- Dikgang Moseneke says local government elections will be free and fair if postponed to February next year.
- He says holding the local government elections in October will be risky.
- Moseneke released his report on Tuesday as to whether elections would be free and fair under Covid-19.
Former deputy chief justice, Dikgang Moseneke, has recommended that local government elections be postponed.
"We conclude that it's not reasonably possible that the elections, to be held in October in 2021, will not be held free and fair manner as required by the provisions of the Constitution and related legislation. The scheduled elections are likely to be free and fair if they were to be held not later than end of the month of February 2022."
Moseneke chaired the Electoral Commission of South Africa's (IEC) investigation into whether free and fair local government elections could be held during the Covid-19 pandemic.
Moseneke released a report on Tuesday, based on the oral submissions initially presented by civil society groups, political organisations, the government and health experts, and said the findings of the report were not binding.
The retired deputy chief justice said, when an election has been called, the commission must prepare a timetable for the elections. He said all acts required to be performed in terms of the Municipal Electoral Act must be performed by no later than the time stated in the election timetable.
Moseneke said the commission was entitled to amend the timetable, if it considered it necessary for free and fair elections.
And, if the elections were to proceed, most acts which were required to happen, such as face-to-face registrations for voters, would not be possible for voters without access to electronic registration, the provisional and final certification of the voters' roll, and the finalisation of the nomination processes for registered parties and independent candidates.
The lockdown restrictions, he said, would stand in the way of parties and independent candidates accomplishing the acts prescribed by the timetable and electoral laws.
Moseneke added that the freedom to participate in elections is an element fundamental to the conduct of free and fair elections. This included the freedom to canvass, to advertise and to engage in the activities normal for a person seeking election.
He said what was important was that political parties and independent candidates needed to be able to participate in elections "fully and effectively". This meant political parties should be able to get their political message to their chosen electorate, without interruption.
If political parties and independent candidates were restricted in the ability to convey their message to voters, this limited their rights to contest elections, to campaign and to have freedom of expression, and it defeated the purpose of freeness and fairness of elections.
The retired deputy chief justice said larger, well-resourced political parties would be able to advertise widely and shift to digital platforms to engage with voters.
In addition, bigger political movements were advantaged in terms of broadcasting opportunities to share their political messaging, under the principle of proportionality applied by the Independent Communications Authority of South Africa.
Moseneke said the recommendation also looked at the concern expressed by the health department about the elections taking place in October this year. The department said the country would not be ready by then because of the slow vaccination rate.
The health department's director-general, Sandile Buthelezi, made submissions before the inquiry.
Explaining his presentations, Buthelezi said: "The country is currently experiencing a high number of Covid-19 cases, with high community transmission rates. The holding of elections could put members of the public at risk of contracting Covid-19 during the various activities.
"Physical voter registration, the voting process itself, where large numbers gather at polling stations and queue to complete their ballots, and large political gatherings, especially in venues that are difficult to manage or limit (such as sports stadiums)," he said.
The inquiry heard the lives of voters could only be protected during the pandemic if the country reached herd immunity, which required at least 40 million of the population to be vaccinated. The department said this target would only be possible by February 2022.
Buthelezi said only 16.6 million of the country's population would be vaccinated by October.
Meanwhile, the IEC applauded Moseneke and his team for finishing the report a day before the deadline.
IEC chair Glen Mashinini said: "This inquiry has been conducted under extreme timelines. Despite the pressures, Justice Moseneke and team, you were able to accept our request. In just 61 days, Justice Moseneke and team have managed to compile an in-depth report and investigations into whether elections will be free and fair under Covid-19 In October."
Mashinini said the commission would study the report as well as the findings and recommendations.
A total determination, based on the findings, would be made by the IEC soon.