IEC open to supervisory order ahead of local elections, ConCourt hears

Lawyer for Electoral Commission argues if court were to grant an election date six months from now, for example, IEC could report monthly on its progress

20 August 2021 - 14:35
By naledi shange AND Naledi Shange
The ConCourt on Friday heard arguments from legal representatives for the IEC on why the local government elections should be postponed to next year. File photo.
Image: Sandile Ndlovu The ConCourt on Friday heard arguments from legal representatives for the IEC on why the local government elections should be postponed to next year. File photo.

Tough questions were posed to the Electoral Commission's (IEC) legal representatives in the Constitutional Court on Friday as it sought to have the court postpone the local government elections, scheduled for October 27, to next year.

While Wim Trengove SC, for the IEC, had submitted that it was “impossible” to hold free and fair elections on the proposed date, mostly because of the Covid-19 pandemic, he said that they relied on predictions of medical experts. The situation may be different next year, he said.

Justice Steven Majiedt was one of the justices who was not completely sold on the IEC’s argument.

While Trengove had submitted that experts had predicted that come February 2022, about 70% of the country’s population may be vaccinated, meaning it would be safer for campaigning and elections to be held, Majiedt pointed out that vaccine hesitancy was a real issue at the moment.

Majiedt said right now, the supply of vaccines outstripped demand as people showed reluctance to get the jab.

Trengove replied that things “may not work out as planned” in terms of the vaccinations but the country would be further than where it is right now, adding that while about 12% of the population was now vaccinated, only 6% was fully vaccinated.

His argument was that there were three core mandates of the IEC — that it ensure that the elections happen after every five years, that the elections are free and fair and that they are safe.

With Covid-19 regulations having a tight grip on mass gatherings, campaigning for elections would prove difficult, particularly for smaller parties who did not have the technological means for campaigning, Trengove submitted.

Voter registration was also difficult at this stage. Trengove argued that this left the window open for parties to come forward later where they would challenge the outcome of the elections.

“Those three constitutional rights carry the same weight. Can we meet the three demands? The simple answer is no,” Trengove said.

Steven Budlender SC, also for the IEC, said it was not true that the IEC had been “sitting on its hands” and no longer planning for the elections, submitting that it was doing what it could behind the scenes even while awaiting the outcomes of the court proceedings.

He answered questions earlier posed by justice Leona Theron on why the IEC did not continue with the voter registration weekends.

Budlender said on two occasions, the registration weekend was postponed because some parts of the country were experiencing Covid-19 infection peaks.

Earlier, Theron had questioned the IEC on why it had not gone to parliament with its predicament, instead of coming to the court.

She put forward that parliament has the powers to do what the commission is seeking from the court. She further asked whether what the IEC was doing was not indirectly asking the ConCourt to amend the constitution.

Trengove said this was not the case, highlighting that amending the constitution “would be a terrible suggestion” and set a bad precedent.

On a possible remedy, Budlender said the IEC was open to accepting a supervisory order where if, for example, the court were to grant an election date six months from now, it could report to the court monthly on its progress. 

The Western Cape MEC for local government is opposing the application. But the ANC, the IFP and the EFF, which have been admitted as intervening parties, support the application by the commission.

The ANC suggests that the election should be postponed until April 2022 and the IFP submits that the elections should be postponed until May 26 2022.

Their submissions are premised on the anticipated fourth wave of Covid-19 infections and time constraints.

The DA, Makana Independent New Deal, African Transformation Movement, Forum 4 Service Delivery and One SA Movement — which have also been admitted as intervening parties — oppose the application by the commission.

Their opposition is on the basis that the Constitutional Court has no power to postpone the elections because it would amount to a constitutional amendment, and only parliament has the power to amend the constitution.

The DA further contends that the risks posed by Covid-19 can be managed and it would be safer to hold elections in October 2021 than in February next year.

The Council for the Advancement of the SA Constitution (Casac), Freedom Under Law (FUL), the SA Institute of Race Relations (IRR) and AfriForum, which have been admitted as friends of the court, oppose the application.

Casac says the court does not have the power to grant the relief sought by the commission.

FUL submits that the commission has failed to show that it timeously took the necessary steps to ensure that it is prepared to discharge its constitutional duty.

The IRR submits that October is likely to be a period of low Covid-19 transmission and the elections could be held in a staggered manner that would reduce the risks posed by Covid-19.

AfriForum says scientific evidence suggests that October will be a period of low infections and that it is not impossible for the elections to be held on October 27 this year.

The case continues.