This was the question posed by Chief Justice Mogoeng Mogoeng during yesterday’s Constitutional Court hearing.
The court was hearing an application for leave to appeal by the Independent Electoral Commission against a judgment the Electoral Court made in February‚ which postponed by-elections in Tlokwe ‚ North West.
The IEC said if that ruling was allowed to stand it would disenfranchise 12 million voters and take until 2020 for the IEC to comply with the judgment.
Counsel for the commission‚ Wim Trengove SC‚ said the IEC would not be able to obtain addresses for all people on the voters’ roll in time for this year’s August municipal elections.
Chief Justice Mogoeng said the “bottom line” was that everyone arguing before the court had a duty to find a way for the elections to take place.
The central dispute is whether the IEC has a duty to ensure that the voters’ roll contains the address of every voter with a formal address.
The IEC said its duty to obtain and keep addresses only applied to voters registered after December 2003, when an amendment was made to the Electoral Act.
Counsel for the Tlokwe independent candidates, Andre Bosman SC, said recent voter registration drives showed that 1.4 million people could be registered over two weekends.
He argued it was thereby feasible that the IEC could register 12 million in a month.
When questioned by Justice Edwin Cameron and Justice Mogoeng, Bosman said he would not oppose an alternative remedy provided it was just and equitable.
Advocate Muzi Sikhakhane suggested that the Constitutional Court temporarily suspend Section 16 (3) of the Electoral Act to allow this year's elections to proceed.
But the Constitutional Court judges disputed the notion that this was an option open to them as there was no finding that section 16 (3) was unconstitutional.
Sikhakhane said, ultimately, a just decision was needed to make sure the August 3 municipal elections took place.
Counsels for the DA and the IFP both indicated that they were not opposed to trying to find a practical interim solution.
— Additional reporting by Ernest Mabuza
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