The Electoral Commission of SA is faced with the near impossible task of deciding whether or not to forge ahead with local government elections later this year.
Former deputy chief justice Dikgang Moseneke, in a 120-page long report, has determined that it would be impossible to conduct free and fair elections — which is the golden standard of SA’s electoral project — under current Covid-19 conditions.
He has recommended that the elections be postponed to no later than February 2022.
Constitutional law expert Prof Pierre de Vos said neither decision — to postpone or not — would be an easy choice.
The constitution stipulates that when the five-year term of a municipal council expires, an election must be held within 90 days of the date on which that council’s term expired. The current term expires in November 2021.
De Vos said: “If the elections are to be postponed, it can only be done in two ways. There needs to be an amendment of the constitution, and that would take about three months to go through, and it might need 75% of the national assembly members to support it, according to the Moseneke report. That would be very tricky to achieve.
“The second option is to go to the court and to get it to extend the terms of the municipalities until February, though the constitution prohibits this.”
Moseneke’s report is not legally binding and admits that asking the court to grant an extension of the municipal council was a difficult task, more so because this had never happened in SA.
“The court will have to decide to extend the term of the municipal council, despite the fact that the constitution says the opposite. That’s a difficult argument to make. Technically, and legally, it is very difficult to postpone the elections,” said De Vos.
If the court does not grant an extension of the council and the constitution is not amended to allow for a postponement, local government stops functioning, municipal councils stop functioning, councillors stop being paid and mayors are no longer the mayors, according to De Vos.
There are no easy options. Either the constitution is changed or the court orders an extension, or elections must be held. There are no other options available.
— Prof Pierre de Vos
“There are no easy options. Either the constitution is changed or the court orders an extension, or elections must be held. There are no other options available.”
In arriving at a conclusion that the elections must be postponed, Moseneke considered the impact of the third wave of the pandemic and that the country would have not reached population immunity by October, among other factors.
Following the report, the IEC said it was holding meetings with various stakeholders to ensure there was consensus on its next move.
Among the stakeholders is cooperative governance minister Nkosazana Dlamini-Zuma, according to IEC spokesperson Kate Bapela.
She said the commission was studying Moseneke’s report to align its plans and explore possibilities from a legislative and operational point of view.
“Elections are a massive task that involve so many people. We cannot do an election alone. We’ve got to consult all parties, government departments and various stakeholders to make sure that everybody understands and all of us agree on the same position, said Bapela.
She said the commission would communicate the outcome of the consultations in the coming days.
“We will later this week, or early next week, get back to South Africans to say where we are in terms of voter registration and other matters. Right now it is meeting after meeting,” she said.
Political parties were among the most divided stakeholders during public hearings at the commission. Those calling for postponement had raised concerns over the need to ensure free and fair elections, the need to prevent further Covid-19 infections and to protect lives.
Meanwhile, those who advocated for elections to forge ahead raised concerns over the right to elect a new government every five years as a fundamental principle of the constitution.
“A government that does not receive its mandate from the people, through the expression of their will in free and fair elections, will not have legitimacy. But what is more, the outcome of such elections would be invalid to the extent that they are unlawful and inconsistent with the constitution and other law,” said Moseneke.
The ANC has not responded to a request for comment on Moseneke’s findings.
The DA’s Siviwe Gwarube has rejected the findings of the report and said the party was considering its next steps.
The DA will now study the Moseneke report in light of the constitutional implications thereof and communicate our next steps in due course.
— Siviwe Gwarube, DA’s national spokesperson
“The DA does not support the postponement of the local government election. We have said from the start that it is possible to hold elections within Covid-19 protocols. The DA will now study the Moseneke report in light of the constitutional implications thereof and communicate our next steps in due course,” she said.
The EFF’s Vuyani Pambo said it welcomed the report and would propose an emergency convening of the national assembly to pass an urgent motion to amend the constitution to allow for the postponement of elections.
“The former deputy chief justice echoed the sentiments of the EFF, that voters will not be able to exercise rights that are necessary for free and fair elections, and that political parties and independent candidates will be unable to canvass and interact with the electorate under the current deadly pandemic and the associated regulations and restrictions,” Pambo said.
The IFP’s Narend Singh welcomed the report.
“Though we understand that local government is in a parlous state and that new leadership is needed, this change cannot come at the cost of the lives, livelihoods and the general wellbeing of our people,” he said.
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