Why the ConCourt dismissed the IEC's application to postpone municipal elections

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The majority judgment by the Constitutional Court insists the courts do not have the power to relieve the Electoral Commission of SA of its duty to ensure free and fair elections. (Photo: Darren Stewart/Gallo Images)
The majority judgment by the Constitutional Court insists the courts do not have the power to relieve the Electoral Commission of SA of its duty to ensure free and fair elections. (Photo: Darren Stewart/Gallo Images)
  • The Constitutional Court gave its reasons for dismissing the IEC's application to postpone the upcoming elections.
  • The IEC approached the apex court, citing fears of increasing Covid-19 infections.
  • The municipal elections will now be held on 1 November.

The majority judgment by the Constitutional Court insists the courts do not have the power to relieve the Electoral Commission of SA (IEC) of its duty to ensure free and fair elections.

In a summary of the judgment, released on Saturday night, the ConCourt gave its reasons for dismissing an application by the IEC to postpone the forthcoming municipal elections to February 2022.

While judgment was handed on 3 September, it was not unanimous.

The ANC, the EFF and IFP supported the IEC's application.

The majority judgment held that the IEC's constitutional duty was to conduct the elections within the 90-day period, "making them as free and fair as circumstances reasonably permitted, and that our courts do not, save in rare and exceptional circumstances, have the power to relieve the commission of this duty".

READ | IEC defends reopening candidate nomination process

The majority judgment was equally not persuaded that, if elections took place on 1 November without a voter registration weekend, such elections would necessarily fail the standard of freeness and fairness.

The ConCourt's order stipulates the timetable published by the IEC on 4 August shall remain applicable.

It further states that, as soon as possible after the issuing of the proclamation, the IEC must, in terms of section 11(2) of the Municipal Electoral Act, publish such amendments to the current timetable as may be reasonably necessary.

The majority judgment held the view that, if there were good reasons to doubt that pending elections would be free and fair, there was a mechanism to avoid going ahead with it, but the mechanism was not judicial. Parliament, not the courts, should make the choice.

In respect of the impossibility maxim pleaded by the commission, the majority judgment held it was not the IEC's case that it was practically impossible to conduct elections on 27 October, rather that, should the elections happen, it would not be free and fair.

The majority judgment further held that, when Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma  proclaimed the election date of 27 October, she knew the consequence would be that no voter registration weekend could take place thereafter.

The minority judgment was critical of the IEC's failure to hold a voter registration weekend before Dlamini-Zuma proclaimed the election date.

The judgment was also critical of the IEC's failure to publicly inform eligible and registered voters that it would not hold a voter registration weekend before the upcoming elections. The IEC has, over the last 27 years, held at least two voter registration weekends for all the national elections.

READ HERE | Elections 2021: DA says it is not trying to 'elbow' ANC out of elections

The minority judgment insisted the IEC should at least have warned voters that it would not hold a voter registration weekend and should have afforded them a reasonable opportunity, after such an announcement, to visit their municipal electoral offices to register or update their registration details.

The IEC's failure to hold a voter register weekend or to publicly warn the voters made it likely that, if held in October, the election would not be free and fair.

The minority judgment held that a court does have the power to order that an election be held after the expiry of the 90-day period, in accordance with section 159 of the Constitution.

On Monday,  the Constitutional Court will deliver a judgment on whether the IEC's reopening of candidate nominations for the municipal elections was unlawful or invalid. 

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