The Electoral Commission of SA (IEC) says approaching parliament to amend the constitution to allow it to conduct the municipal polls beyond October 27 would set an undesirable precedent.
The electoral body’s application to the constitutional court to delay the local government elections beyond the five-year expiry term of municipal councils was heard on Friday.
The IEC wants the court to declare the requirement to hold the municipal polls by November 1 invalid given the impossibility of conducting free and fair elections under Covid-19 conditions.
The DA ,Western Cape local government MEC Anton Bredell and lobby groups Afriforum, Freedom Under Law and Council for the Advancement of the SA Constitution have accused the IEC of asking the top court to override the powers of parliament by amending Section 159 of the constitution which sets out the terms for municipal councils, which the IEC has denied.
Should the court rule against the IEC, the alternative relief would be a change of the constitution which would require a two-thirds majority in parliament.
Justice Leona Theron questioned advocate Wim Trengove on why the IEC has not approached parliament directly rather than the court.
“Why should this court be asked to do something parliament is expressly empowered to do ,” Theron asked.
The commission said approaching parliament will not be feasible as it is unlikely the required two-thirds majority would be achieved.
“We are asking the court to amend the constitution,” Trengove said. He said the IEC needs to simply ask what action the constitution directs when it demands that the elections be held by November 1.
Representing Bredell, Ismail Jamie accused the IEC of sitting on its hands regarding preparation for the elections, resulting in a crisis where it is now not ready to conduct the polls in line with its constitutional obligations.
Steven Budlender, for the IEC, said: “The practical reality is that we are here now, there is no constitutional amendment and it is too late … the blame game does not matter.”
The IEC based its arguments on former chief justice Dikgang Moseneke’s report which recommended that elections be held no later than February 2022 when a significant amount of the country’s population would have received Covid-19 vaccinations, thereby reducing the associated health risks.
Trengrove said in the current circumstances, holding elections in October or November, within the 90-day deadline to elect new leaders, would be impossible because the polls would not be free, fair and safe.
The ANC and the IFP have asked the court to delay the election to April 2022 and May 2022, respectively, to allow political parties to have sufficient time to prepare their candidates and to present their manifestos to the electorate.
Should the IEC’s application fail, the EFF has asked that the court to make an order directing minister of co-operative governance and traditional affairs Nkosazana Dlamini-Zuma, president Cyril Rampahosa and the National Coronavirus Command Council to amend the lockdown regulations to allow for more than 100 people at political gatherings.
The Institute of Race Relations argued against the postponement saying that the IEC should stagger the elections over more than one day, similar to how by-elections are conducted. In this way, the IEC will be able to fulfil its constitutional obligations while reducing the likelihood of the spread of Covid-19, it said.
Judgment was reserved.
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