner-city smash and grab.

The DA then proceeds to say that, should the court not grant the request to stop these parties from supplementing their lists at all, that these parties should be delayed from supplementing until after the inaugural council meetings that elect mayors and form governments. Effectively, the DA wants governments to be formed without representation that reflects the election results – the cornerstone of our proportional representation system underpinning our electoral democracy. It sounds rather like the DA wanting to return to minority government through a qualified franchise achieved by discounting votes from South Africans that they have given up on winning.

The DA’s case, and the surrounding narrative constructed, goes to great lengths to paint ActionSA’s single party lists as sinister and an afront to transparency when nothing could be further from the truth. ActionSA’s candidate selection policy dictates that our PR lists be constructed, within 48 hours of the results being declared, by ranking unelected ward candidates in order of performance onto our PR lists.

These are candidates who campaigned in wards and were weighed and measured by South Africans as the basis upon how we rank them on the PR list. An approach that places this trust in the South African people’s perspective on our candidates is more democratic than any smoke-filled room of a DA Federal Executive. Don’t believe me? Ask the people of the Garden Route District who, courtesy of the DA’s Federal Executive, will have a DA councillor elected as number 2 on that PR list who confessed and was found guilty to sextorting a schoolgirl. I would venture if the DA had used our system for their PR lists a sex pest would not be getting elected there.

As a final thought, the DA and many of its supporters think that it is the God-given duty and privilege of other parties like ActionSA to prop them up in coalitions to govern. However, consider that a party must be guided by its electorate, its constituency, when it makes coalition decisions. How do DA supporters anticipate ActionSA’s constituency will respond to the question of coalitions when the DA has gone out of its way to disenfranchise their constitutional right for their votes to count as much as the next South African. And this is where the wolf returns to being a sheep again.

ActionSA Identity: Rejects racial mobilization, focusing on “meritocracy.”