WATCH | ConCourt hears urgent IEC application seeking postponement of local elections

Lawyer for the Electoral Commission Wim Trengrove submits that there are serious legal and political risks presented by holding the Local Government Elections in October.

Trengrove adds that no convincing evidence has been produced to contour-act the commission’s evidence on three issues: “Firstly, the proper voter registration before 1 November is impossible. It means that you are going to disenfranchise lots of people. The right of voters is at least to have an opportunity to register, if you don’t make this opportunity available to them, then the rights of all 15 million people is violated.”

He says all the parties agree that there isn’t sufficient time for the nomination process to be completed. “

The facts are to have an election on 27 October, the commission tells us that according to their timeline, the nominations have to be completed by the 23 and 27 of August. The ANC and other parties say that’s impossible.”

Trengrove concludes his submissions by adding that nobody has produced evidence that the IEC can hold free and fair and constitutionally compliant elections by 1 November.

Jimmy Ndwandwe, who is the legal representative for the Forum 4 Service Delivery says the Constitutional Court should not allow for the postponement of the local elections.

“That would be unlawful, unconstitutional and invalid,” Ndwandwe says. He submits that the Constitutional Court is being asked “to commit a violation of the constitution of the Republic of South Africa”.

“The court is further asked by the applicants to take the hand of the applicant while the applicant is in this journey of violating the constitution. What is being asked is a direct assault of Section 2 of the constitution. The Constitutional Court is being asked to commit an act of violating the constitution,” Ndwandwe adds.

He says that the applicant has known about the Covid-19 pandemic since March last year. “The applicants have failed to make a plan. It is clear, we have five levels under Covid-19. What was simply required was to anticipate that the day of the elections could come under each level. It’s not rocket science.”

Ndwandwe also submits that the applicant failed to consult adequately and at the relevant level to all stakeholders.

He submits that the argument that there have not been enough voters registered to vote Should not be used as a Russian d’etat to postpone the elections.

Jamie said the IEC should have gone to Parliament and that they should have thought about postponing the elections earlier.

He added that the IEC should have been mindful about the virus from earlier, and how it would impact on the upcoming local elections.

Max Du Plessis representing the DA said the court couldn’t make an order contrary to the Constitution that would be undermining its supremacy. 

“Once courts are not restrained by the Constitution, then the Constitution is no longer supreme. And really we say perhaps that’s something we’ve all skipped over too quickly.”

“We are a constitutional democracy. But once the court separates that it can grant this type of relief that’s effectively contrary to unambiguous constitutional text, we will have become something else. We will have become a jurist office.”

Du Plessis said if the Constitutional court were to postpone the elections, this would only intrude on the Legislature’s express powers on the Constitution. 

“Which is why I say the Constitution reserves that power. To alter the Constitution in respect of those time limits or any other parts of the Constitution. For the legislature alone. And it dictates the terms for the amendment.”

“We don’t want to be hyperbolic. But we must be realistic. We are in a political climate where the court must be realistic. If the commission is right then everything in the Constitution, every right, every check, every balance comes with some form of the on-off switch.”

“Today Justices it’s the commission just asking for a bit of time for the elections. Tomorrow it’s government reaching for another kind of common law doctrine to shake up its socio-economic right obligations because budgets are run wrong. Or there’s 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 Plessis said once the law was opened, it would be pushed against. 

“This court’s role is to be the guarding of the Constitution. It is not above the Constitution with authorial power to re-write it,” he said.

Du Plessis added that there was no clear evidence from the executive or Parliament about their attitude to amend the Constitution.

“That would be a fundamental violation of the separation of powers. Not only that it would be pre-emptive preservation by this court. And that would be a violation of the separation of powers. Particularly in terms of the lack of evidence of the principle of powers justices,” he said.

The DA said the only evidence that was there on the separation of power issue was the IEC in its replying affidavit.

“It’s a woeful abrogation of power to itself. It says it took the view that it wouldn’t seek to encourage the constitutional amendment because it thought it would create a dangerous precedent.”

“Well with respect it’s never a dangerous precedent to follow the path of the Constitution. If an amendment was acquired the court should set the standard,” he said.

- Pule Letshwiti-Jones

After lunch, Jamie said that other countries have held safe and fair elections. And that there was nothing that separated us from the rest of world.

Given the need to hold the local government elections, Jamie submitted that the court does not have the power to amend the Constitution.

“To amend the Constitution is not allowing the government to do so. It requires a supermajority. Which would require other parties to come onboard. But even if it was a single party that could do so. It still isn’t within our constitutional architecture allowing the government to do so.

“It’s allowing Parliament, the elected representatives to do so,” Jamie said.

He added that if an amendment of the Constitution was permissible then that was the architectural frame thought for the country.

“This is the Constitution that we have. It allows itself to be amended. But only by a certain majority depending on the nature of the amendments. And that is the constitutional order.”

- Pule Letshwiti-Jones

Meanwhile, the IFP has proposed that the elections be postponed to May 2022 to allow for the countries full community immunity vaccine program to roll out.

Representing the party, Warren Shapiro said the more time the court could give the more time people could be given time to exercise their rights freely.

"Why are they a limit on a hundred people outdoors, because more than that it's not safe. Yet what the opponents of these applications want to see happening is thousands of people outdoors standing in a line on one day."

"If we can't have a hundred people in a stadium how can it be safe? To expose millions in one day over only 23 000 voting stations to the same risk," he said.

Shapiro said a blind couldn't be turned on who would be placed in the firing line if the elections were to continue.

The legal counsel representing the Department of Cogta Minister Nkosazana Dlamini-Zuma, Ngoako Maenejie didn't argue much except to say they would abide by the Constitutional Court order.

However, the Maenetjie said the submission made by the DA criticising Zuma team-up with the IEC was false.

"We submit that it's not facts. The IEC in terms of schedule three is required to put up a timetable for the elections. The timetable must allow for all the steps to be taken that will allow for free and fair elections."

"You heard from political parties on how exhaustive those steps are."

But representing the MEC for local government in the Western Cape Ismail Jamie said the postponement of the elections posed a threat to the Constitution.

"We submit that this court has over and over again upheld the principle of the separation of powers," he said.

Jamie said the Constitutional Court had no constitutional power or authority to make the order to postpone the elections.

The court adjourned for lunch.

- Pule Letshwiti-Jones

Mfesaneka Siboto representing the EFF said the party's interest was the call for the electoral commission (IEC) to have the local government elections postponed.

The party said in the context of free and fair elections not many of their party constitution could have access to online resources if voting were to continue as suggest by the DA.

Siboto said if the process of having elections run was given the green light, then it would course instability within the country.

The alternative relief they seek for President Cyril Ramaphosa, the Minister of Cogta Nkosazana Dlamini-Zuma, and the National Coronavirus Command Council is directed to amend the regulations such that political parties are allowed to gather and nominate their candidates.

"So it' s a directory. Steps that must be undertaken and linked to that directive would be the second part of our remedy which is to say the IEC itself must be directed to extend the date for the nomination lists submission which is currently the 23rd of August," he said.

Siboto said the proposed timetable of the IEC would allow for the nomination list of the EFF to run smoothly in an event where the local government elections weren't disturbed.

- Pule Letshwiti-Jones

Anthony Stein representing the ANC said on the question of free and fairness said the IEC focused primarily on the postponement dates.

And said the IEC operated in a narrow view of free and fairness.

The ANC said it has never had an opportunity to amend its Constitution to accommodate the pandemic and had to act within the bounds of the country's Constitution.

It said many of its political activities were already hampered due to the Covid-19 pandemic.

The ANC said the voters registration would last only two to three weekends.

The party added that experts didn't consider the effects of the virus on the entire electoral process.

And still, less did they consider the events subsequent to the evidence they gave during the Justice Moseneke inquiry.

The ANC referred to a number of adverse effects which are fundamental to the ultimate freedom and fairness of the upcoming local government election.

"It's crucial to protect or that process [Candidate selection process] as nominations can be heavily contested and it's necessary to prevent conflict in the fall out from that nomination process," he said.

The party said usually a quorum of ANC branch meetings was 100. However under the lockdown quorum in most cases could not be met.

Under level 4 the entire process came to a complete standstill. Meaning there was no advancement of the nomination processes.

"The IEC is to blame. They should've woken up earlier. That is the essential course of the challenge. But the issue is not a question of blame. It's a question of the possibility of the fairness of the election at this state."

"Crucial to that is that there’s been no opportunity for parties to adapt. If one says there are alternatives arrangements that can be made at this late stage. They aren't creative measures that many parties can undertake to achieve the same impact," said Stein.

The EFF is now up to argue

-Pule Letshwiti-Jones

Steven Budlender representing the IEC said the appointment of Chief Justice Dikgang Moseneke was on the premise of some political parties expressing anxiety.

Budlender emphasized that said two voters' registrations were scheduled but were both postponed initially.

Budlender explained that the registrations of 31 July had to be cancelled due to the Covid-19 pandemic.

"With respect justices, it's become commonplace to bash organs of state. But really there cannot be suggestions in my respectful submission that the commission had sat on its hands or done nothing or anything of the sort."

"They've acted as a responsible organ of state, they've acted diligently, they've done the best, they continue to prepare for the 27th of October but the submission is that it's not possible to achieve constitutionally compliant elections for that reason," he said.

Budlender added that what it meant was that the elections would take place in February.

He said it would fall with the Constitutional Court's power to have a voters registration. However, this would be dangerous as an election would be held in October amid a pandemic.

And that this would destroy the Commission's voters timetable.

Therefore it wouldn't possible for a voter's registration to take place.

"What you are going to do is end up with respect with the worst of all worlds. You are going to end up with the problems created by holding an October election in the era of Covid which are many faults and we've explained those. But you going to compound that, by destroying the commission electoral timetable."

"So that electoral timetable is explained in the founding affidavit of Justice Moseneke electoral timetable report, to run the elections properly from the date of proclamation you need essentially 82 to 83 days. That's the practicality of it."

"You now going to take that timetable which already is even more difficult because of Covid and into the middle of that, you going to direct the commission to hold a registration week again."

Budlender said the election timetable would not be able to run as planned if in the middle of this the court would proceed to impose the registration weekend because the whole system worked on the basis that you register first, then the minister calls the elections.

Then the 82-83 day process runs.

"What the court would be doing is collapsing those processes and it would in respect be a recipe for disaster," he said.

Budlender said this wouldn't also solve the issue of nominating candidates.

"You’d recall all the parties unanimously rejected the timetable for the October 2021 elections. And that's the first time it's ever happened. I know we see the political parties at war with each over. But from the commission's point of view, normally there's quiet good cooperation in trying to agree on those sorts of issues."

The counsel for the ANC, Anthony Stein, is now up to argue.

-Pule Letshwiti-Jones

Trengove said a free and fair election before October would be impossible.

But, Deputy Chief Justice Leona Theron asked what would happen if the country entered a fourth wave, which was bound to happen later this year in December.

Trengove said there would be a time to allow parties to nominate and register and that the fourth wave wouldn't deter the commission from further exercising its activities then. 

Court has adjourned for a tea break. 

- Pule Letshwiti-Jones

Deputy Chief Justice Steven Majiedt said South Africa would be the first country to postpone elections under the global Covid-19 pandemic.

"It seems to me that the primary relief that you seek would require of this court to exceed the bounds of separation of powers to do parliaments work. Where a supermajority of 75% is required to amend the Constitution as far as elections are concerned."

"As far as I could see we would be the only country in the world in the face of a global pandemic face with similar elections, presidential elections, provincial elections, national elections. We would be the only country in the world where the judiciary would postpone the election as opposed to situations in France where Parliament passed the legislation and the UK too in the face of this coronavirus pandemic to make provision for this challenge," he said.

But Wim Trengove said the commission didn't want to take the law into its hands, hence the move to approach the constitutional court.

Trengove said compliance was impossible with the law here because the Constitution made three demands which were irreconcilable and couldn't be satisfied.

"It is irrational for the Constitution to say: 'I know it's impossible but you must still do it.' But even if we are wrong, even if it's the constitutional answer, we submit that it is. Even if we are wrong why elevate the one constitutional requirement, the time bar over the two others. What is there to suggest? That the time bar should triumph the free and fairness."

"I would've thought that free and fair elections are more important but the jurisprudence teaches us that all constitutional rights are equal and there's no hierarchy between them," he said.

-Pule Letshwiti-Jones

Wim Trengove representing the Electoral Commission (IEC) has submitted before the Constitutional Court that the constitution requires an election.

Those elections are held regularly, every 5-years and 90 days, That requirement be free, fair, and safe. And that three constitutional rights all carry weight.

Trengove said their fundamental proposition was to prove whether it was possible to meet the three demands.

He added that it was not possible to meet the demands and that it was not possible to hold elections.

He said the commission was not to be blamed for the predicament of meeting the three constitutional demands.

"The law including the constitution does not demand the impossible. If it's not possible to meet the demands then the law including the constitution permits us to do the next best thing to compromise by striking a balance between those three demands."

We submit that the most appropriate balance is to hold free and fair elections as soon as possible. Even if we can't do so by the first of November," Trengove said.

He said the IEC however did not content to defy the constitution that the constitutional court has the power to defy the Constitution.

Trengove said those were "outlandish contentions" based on the misunderstanding of the case.

"We do submit that floor is common to those who oppose the application. That they differ from us on various issues. Some of them argue that the free and fair election by the 1st of November is still possible."

"Well that's a factual debate and we will address the issue. Some of them argue the commission is to blame. That's also a factual issue," he said.

Trengove argued that the commission demands three things and that there was no reason why the deadline should trump the requirements of the free and fair elections.

He added that there wouldn't be a deadlock if the terms of office expired of the current municipal council as the current councils would remain in office.

He said the extension would not impact the office of councilors.

"We will submit with respect that the constitution does not require the subject if it's unable to satisfy the demands of the constitution. To seek an amendment of the constitution in its self."

"Obviously the commission cannot amend the constitution. It has no duty to seek the amendment of the Constitution. We will submit to you as well that it would not have been an appropriate response to seek to amend the Constitution," he said.

Trengove added that it would on the contrary set an undemocratic desirable precedent if it were to be established that a majority party may entrench it's in office by amending the Constitution to extended its term of office.

"We submit that the commission was neither required, nor was it competent, nor appropriate for it to seek a constitutional amendment," he said.

Trengove said the commission was in a position to allow for the elections to take place. But time to hold a registration weekend had run out.

"There will not be a proper opportunity for the parties to compile their nominations in good time. It will be an unsafe election. The parties, particularly the less in dull parties (political parties with less resources to campaign) will not have proper opportunity to campaign for the election."

"When we say impossibility. What we mean is not that is physically impossible. But what we mean is that it's impossible for all three constitutional demands. And there's no reason why the deadline should win the day, over the requirement of free, fair, and safe elections," he said.

Trengove said the commission was not in a position to have a constitutional complaint election. And that if the elections continue, they wouldn't be free, fair, and safe.

"The predicament it finds itself is that it's unable to organise an election that satisfies the constitutional demands and that is why it's here. It submits that the answer to its dilemma is that the law does not require the impossible," he said.

Trengove said if the elections were to continue, two risks which are legal and political would stem from the situation.

"The first risk is that the elections will be vulnerable to being overturned and in fact if the elections were not free and fair. Then they are unconstitutional and must be overturned."

"But the consequences would also have socio and political consequences. If the elections are shown to be not free and fair, then they would also not have political credibility. Society will not respect the outcome,” he said.

He added that if the elections were to be forced by the deadline, some parties would be better able to cope with it. While other parties did not have the resources and depended on door-to-door canvassing, branch meetings, and rallies.

-Pule Letshwiti

Majiedt raises the issue that Professor Karim argued that October would be safer that February.  

Trengove argues that by February, 70% of the population will be vaccinated.  

But Majiedt counters on the issue of vaccine hesitancy, and there's no evidence that the 70% will be achieved.

Majiedt argues that the IEC itself is the cause of the problem. Trengove accepts the argument.  

But he says that an election is impossible, given the circumstance

Only 25 million voters are registered out of 40 million potential voters.  

And some have moved and would like to vote in their new residential areas, argues Trengove

Justice Nonkosi Zoliswa Mhlantla raises the question of the voter registration weekends which were cancelled.  

Trengove says it is relevant, but argues that the history is irrelevant. But says that the IEC was not to blame because it was under lockdown Level 4.

Trengove apologises to creating the impression that the IEC was seeking a constitutional amendment.  

Asking for the court to grant an equitable remedy

Justice Leona Theron takes up the issue of elections.  

Argues that the law allows for the delay of results of the elections, not the election. Trengove argues that the law caters for the unforeseen

This debate is whether the election can be free, fair and safe.  

The risk is that the elections will be vulnerable to being overturned, says Trengove.  

Elections that are judged as not free and fair will have no credibility, he argues

Justice Ray Zondo questions whether the IEC should have to show whether the election will not be free and fair. Counsel for the IEC Wim Trengove agrees.

"It's impossible to meet all three requirements."