Election to go ahead between 27 October and 1 November, orders ConCourt

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IEC barrier tape at a voting station.
IEC barrier tape at a voting station.
Sharon Seretlo, Gallo Images
  • The Constitutional Court has dismissed the Electoral Commission of South Africa (IEC) application to postpone the local government elections. 
  • The apex court ruled that the elections be scheduled between 27 October and 1 November. 
  • The IEC has also been ordered to announce a date for its voter registration weekend with in three days of Friday's judgment. 

The Constitutional Court on Friday dismissed an application by the Electoral Commission of South Africa (IEC) for the local government elections to be held next year. 

The apex court ruled that elections has to take place between 27 October and 1 November 2021. 

In its application to the court, the IEC argued that due to the Covid-19 pandemic, it could not organise constitutionally compliant elections for October.

The IEC case was supported by the ANC and other parties but the DA opposed the matter. 

The Constitutional Court granted both the Electoral Commission and DA's application for direct access on an urgent basis but dismissed the IEC's application. 

The court further declared as unconstitutional, "the proclamation issued by the Minister of Cooperative Governance and Traditional Affairs on 3 August 2021 in terms of section 24(2) of the Local Government: Municipal Structures Act 117 of 1998 (Structures Act), by which she proclaimed 27 October 2021 as the date for the local government elections (proclamation)".

READ | IEC heads to court to defer elections, despite Dlamini-Zuma proclaiming October 27 as poll date

As a result, the court ordered Minister Nkosazana Dlamini-Zuma to select a date to hold the elections between Wednesday, 27 October 2021 and Monday, 1 November 2021 and that the IEC should within three calendar days after the date of this order, determine whether it is practically possible to hold a voter registration weekend with a view to registering new voters and changing registered voters particulars on the national voters' roll in time for local government elections. 

The IEC had postponed the voter registration weekend after it adopted a report by former deputy chief justice Dikgang Moseneke that found that elections scheduled for 27 October this year would not be free and fair under the current conditions of the Covid-19 pandemic. 

The apex court ordered the commission to notify Dlamini-Zuma and the public once it has made a determination as to when it will have its voter registration weekend. 

Dlamini-Zuma was also ordered that the day after the voter registration weekend she ought to issue a proclamation in terms of section 24(2) of the Structures Act determining a date for the local government elections in the period from Wednesday, 27 October 2021 to Monday, 1 November 2021 (both dates inclusive).

The IEC could still approach Parliament and seek a postponement through amending the Constitution, a task that will require a two-thirds majority.  

READ | Dlamini-Zuma sets date for local govt elections to 'fulfil her office's constitutional obligations'

The constitutional dilemma of deciding whether municipal elections scheduled for October will be free and fair had been placed in the hands of the Constitutional Court following an urgent application last month by the IEC to have elections postponed. 

With the application made with just over two months to go until the proclaimed 27 October date for the local government elections, the IEC requested that the Constitutional Court grant on an urgent basis a declaratory order postponing the voting day to 28 February 2022.

The marathon virtual Constitutional Court proceedings saw the IEC argue that due to the pandemic it could not organise constitutionally compliant elections for October.

Represented by advocate Wim Trengove, the main relief sought by the commission was a declaration that the elections may be held outside of the 90-day period prescribed in section 159(2) of the Constitution and section 24(2) of the Municipal Structures Act, 1998.

Cogta Minister Dr. Nkosazana Dlamini-Zuma, Photo: GCIS

The commission also sought a declaratory order directing the holding of the upcoming local government elections by no later than the end of February 2022 and the authorising of Dlamini-Zuma to withdraw the notice calling the upcoming local government elections and setting 27 October 2021 as the date on which they will be held; and issue a new notice setting a date before 28 February 2022.

Political parties, including the ANC, EFF and DA, as well as civil society groupings such as the Institute for Race Relations, were admitted as intervening parties or amicus curiae in the application. 

The DA, which opposed the postponement, argued that delaying elections was not in the best interests of the electorate, especially in municipalities with underperforming or corrupt councillors. 

Represented by advocate Max du Plessis, the DA contended that the court has no power to postpone the elections as it would amount to a constitutional amendment, which only Parliament has the power to do. Further, it would set a dangerous precedent and undermine the supremacy of the Constitution. 

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