The Electoral Commission of SA’s (IEC’s) application to the Constitutional Court to defer the municipal elections beyond October 27 will be heard on Friday with at least 12 political parties and NGOs applying to be admitted as friends of the court or intervening parties.
The IEC wants the court to declare that holding elections beyond the five-year expiry term of municipal councils is constitutional. The electoral body partly bases its application on the recommendations on the Dikgang Moseneke report which found that under Covid-19 conditions the municipal elections would not be free and fair if they were held in October.
The IEC has asked for the court to declare that failure to hold the municipal elections by November 1 2021 is unconstitutional and invalid and suspending the declaration of invalidity until the end of February 2022. Should the court rule against the IEC, the alternative relief would be a change to the constitution which would require a two-thirds majority in parliament.
Executive chairperson of the Institute of Election Management Services in Africa and former IEC commissioner Terry Tselane says though the postponement of the elections is valid considering the health risks associated with Covid-19, the electoral body should have requested that parliament amend Section 159 (which outlines the terms for municipal councils) to allow for the postponement to happen.
By heading directly to the court before parliament the IEC “is second guessing what parliament would have done”, he says.
“Their [IEC] business was to go to parliament and to follow the law and for parliament to be able to indicate as to whether they are able to agree or not agree ... The fact that they [IEC] are attempting to speak on behalf of political parties weakens their case.”
Though the ANC has filed in favour of the postponement, the party contends the elections should be set for April 2022 instead of February 2022 as requested by the IEC to allow political parties sufficient time to prepare for the polls. The IFP has requested that the date for the elections be revised to May 29 2022.
The EFF has also filed in favour of the postponement. Should the application be dismissed the party has asked the court to make an order directing minister of co-operative governance & traditional affairs Nkosazana Dlamini-Zuma, President Cyril Ramaphosa and the National Coronavirus Command Council to amend the lockdown regulations to allow for more than 10 people at political gatherings.
The DA, Western Cape Local Government MEC Anton Bredell and lobby groups, AfriForum, Freedom Under Law (FUL) and Council for the Advancement of the SA constitution (Casac) have all given reasons why the relief sought by the IEC would be unconstitutional.
The DA and Bredell argue that the apex court has no power to change the constitution and would be overriding the powers of parliament should it grant the relief sought by the IEC.
“Requiring the court to determine when elections will be held is a threat to this court’s own independence and legitimacy,” says DA MP Werner Horn in court papers.
Casac opposes on the basis that the postponement would be inconsistent with Section 159 of the constitution and the apex court does not have the power to change the constitution. FUL says the IEC has failed to adequately prove to the court why it would be impossible under the Covid-19 conditions to conduct a free and fair election, adding that the IEC has failed to take the necessary steps to ensure that it is equipped to fulfil its constitutional duty to conduct elections.
AfriForum opposes the postponement reasoning that it would have a domino effect on municipalities’ obligations under municipal legislation.
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