Slow uptake on overseas voter registration

IEC Photo: Flickr / Frank Trimbos

IEC must approach court to postpone local government elections

Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma has taken legal advice regarding the election date.

Slow uptake on overseas voter registration

IEC Photo: Flickr / Frank Trimbos

Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma has taken legal advice indicating that by law she must proclaim a date for local government elections, pending a court application by the Independent Electoral Commission (IEC) to postpone voting due to the Covid-19 pandemic.       

This comes after the IEC appointed retired Deputy Chief Justice Moseneke to consider whether the country could undertake free and fair elections on 27 October 2021. The inquiry received over 4 000 submissions from political parties, health experts and the general public, concluding its work and handing the report to the IEC on 20th July.                                                   

The report concluded that “… it is not reasonably possible to or likely that the local government elections scheduled for the month of October 2021 will be held in a free and fair manner…” 

“In balancing the need to secure livelihoods and our democratic obligations we are in agreement with the outcomes of the Moseneke Inquiry, which also concluded that should the IEC ‘accept and seek to implement the outcome of [the] Inquiry it is self-evident that it must approach, with deliberate speed, a court of competent jurisdiction to seek a just and equitable order to defer the local government elections to not later than the month of February 2022 and on such terms the court may grant’,” she added.

She said her office had sought legal opinion on whether it should gazette election date as planned this week and the option had concluded the following:

  • By resolving to adopt the report the IEC had, by implication, concluded that elections held in October 2021 will not be free and fair and has resolved to follow the recommendations of the Report.
  • There is an imperative to protect the rights of all persons to life, bodily and psychological integrity, as well as access to healthcare services.
  • The Minister is not empowered to postpone the elections to a date beyond 90 days after the expiry of the term of the municipal councils, as prescribed by section 159(2) of the Constitution.
  • The nature of the relief that the IEC will seek should determine whether the Minister must first proclaim an election date for purposes of an application to the Constitutional Court. Without any doubt the Minister is bound to fulfil her constitutional obligations to timeously proclaim the election date for the elections. There is currently no court order that would excuse the minister from fulfilling her obligations. If the Minister is forced to proclaim the election date before judgment by the Constitutional Court, she may explain that she has been advised to do so to fulfil her constitutional and statutory obligations. If the Court postpones the elections, the minister would not have acted in contempt of Court. Proclaiming the election date for 2021 would only be prohibited if there is a Court order postponing the elections to February 2022.
  • As to whether it is the Minister or the IEC that should approach the Constitutional Court, the ideal question ought to be whether the Constitutional Court may grant an order postponing the elections. However, since it is the IEC that has to form the view, and has formed the view, that the elections held within the time period permitted by the Constitution would not be free and fair, it is the IEC that ought to be the applicant. The IEC is obliged to cite the Minister as a respondent.
  • “It is therefore clear that we still must go ahead to call the elections and gazette the date. This will also enable the IEC to go ahead and file papers in the Constitutional Court to postpone an election that has been called,” Dlamini Zuma said.

“We are also aware the calling of the elections and gazetting will mean the voters roll will be sealed. The IEC will have to go to the Constitutional Court on an urgent basis and hopefully in their papers will take into account that (it) will be sealed after the calling and gazetting of the date by these actions. If the Constitutional Court allows for the postponement of course we will abide,” Dlamini Zuma said.

“In gazetting the date, we are no way seeking to contradict the inquiry’s conclusion or the IEC’s contemplated actions. We are just merely fulfilling our obligations,” Dlamini Zuma added.