Bernadette Wicks
Senior court reporter
3 minute read
20 Aug 2021
10:22 pm

Concourt asks if IEC is trying to amend law ‘through the back door’

Bernadette Wicks

The Electoral Commission of South Africa’s (IEC's) legal team faced a stern bench when it asked the Constitutional Court yesterday to sanction the postponement of the upcoming municipal elections.

Picture for illustration: Neil McCartney/The Citizen

Advocate Wim Trengove – for the IEC – was on the receiving end of a punishing grilling from the justices, who raised various concerns with the case.

The IEC has brought an urgent application for an order declaring it can hold the elections outside the 90-day period after which a municipal council’s term expires and within which the Constitution stipulates voting must take place.

This is with a view to postponing the looming elections from 27 October, which is when they are currently scheduled to take place, to 22 February next year, due to the Covid situation in the country.

But it was clear the bench wasn’t completely sold on the idea yesterday.

Among the issues raised by the justices was that of vaccine hesitancy.

In response to the commission’s argument that almost 70% of the population was expected to be vaccinated by the proposed new election date as opposed to some 12% at present, Justice Steven Majiedt expressed concerns over “the worrying trend of vaccination hesitancy”.

“It’s a concern spreading throughout the world and specifically in our country,” he said to Trengove. “We have no reason to believe that that is achievable by February 2022.”

Trengove accepted “things may go wrong”, but, he said, it was currently “the best prediction”.

Justice Leona Theron suggested it appeared the commission was trying to amend the constitution through the back door.

Trengove vehemently denied this, insisting the commission was already lawfully permitted to postpone the elections in the current circumstances.

He further argued this would not be an “appropriate” response.

“It would on the contrary set a very undemocratic and undesirable precedent if it were to be established that a major party may entrench itself in office by amending the constitution to extend its terms of office,” he said.

Trengove argued the commission could either organise elections in line with the deadline but without being able to ensure they were free, fair and safe – as required by the constitution – or that they would have to be pushed back.

The former, he said, came at “both a legal and a political price”.

“Firstly, the elections will be vulnerable to being overturned and, in fact, if not free and fair, they are unconstitutional and must be overturned,” he said.

“But it will also have social and political consequences if they are shown not to be free and fair. They would not have political credit and society will not respect the outcome.”

Close to a dozen different political parties and nonprofit organisations have joined this case.

Some, including the ANC, the Economic Freedom Fighters and the Inkatha Freedom Party, support the IEC’s case.

Others, including the Democratic Alliance, the Council for the Advancement of the South African Constitution and Freedom Under Law, are opposing it.

Advocate Ismail Jamie, for Western Cape local government MEC Anton Bredell, who is also opposing the application, yesterday argued that a decision on whether the elections were free, fair and safe could only be made after the fact.

“Then the court would be able to determine that on objectively determinable facts. It is highly likely – if not inevitable – certain rights will be affected negatively because we are in a pandemic. But those rights are affected whether we vote or not. Those rights are being affected every day. We can’t go to places of worship, we can’t gather, we can’t go to stadiums.

“And we don’t know how long it’s going to last. But we have to adapt and one of the things that we have to adapt is our democratic system.”

Judgment was reserved. –