The Constitutional Court says one of the reasons it dismissed the Electoral Commission of South Africa’s application to postpone local government elections to February 2022 was that it had to conduct polls within the constitutional time limits.
The electoral body approached the court after it received a report from the Moseneke inquiry which concluded that the elections would not be free and fair if held in October.
In papers filed with the court, IEC said it would be unable to organise elections constitutionally under the Covid-19 conditions.
The IEC also argued that it was to be impossible to meet demands that have been set by the Constitution for the election be held within 90 days of the end of term of council, and would be free and fair as well as protect the rights of voters.
The majority judgment, penned by Justice AJ Rogers, said the IEC failed to establish and did not even allege that elections held on or before November 1 would fail if the required “free and fair” standard was not met.
“The commission failed to establish that elections that are materially better in terms of freeness and fairness would be possible on or before February 28 2022.
“There is thus no principled factual basis to postpone the elections to a date in February 2022,” he said.
Roger also said the commission’s duty was to conduct those elections within the constitutional time limit and to make them as free and fair as reasonably possible.
He also said the principle that the law did not compel the impossible did not excuse the commission from complying with this constitutional duty.
Roger stated that although Parliament could amend the time limit imposed by the Constitution, the courts could not.
He also said very real prejudice could be suffered by voters if local government elections were delayed, bearing in mind the high level of municipal dysfunction as reflected in reports of the auditor-general and interventions which provincial governments have had to make.
“Regular elections are the most important means by which citizens can hold their municipal representatives to account by removing indolent, incompetent or corrupt councillors.”
The judgment noted that the commission relied almost entirely on expert evidence given to the Moseneke inquiry in the second half of June and early July 2021.
“We were not furnished with transcripts of the oral presentations made by the experts. We have only the summaries in the Moseneke Inquiry Report and the experts’ written submissions.”
In giving reasons on setting aside the October 27 election day proclamation, Rogers said Minister Nkosazana Dlamini Zuma knew that an inevitable consequence was that persons who had not by that time applied to register as voters would be unable to vote on election day.
“The minister knew that the commission had intended to conduct a voter registration weekend in July 2021 but had cancelled it.
“She proclaimed the election date, knowing that the consequence would be that no voter registration weekend could thereafter be held for purposes of the proclaimed elections,” he said.
Roger also said Dlamini Zuma appeared to have been under the impression that she was under legal compulsion to issue the proclamation when she did on August 3.
“She did not need authority from legislation or the courts to defer the timing of her proclamation, though she could not validly have proclaimed a voting date that was later than 1 November 2021.”
This was in reference to one of the arguments in favour for postponement to allow time for another voter registration weekend.
Political Bureau