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DA insists IEC favoured the ANC after Constitutional Court dismisses application

The Democratic Alliance on Monday insisted the Electoral Commission of South Africa’s (IEC’s) decision to reopen candidate registration was a political favour to the governing party, after the Constitutional Court dismissed its application to declare the move unlawful.

The ruling was widely expected after the court at the weekend published its reasoning for an order a fortnight ago dismissing the IEC’s application to postpone the local government elections until next year. 

It means the ANC has another chance to register candidates in 93 municipalities after missing the original 23 August deadline to do so.

The IEC interpreted the initial court order as allowing it to amend the electoral timetable where reasonably necessary, but the DA argued that the court order did not envisage any adjustment to the timetable in respect of party lists and ward candidates.

In its view, the only amendments enabled by the court ruling were those reasonably necessary to accommodate the addition of new voters to the roll.

However, when the court released the full judgment at the weekend, it became apparent that the application would fail. 

The majority judgment, penned by Judge Owen Rogers, made plain that although the court specifically foresaw that the commission may need to make changes to dates relating to the finalisation of the voters’ roll, it did not bar it from making other changes it deemed necessary.

“Our order neither required nor precluded the commission from amending other items of the timetable, provided of course that such changes still enabled the elections to be held on or before 1 November 2021,” it said.

On Monday, the court said the commission was, therefore, correct in submitting that the order did not preclude it from amending the current timetable in relation to candidate registration. 

“The order does not say so, and it would have been an egregious judicial intrusion on the commission’s statutory powers to have done so. That this was not the intended effect of the order is made clear in the passage quoted earlier from the majority judgment.”

The court noted that the political motivation for objecting to reopening the registration of candidates was easy to see. 

“Notably, the ANC failed timeously to submit its party lists and ward candidate nominations in respect of 20 municipalities and 598 wards. In 13 of these municipalities, the ANC has comfortable majorities in the municipal councils, and has enjoyed these majorities in 11 of them for many years,” it said. 

“One can thus understand why other political parties might object to an extension of the candidate cut-off date from 23 August to 21 September, since the extension would give the ANC an opportunity to remedy its failure to meet the previous candidate cut-off date whereas, without an extension, the ANC would be removed as a potentially successful political rival.”

But it said given the urgency of the ruling, and the fact that it was made without hearing oral argument, it would make no finding on whether the commission’s decision was impeachable on the basis of ulterior motive.

The DA had argued that reopening the process would leave the IEC open to allegations that it was biased in favour of the governing party. The court said if the main opposition, or any other party, wanted to challenge the process on those grounds, Monday’s ruling did not prevent them from doing so.

“If after the event, the DA or any other political parties consider that the elections in particular municipalities were not free and fair because of alleged bias by the commission in extending the candidate cut-off date, this judgment will not preclude such challenges.”

On Monday, Helen Zille, the chairwoman of the DA’s federal council, said the party accepted the court ruling, and that the declaration of the initial proclamation of 27 October as the election date as null and void, created “a gap” for the IEC to reissue the election timetable.

She reiterated, however, that the IEC had acted to favour the ANC.

“The DA will continue to monitor the freeness and fairness of the election accordingly and will not hesitate to use the opportunity opened by the Constitutional Court to challenge the IEC if any further examples of bending the rules in favour of the ANC emerge during this election,” Zille said.

The Inkatha Freedom Party, which supported the DA’s application, said it found the ruling regrettable, along with the fact that time constraints did not allow the court “to interrogate the bona fides” of the commission’s view.

The elections will be held on 1 November.

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