IRR to join legal action on election postponement

Institute says the election, constitutionally speaking, cannot be held later than 1 November

IRR to join legal action on election postponement

16 August 2021

The Institute of Race Relations (IRR) will be joining legal action regarding the possible postponement of October’s local government election as a Friend of the Court.

The matter, to be heard by the Constitutional Court on Friday, 20 August, is a vitally important one. It will count among the most important cases pertaining to South Africa’s democracy to be heard in the past 27 years.

The background to the IRR’s intervention is that the Electoral Commission (IEC) has applied to the Constitutional Court to postpone the municipal election to February 2022. However, to do so would be in explicit contravention of the Constitution. The election, constitutionally speaking, cannot be held later than 1 November. This is because elections to legislative bodies in South Africa must be held no later than 90 days after the expiry of their term. The terms of municipal councils expired on 3 August, leading to a date of 1 November as the latest an election can be held.

As the Constitution stands, there is simply no mechanism that allows a postponement beyond that date.

The IEC is relying on a report it commissioned from former Deputy Chief Justice Dikgang Moseneke – which assesses the advisability of holding the election as scheduled versus postponing it – as the foundation of its application.

Part of the rationale for postponing the election to February rather than holding it in October as originally scheduled is that there is some uncertainty regarding what the Covid situation will be like in October. However, nor do we know what the situation will be like in February – and some of the medical experts who made presentations to the Moseneke Commission said that while October was likely to be a period of fairly low Covid transmission, we could be in the beginnings of a fourth wave in February, if the virus continues to behave as we have come to expect.

There is no guarantee that the threat posed by Covid in February will be any less than in October.

Political parties may argue that, given the pandemic, they will not be able to campaign as they would in other elections. This may be true but elections are too important to simply postpone. Political parties must become innovative in terms of how they reach voters or risk becoming participants in the unravelling of our Constitution.

If the Court decides that a nationwide election cannot be held on 27 October, the IRR proposes that elections be staggered by province with an eye on Covid infection rates. Those provinces which have low infection rates (such as Gauteng currently) should be allowed to have elections proceed at the earliest possible moment, to allow the entire electoral process to be completed throughout the country as close as possible to 1 November.

There is a precedent for staggering elections. South Africa’s first post-apartheid local government elections were held at different times in different provinces. While seven provinces went to the polls on the same day in 1995, KwaZulu-Natal and the Western Cape each held elections on separate days in 1996.

Says IRR Campaign Officer, Duwayne Esau: “Postponing the election must be an absolute last resort in extraordinary circumstances. The IEC is essentially asking the Constitutional Court to save its bacon after it has failed to fulfil its constitutional mandate. Other solutions must be found before playing fast and loose with the hard-won right to vote of all South Africans. Our proposal balances safeguarding the Constitution with the concerns of the IEC. Now they will have no excuse.”

If you would like to support our legal challenge to save your vote you can do so here: https://irr.org.za/campaigns/save-the-vote – or you can donate R10 by SMSing your name to 12345 (Ts & Cs apply. SMS costs R10).

Issued by Duwayne Esau, IRR Campaign Officer, 16 August 2021