How IEC has made it difficult for Concourt to reject an election delay

The Electoral Commission of South Africa (IEC) is pursuing a multipronged strategy to have the October elections postponed while, at the same time, preparing to organise the polls just in case.

The commission’s plan gave the Constitutional Court little grounds to reject its application. In addition for an outright postponement, tactically the commission is to seek an alternative relief from the court to declare that the failure to hold the municipal elections by 1 November as unconstitutional and invalid and suspend the declaration of invalidity until the end of February 2022.

It would also ask the court to assume ongoing supervisory jurisdiction where it required the commission to report to it periodically on its progress in arranging constitutionally compliant elections in February 2022.

If this is granted, to avoid uncertainty about the legal status of current municipal councils, it would request an order that the municipal councils remained competent until newly elected councils are declared elected.

The commission said its application went directly to the ConCourt because it raised constitutional matters pertaining to
constitutional rights of voters.

“This court application is an extraordinary one and presumably unprecedented. The issues which are core to the application have a bearing on the political rights of citizens as well as the right to life, bodily and psychological integrity and access to health.

“The application will undoubtedly offer the constitutional court another opportunity to contribute to the evolving jurisprudence of our constitutional order,” said Glen Mashinini, IEC chairperson.

In case the court order was not granted, the application was on an urgent basis due to the need for certainty on the preparations for the municipal elections.

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“The commission and electoral stakeholders are in an untenable position where preparations are proceeding for 27 October while, at the same, they are anticipating the outcome of the constitutional court application for a possible
deferral,” Mashinini said.

IEC chief electoral officer Sy Mamabolo said the commission appeared to lean on the recommendation of the Moseneke investigation to postpone the polls to February due to possibility that they would not be free and fair due to the pandemic impact and other factors.

– ericn@citizen.co.za