IEC takes a Moseneke smackdown

Two hours into a tough session of questioning, the deputy chief justice of South Africa did something almost never seen in the Constitutional Court: he effectively told a senior advocate to shut the hell up.

“Your position is astounding,” Justice Dikgang Moseneke told the advocate for the Independent Electoral Commission, Wim Trengove, on Monday. “We don’t have to debate it now.”

Perhaps because of the mildness of Moseneke’s tone compared to his words, Trengove showed every intention of pushing his case. “May I …” he began tentatively — but Moseneke slammed the door in his face.

“Your views may be interesting but I think the matter is settled,” Moseneke said, this time with no equivocation.

Trengove visibly took a second to consider the matter, then another. Then he did the only thing he could, in the ConCourt’s rules and traditions.


“Well, then I have no further submissions to make,” he told Moseneke meekly.

Without certain pieces of legislation to hand, the lay person would have found it impossible to tell what had so riled Moseneke, cloaked as it was with references to “section 16 three” and how one Act applies to another. 

But a rustle of agitation seemed to blow down the benches of legal representatives arrayed before the court where those still to bring their arguments about the fate of the upcoming local government elections were seated. 

It was, perhaps, in part simply because of how close Trengove had come to a verbal altercation with a sitting judge of the court, and to questioning a previous judgment of that court. 

But it was also, at least in part, because the IEC’s legal gymnastics had just reached a point where it suggested that the overseers of elections wanted to maintain — or perhaps even create — loopholes that would make it impossible to prevent municipal by-elections from being stolen.

Municipal by-elections, as counsel for the Democratic Alliance would later tell the court, are uniquely susceptible to theft by bussing. In national and provincial, and even normal municipal elections, voters who vote outside their registered home areas pay the price.

The obstacles to voting more than once are nigh insurmountable, requiring the defeat of several systems built to prevent just that, including the very low-tech but very effective indelible ink on the thumb.

And so any voter bussed to a different province, or local ward, from where they live means one less vote in their home province, or ward.

In by-elections there is no such cost, advocate Anton Katz told the court on behalf of the DA.

“In a by-election, that voter who is now bussed doesn’t now lose his or her right to vote in the correct ward,” Katz said, suggesting that a voter bussed into a ward for a by-election happening between regular elections would go back to his or her home ward for the normal election.

That lack of disincentive to, say, bus a great many known supporters of your party into a by-election, is no longer a theoretical problem. At the heart of the arguments on Monday was a by-election in the Tlokwe municipality, centred on Potchefstroom, previously declared to have been not free and fair. In one subsequent investigation the IEC found about 1 600 voters who it considered registered in the wrong ward.

It was never determined who was responsible for the incorrect registrations.

Tracking down the instigator might be hard, but detecting such shenanigans should be easy, at least after the fact. By law, the IEC must make available the entire voters’ roll, or any segment of it, at any time to anyone who pays a nominal fee. A simple database search would soon show up voters who hop wards, making them liable for prosecution, and rigged elections liable to challenge.

But the voters’ roll referred to in that section of the election law, Trengove argued on Monday for the IEC, is simply a list of names and identity numbers, and specifically excludes addresses. With this argument too Moseneke had some trouble, but the exclusion of addresses was crucial, the government later insisted, to protect the privacy the Constitution guarantees.

That makes things a little more complicated, and limits the ability to act on bussing-type voter fraud to political parties alone. Anyone may object to the inclusion of an individual in the voters’ roll, and a list of identity numbers across different wards will show up ward hopping. But the onus to prove fraud is entirely on the party doing the objecting. And such an objection requires that notice of it must be served on the person who should not appear on the roll. No address means no notice can be served, so no objection can be validly lodged.

In 2003, however, Parliament added a special provision to the same law for “all registered political parties contesting the elections” to demand copies of the voters’ roll — this time with addresses specifically included.

The law threatens dire consequences for any party that uses such an address-enriched voters’ roll for anything other than “election purposes”, but on Monday the ConCourt seemed happy to accept that checking for election fraud would fall under that ambit. So, in theory, a member of the public who detects a ward-hopping ID number could alert a political party, which could get hold of an address and act.

That is, if an address is available. At the heart of the argument before the court, which may determine whether local government elections can go ahead on August 3 as scheduled, the IEC held that it could not possibly have valid addresses for all voters on the roll until 2020, though it accepts an implied duty to get that house in order.

“The DA is very concerned about the by-elections that will happen between 2016 and 2019,” Katz said later.

That would still leave a solution to the by-election loophole in sight, if too far away for the comfort of all parties.

But then Trengove yanked away even that, earning the verbal slap-down from Moseneke. The provision that parties must be given voters’ addresses should not apply to municipal elections at all, he started to argue, but only to national and provincial elections — elections where they are far less important.

“It’s totally astounding,” Moseneke told him, in a fashion that bodes ill for the IEC in the judgment the court is expected to deliver on the matter soon.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Phillip De Wet
Guest Author

Related stories

A litmus test for the 2021 election

In this week’s 96 by-elections, the trend was the ANC held its ground and grew, while the DA lost big, with minority parties eating into its voter base

‘Super-Wednesday’ by-elections: all the data and who is contesting what

In this week’s by-elections, the ANC has the highest number of wards being contested. However, the turnout in some communities in areas in the Vaal district has been low — even after the electoral commission said it was ready to welcome voters

IEC all set for ‘super Wednesday’ by-elections

By-elections on super Wednesday are due to go ahead as scheduled this week. The electoral commission told the media that it is now ready for the elections, which have been put on hold since March.

The pandemic will change the electoral process

There’s a backlog of by-elections to get through before next year’s local government elections. Will voters go to the polls even though Covid protocols are in place?

Court tests protector’s powers

In the Ramaphosa vs Mkhwebane case, the court has been asked to rein in the public protector

IEC deregisters BLF, upholds ATM’s status

The electoral commission has stripped Black First Land First of its status as a political party, but rejected an appeal against the ATM
Advertising

Subscribers only

Covid-19 surges in the Eastern Cape

With people queuing for services, no water, lax enforcement of mask rules and plenty of partying, the virus is flourishing once again, and a quarter of the growth is in the Eastern Cape

Ace prepares ANC branches for battle

ANC secretary general Ace Magashule is ignoring party policy on corruption-charged officials and taking his battle to branch level, where his ‘slate capture’ strategy is expected to leave Ramaphosa on the ropes

More top stories

See people as individual humans, not as a race

We need to ingrain values of equality in education, businesses, society broadly and religious groups to see people

JJ Rawlings left an indelible mark on Ghana’s history

The air force pilot and former president used extreme measures, including a coup, enforced ‘discipline’ through executions, ‘disappearances’ and floggings, but reintroduced democracy

Sudan’s government gambles over fuel-subsidy cuts — and people pay...

Economists question the manner in which the transitional government partially cut fuel subsidies

Traditional healers need new spaces

Proper facilities supported by well-researched cultural principles will go a long way to improving the image and perception of the practice of traditional medicine
Advertising

press releases

Loading latest Press Releases…