“With the greatest of respect, you dare not do it, you should not do it and you have no power to do it,” said advocate Ismail Jamie to the constitutional court judges during the application by the Electoral Commission of South Africa (IEC) to postpone this year’s local government elections.
Jamie, who is representing the Western Cape local government MEC Anton Bredell, argued that members of the apex court have sworn an oath to uphold the Constitution and the law. “If this court were to grant the relief sought by the commission, it would set a precedent that will stand for as long as this country stands with this Constitution,” he said.
The IEC approached the constitutional court after it announced in July that it had adopted a report by retired deputy chief justice Dikgang Moseneke that if the elections were held on 27 October they would not be free and fair.
Moseneke was commissioned by the IEC to investigate whether the elections would be free and fair if held in October, given the limitations posed by the Covid-19 pandemic, which would also affect election campaigns. He recommended that the vote be pushed back to February 2022.
Moseneke’s report cited expert opinion from the country’s leading scientists, including those specialising in epidemiology. The scientists said the actual number of infections was probably three times higher than the official record. They said that October would be a period of lower infections but holding the elections then would result in a resurgence that the country would be unable to manage.
Jamie argued that the court should not preempt the freeness and fairness of the elections, adding that it would only be able to judge the freeness and fairness of the elections after they were held.
Advocate Max du Plessis, acting on behalf of the Democratic Alliance, said the Constitution was clear that the constitutional court was its guardian and not its author or editor.
“Once the courts are not constrained by the Constitution then the Constitution is no longer supreme. That is something we have all skipped over a little too quickly.”
Du Plesis argued that to grant an order suspending section 159 of the Constitution would intrude on the legislature’s powers.
“We don’t want to be hyperbolic but we must be realistic. We are in a political climate where, with respect to the court, we must be realistic…Today it’s the commission asking for just a little more time for the elections, tomorrow it’s government reaching for another applicable common law doctrine to shake its socioeconomic right obligation because budgets have run dry or there is a political party that starts coming to the court asking for a president’s term of office to be extended beyond a second term,” Du Plesis said.
The IEC, through its legal representatives advocates Wim Trengove and Steven Budlender, argued that the commission doesn’t need to show the physical impossibility of organising municipal elections by 1 November.
“It can do so, it has so,” said Trengove, saying that although holding elections was possible, “there will not be a proper opportunity for the parties to compile their nomination in good time. It will be an unsafe election. The parties, particularly the less well endowed parties, will not have proper opportunity to campaign.”
He said that it was impossible for the IEC to meet its constitutional demands. The IEC’s predicament, he said, was that it was unable to organise an election that satisfied its constitutional demands.
He said elections held by the mandated 1 November deadline as charged by the Constitution will introduce two risks.
“The first risk is that the elections will be vulnerable to being overturned. If elections are shown to be not free and fair then they would also not have political credibility. Society will not respect the outcome,” Trengove argued.
“The DA’s argument is a very cynical approach. Nobody begrudges them their affluence and the sophistication of their electioneering. Those parties who are not affluent, who do not have an established database, who do not have the electronic communication, who don’t have the advertisement, those parties are reliant on door-to-doors and rallies … those parties can be unfairly deprived of those means simply because there is a theoretical option that some parties can afford. It would yield an unfair outcome if the DA were to be left with the luxurious machines while the poorer parties get to be deprived of all they have and for that reason that would be an unfair outcome.”
Budlender argued that should the court’s remedy not find in favour of the IEC, the commission might theoretically solve the voter registration problem but it won’t solve the problems regarding campaigning.
Voter registration was initially scheduled for 16 and 17 July but, because of stricter Covid-19 regulations, it was postponed to 31 July and 1 August and was then cancelled.
In its founding affidavit, ANC deputy secretary general Jessie Duarte said conventional methods of registering people to vote have stood the test of time and recent experience demonstrates that they are most effective at encouraging people to register to vote. Duarte added that the new online registration formula had produced poor results.
Budlender said the IEC was seeking an order that elections must be organised within a given time period stated by the constitutional court, which must be agreed on with the cooperative governance and traditional affairs minister, Nkosazana Dlamini-Zuma.
“If our Constitution with its wide remedial powers, if we can’t create for unconstitutionality brought about by this possibility, it will be astonishing to that effect because it would mean no country would be able to,” Budlender said.
The DA and the ANC blamed the IEC for having waited until the last minute to approach the courts.
Advocate Anthony Stein, acting for the ANC, said the IEC should have woken up earlier.
Stein argued that it was cheap to argue that the courts should wait for the elections to conclude to determine whether they were free and fair.
“The court always has the power to stop unconstitutional conduct in advance” Stein said, adding that in some instances “the court has gone so far as to say there may in fact be an obligation to do so”.
He argued that the most appropriate date to hold elections was in April 2022 because this was the safest date. He agreed with Budlender that Dlamini-Zuma would need to be consulted.
“This gives the IEC an opportunity to correct any mistakes in its preparations thus far,” Stein said.
The EFF, represented by advocate Mfesane ka Siboto, sought a relief that the court directed the IEC to extend the date for the candidate nomination list submission.
He also argued that the EFF should be granted relief which states that President Cyril Ramaphosa, Dlamini-Zuma and the National Coronavirus Command Council are directed to either amend the regulations so that political parties can gather and nominate candidates.
Representing the African Transformation Movement, advocate Anton Katz argued that the relief sought by the IEC should be dismissed with costs.
He argued that even during the most radical scenario when the country is under a state of emergency, parliament must oversee that.
He said the state of emergency allows parliament to make laws that deal with a state of emergency that protects the life of the nation.
“We ask that the application be dismissed,” Katz said.