To postpone, or not to postpone? That is the question.

Much like Hamlet, the Constitutional Court is in the unenviable position of having to make a crucial decision, at least this is according to the Electoral Commission of South Africa’s (Electoral Commission) papers. Today, the Constitutional Court will hear an urgent application brought by the Electoral Commission requesting the Court to allow for the local government elections to be held in February 2022 rather than on the 27^th of October 2021.

The Electoral Commission submits that it will be unable to hold a constitutionally compliant election in October and therefore asks the Court to do one of two things:

1. Declare that the Electoral Commission may hold the forthcoming local government elections outside of the 90-day period required by section 159(2) of the Constitution and section 24(2) of the Local Government: Municipal Structures Act 117 of 1998 and direct that the Electoral Commission hold these elections before 28 February 2022; or
2. Declare that the failure to hold the forthcoming local government elections within 90-day period required by section 159(2) of the Constitution and section 24(2) of the Local Government: Municipal Structures Act 117 of 1998 is unconstitutional and invalid but to suspend the declaration of invalidity on the understanding that the local government elections will be held before 28 February 2022.

The Electoral Commission’s application has led to a variety of opinions and submissions being provided from political parties, non-governmental organisations and civil society. This brief will tackle the question of what issues the Constitutional Court will have to face, and decide upon, in today’s hearing.

In the view of the HSF, this boils down to three main issues:

1. Does the Constitutional Court have the power to grant the relief sought by the Electoral Commission?
2. Is the Electoral Commission’s position – that it is unable to hold a constitutionally compliant election as unequivocal as it is made out to be?
3. Why has the Electoral Commission only raised these concerns now?

Each one of these questions is addressed in turn below.

Does the Constitutional Court have the power to grant the relief sought by the Electoral Commission?

This is the crux of the matter. Elections are the cornerstone, indeed the foundation of any democracy. Regular, free and fair elections are guaranteed in our Constitution.[i] The date for the regular local government elections has been set by the Minister of Cooperative Governance and Traditional Affairs as the 27^th of October 2021, in line with the Constitution. To change the date to February 2022 would be a violation of the Constitution, the supreme law of our Republic.

In the first relief sought by the Electoral Commission, the Constitutional Court is being asked to do something unprecedented – unilaterally suspend a constitutional provision. The Court is bound by the provisions of the Constitution which it must apply without fear, favour or prejudice.[ii] In the ordinary course of events, it would be up to the legislative arm of the government, Parliament, to amend the Constitution to allow for a deviation from the Constitution[iii] and the Electoral Commission has sought to by-pass this by approaching the Constitutional Court, essentially usurping Parliament.

In the second instance, failing the first, the Court is asked to condone a prospective violation of the Constitution. In principle, section 172 of the Constitution gives the Constitutional Court wide powers to condone non-compliance with the provisions of the Constitution, provided that it is subsequently rectified. However, under the present circumstances, the Court is being asked to speculate, to predict a violation, and then to condone it before it has happened.

The Court is faced with important and precedent setting questions. It is essentially being asked to override the Constitution in advance, without the constitutional authority to do so.

Is the Electoral Commission’s position – that it is unable to hold a constitutionally compliant election as unequivocal as it is made out to be?

A constitutionally complaint election must be a regular election (held within five years and 90 days); it must be free and fair; and as the Electoral Commission submits, it must be safe.

The Electoral Commission relies on the recommendations of the Moseneke Report which it had commissioned. This Report predicts that it will be safer to hold elections in February 2022. However, there is a large measure of speculation involved in reaching this conclusion. The evidence is not clear that this will be the case. It is impossible accurately to predict the waves, the variants, whether vaccines will be effective against new variants or continue to be effective against older variants, as well as the number of people who will be vaccinated by a certain date. Vaccinations are voluntary and it is also possible that we will never reach the 67% of vaccinated population that the Electoral Commission contends is essential for a free and fair election. Who is to say if anything will be better in February? Simply put, the Court is not in a position to predict the future in the unpredictability that characterises the Covid pandemic. In other words, it is being asking to decide the impossible.

A further matter the Constitutional Court will need to consider is the democratic harm that may result from postponing the elections. Government, in this instance municipal councils, receives its legitimacy through the will of the people, and this is achieved through elections. The Auditor-General has pointed out in June 2021 that many of our municipalities are in dire straits. There is therefore a real need for elections to be held, as it is a mechanism by which the people can hold those in power accountable.

Why has the Electoral Commission only raised these concerns now?

The Electoral Commission has submitted that it cannot be blamed for only approaching the Court now. It contends that given the uncertainties of the Covid pandemic, how was it to know that this would be the predicament we now find ourselves in.

South Africa has been placed under a state of disaster since March 2020. Admittedly, not many could have predicted the full extent of the pandemic but for a long time it has become clear that we would still be in the midst of Covid for the foreseeable future. The Constitutional Court is going to have to determine whether this late hour application is a self-created emergency. The Electoral Commission submits that even if it is to receive blame in this respect, it does not detract from the fact that it needs the relief sought.

The Court has been placed in an impossible position by the timing of the application – it amounts to the Electoral Commission saying that we may be late in approaching the Court, but even if we are it does not matter as you have to grant us what we ask – since we assume that more persons will be vaccinated by early next year and it may therefore be safer in February. However, it needs to be pointed out that the expert medical evidence given to the Moseneke Inquiry was not unanimous in this respect, as one expert even said that it would be safer to hold the elections in October as planned, as that would be between waves of infection.

Conclusion

This case goes beyond the simple question of whether the local government elections should be held in October 2021. The Court is in essence being asked to take on a role reserved for another arm of government, Parliament, and it is being asked to do so on the basis of where the Covid pandemic may or may not be in either October 2021 or February 2022. We would suggest that the unpredictable elements of the pandemic should guard us against speculation of this nature, especially when it is proposed as the basis for a legal decision with constitutional consequences. We will see what the Constitutional Court makes of all of this.

Chelsea Ramsden
Legal Researcher
chelsea@hsf.org.za

[i]Section 1(d) of the Constitution provides that: “The Republic of South Africa is one, sovereign, democratic state founded on the following values: Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness” (emphasis added). See also Section 19(2): “Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution” (emphasis added). Finally, in the context of local government elections section 159 provides “(1) The term of a Municipal Council may be no more than five years, as determined by national legislation. (2) If a Municipal Council is dissolved in terms of national legislation, or when its term expires, an election must be held within 90 days of the date that Council was dissolved or its term expired”.