Local election lies in ConCourt’s hands as SA wades into ‘uncharted waters’

Cogta minister gazettes Oct. 27 as the date for local government poll, but apex court’s decision may change that

03 August 2021 - 20:01 By nonkululeko njilo
Cogta minister Nkosazana Dlamini-Zuma says she is 'bound to fulfil her constitutional and statutory obligations to timeously proclaim the date for the elections'. File picture.
Cogta minister Nkosazana Dlamini-Zuma says she is 'bound to fulfil her constitutional and statutory obligations to timeously proclaim the date for the elections'. File picture.
Image: Simphiwe Nkwali

The date for the local government elections is Oct. 27, but this is not set in stone, says co-operative governance minister Nkosazana Dlamini-Zuma.

The minister on Tuesday officially gazetted Oct. 27 as the date for the vote but said the IEC would be going to court “before the end of the week” to seek a postponement.

“If the Constitutional Court says it’s not agreeing to the postponement, I don’t think we have another recourse ... There is no legislation that gives us, the government, Cogta or the IEC the right to postpone the elections. If there was, we would have postponed them,” she said at a media briefing.

Dlamini-Zuma’s comments came after a report by former deputy chief justice Dikgang Moseneke, tasked with leading an inquiry into whether the planned October vote could be free, fair and safe given the impact of the coronavirus pandemic.

Moseneke on July 20 handed over his final report, in which he found that elections would only be free and fair if held no later than February next year. 

Moseneke’s findings, which are not binding, considered health risks associated with Covid-19 and limitations on gatherings. There were more than 4,000 submissions to the inquiry.

Many political parties welcomed the report, while others said they would explore their options in challenging the outcomes.

Dlamini-Zuma, however, said the final decision on whether the vote would go ahead in October lay with the highest court in the land. 

“As we speak, the elections are not yet postponed. That is why the IEC has to go to the ConCourt to request that,” she said on Tuesday.

But in an additional complication, Dlamini-Zuma said the IEC “can’t request a postponement for an election that has not been proclaimed” — which is why the Oct. 27 date had to be officially gazetted.

“The proclamation does in no way contradict what the judge [Moseneke] recommended. So we are just doing what we need to do,” Dlamini-Zuma said. 

Constitutional law expert Pierre de Vos had previously warned that either decision — to postpone or not — would not be easy.

He told Sunday Times Daily previously that the constitution stipulated 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 August, with the 90 days lapsing in November.

He said the postponement of elections could only happen in two ways: either through an amendment of the constitution, which could take months and require the support of a vast majority of the National Assembly members, or the IEC could approach the Constitutional Court and get it to extend the terms of the municipalities.

Dlamini-Zuma said: “We are facing a situation that was not envisaged by the people who drafted the constitution. Nobody thought of a situation like this. When it was drafted, people were concerned about having a democratic system where there are regular elections that are ... free and fair. And we are all navigating uncharted waters.”

We are facing a situation that was not envisaged by the people who drafted the constitution. Nobody thought of a situation like this. When it was drafted, people were concerned about having a democratic system where there are regular elections that are ... free and fair. And we are all navigating uncharted waters.
Nkosazana Dlamini-Zuma

“So all the issues that are being raised are intricacies that arise from these unprecedented situations, and we have to look at them. But the key for now is what the ConCourt will say,” she said.  

The IEC on Friday told parliament that though the matter was yet to be taken to the apex court, which would give finality and clarity on the matter, it had forged ahead with its other programmes, including online voter registration.

The commission had also postponed the voter registration by two weeks to the end of July, citing the third wave of the Covid-19 pandemic sweeping through the country. 

Asked if the registration weekend would go ahead as planned, Dlamini-Zuma said no.

“The voter registration weekend is a matter for the IEC, but for now, it will not be able to open the registration until the court decides,” she said.

Dlamini-Zuma explained that the official gazetting of Oct. 27 as election day was to meet statutory obligations.

“In gazetting the date, we are no way seeking to contradict the inquiry’s conclusion nor the IEC’s contemplated actions. We are merely fulfilling our obligations.

“We want the ConCourt to give us direction. We will then act accordingly and navigate all the intricate issues,” she said.

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