Hassim said the commission’s decision not to remedy the issue was unlawful, did not consider the merits of the request, and failed to explain “why an identifier that is presented as optional when you apply to register as a party, is later held to be mandatory”.
“The commission has failed to explain why it chooses not to alert parties at the point of registration of this consequence, yet it has temerity to say, 'ActionSA you made your choice, you must live with it',” said Hassim.
Advocate Michael Bishop, acting for the commission, however, accused the party of seeking preferential treatment as it was relatively new. He argued that the move not to amend the ballot was in line with the law.
“What is really at the heart of this case is that the applicant seeks preferential treatment ... The applicant says it should be treated differently because it is a new party and voters may not be aware of its logo because it’s a new party. But the commission cannot have different rules for old and new parties; it must have the same rules for all parties otherwise the elections will not be free and fair.
“Here, the same rule has been applied to all parties equally. The rule is, we will put your registered abbreviation name on the ballot and if you choose not to have it, that is your choice and we will respect it,” he said.
Bishop further argued there was nothing stopping the party from registering an abbreviation the same as its name if compliant with the eight-letter rule. He cited another relative newcomer, Good, which registered the same name and abbreviation.
“There is nothing unusual about what’s happened here, this is what the commission has been doing since 1994, it uses abbreviation on ballot papers, it relies on parties' registered identifiers through the formal process in the legislation. The issue has not come up before because parties knew if you don’t register an abbreviation, the commission can’t use an abbreviation.”
He stressed the importance of using registered names and abbreviations which would have gone through legislative processes on the part of the commission, saying if unregistered names/abbreviations were used, there would be great confusion.
“If the commission were to use any name other than a registered name and abbreviation, it would create great uncertainly and unfairness. That is exactly what the applicant is asking the commission to do; it's asking the commission to use an unregistered abbreviation that has not gone through a legislative process to be put on a ballot, because it failed to register an abbreviation when it registered the party ...”
Judge Jeremiah Shongwe asked if the rules had been noted down and if political parties had been made aware of them.
“Was the importance of the abbreviation in the design of the ballot paper explained and that it would be applicable in the design and not the name because we know the name to be most important ... were the parties informed about this?” he asked.
Bishop would not provide a straightforward answer other than to say, “any reasonable political party would know that was the case ...”
When the same questioned was asked for the second time, Bishop said: “I can’t point to a specific document which set that out in black and white and was sent to all political parties.”
Judgment was reserved.
Judge Henry Mbha noted that it was not an easy case but the court would deliberate the matter and hand down judgment soon.