The local elections will go ahead, but the IEC’s failings have not escaped the Concourt
There was much relief that the Constitutional Court found a way to ensure the local government elections scheduled for August will proceed as planned. In its judgment in Electoral Commission vs Mhlope and Others last week, the majority of the court found a pragmatic solution to the problem of valid voters’ rolls.
The general reaction was one of praise for the court, which is certainly due. A reading of the judgment reveals that the outcome was probably the only sensible option available, so the longer-term significance of the judgment lies elsewhere.
The case followed hard on the heels of an earlier decision of the Constitutional Court: in the 2015 case of Xolile David Kham and Others vs the Independent Electoral Commission and Another, the court was confronted with a challenge to the validity of the 2013 Tlokwe by-elections, in which part of the voters’ roll failed to reflect the addresses of some of the voters who appeared on the roll.
The court set aside the by-election and the IEC then sought to develop a response to the Kham judgment. The litigation in the Mhlope case was based on the complaint that, contrary to the Kham decision, the Tlokwe voters’ roll omitted the physical addresses of about 4 160 voters. The Electoral Court agreed with the complainants that the steps taken by the IEC to respond to the Kham judgment were inadequate, hence the appeal by the IEC to the Constitutional Court.
The narrow question before the court was whether the IEC was obliged to provide the 4 160 addresses missing from the Tlokwe roll. The broader issue was how the IEC was obliged to comply with the requirements of section 16(3) of the Electoral Act, which specifies that a voters’ roll must be furnished that includes the addresses of voters where addresses are available, and the further question of whether this obligation only operated prospectively — that is, subsequent to the passing of the section in 2003.
The majority of the court, together with two other justices in a separate judgment penned by Justice Mbuyiseli Madlanga, found that the word “available” meant that the test with regard to available addresses was an objective one, subject to the requirement of reasonableness; that is, in some cases the description of an address might be a reference to an informal settlement because the location had no defined roads or house numbers.
Turning to the question of the retrospectivity of section 16(3), Chief Justice Mogoeng Mogoeng, writing for the majority, found that, had Parliament intended to oblige the IEC to provide addresses for voters prior to 2003, it would have stated so in express terms.
Significantly, the chief justice went further in seeking justification for his interpretation of section 16(3). He said: “Courts ought not to impose unbearable or near-impossible obligations on organs of state and other institutions. To saddle the IEC with the ongoing obligation to update the voters’ roll, as opposed to alerting it to the desirability and utility of doing whatever it can to have all objectively available addresses sourced and recorded, is a power we do not have and a duty probably too onerous for the IEC to bear. Whether that obligation should rest on the IEC is a matter best left to Parliament to consider and determine. That said, the IEC would do well to optionally have all the reasonably or objectively available addresses recorded, from time to time.”
This statement reveals a keen appreciation of the need to understand the limits of the ability of state institutions to comply with burdens imposed upon them. Courts cannot simply propose actions when the other arms of the state do not possess the capacity to dispose. This part of the judgment shows a sensible understanding of the balance that must be struck between the upholding of the requirements of the Constitution and the capacity of state institutions, which possess limited resources, to fulfil their obligations.
Sadly, the court showed a less enthusiastic embrace of its own responsibilities, in that throughout the oral hearing it exhibited a marked reluctance to acknowledge that the less-than-precise formulation of the Kham judgment had contributed to the further litigation.
So much for the broader implications of this litigation. Where the majority judgment shows its profound application of common sense is in the order it crafted to deal with the August elections, in light of the fact that there is insufficient time for the IEC to comply with the address requirement.
Mogoeng set out his reasoning: “The result of the current state of the voters’ roll is that the addresses of millions of voters have, even after December 2003, not been recorded on the voters’ roll. For this reason, the August 2016 local government elections will be held on the basis of a defective voters’ roll, since there is seemingly no time to cure the defect before the elections are held. Knowing that the postponement of the elections would create a constitutional crisis [and because] they must be held no later than August 16 2016, the remedial powers in section 172 thus need to be purposively and creatively employed.”
Another outcome might have had a deleterious effect on the political stability of the country. Hence the widespread relief at the result.