The Independent Electoral Commission of SA (IEC) will now approach the courts to seek permission to postpone elections and the term of municipal councils to next year after the inquiry into the feasibility of holding free and fair municipal elections recommended that they be delayed until February.
Former deputy chief justice Dikgang Moseneke, who was commissioned by the IEC to lead the probe, said the inquiry had concluded that it was not reasonably possible that the local government elections scheduled for Oct. 27 would be free and fair due to the threat imposed by the pandemic and the current restrictions on political activities and planning.
Former IEC vice-chairperson Terry Tselane, who is among those who advocated for the postponement, said the commission spends about R400m to organise a national voter registration weekend which the commission said was scheduled to take place next week.
“What is important is that the political parties and independent candidates must be able to participate in elections fully and effectively. This means that they must be able to get their political message to their chosen electorate.
“If political and independent candidates are restricted in the ability to convey their messages to voters, this limits their rights to contest elections, to campaign, to freedom of expression and diminishes the freeness and fairness of the election,” Moseneke said.
He said the IEC had to immediately approach the courts to seek the postponement of the elections as the term of municipal councils ends next month.
“Should the commission accept and seek to implement the outcome of this inquiry, it is self-evident that it must approach, with deliberate speed, a court of competent jurisdiction to seek a just and equitable order to defer the local government elections to not later than month of February 2022 and on such terms the court may grant,” he said.
The last local government elections were held in August 2016 and the five-year term of office for municipal councils expires next month.
Elections should then be held within 90 days.
Section 159 of the constitution states, however, that while the term of municipal councils was limited to no more than five years, they were allowed to operate during the three months grace period.
“A municipal council, other than a council that has been dissolved after an intervention in terms of section 139, remains competent to function from the time it is dissolved or its term expires, until the newly elected council has been declared elected,” the constitution says.
While political parties opposed to the postponement had told the inquiry during hearings that it would be illegal to postpone the elections without amending the constitution, Moseneke said the commission had to seek a court order allowing the postponement, a move which would further extend the term of councils by three months.
IEC chairperson Glen Mashinini said the commission was planning to apply itself to the report before heading to court. “What we are required to do is to approach the appropriate court and place our case as we have done with the by-elections,” Mashinini said.
IEC spokesperson Kate Bapela said the commission would consult key stakeholders, including political parties. “The Commission is cognisant of the very limited time available to make a final decision. Next weekend, the Electoral Commission has scheduled a national voter registration weekend on July 31 and August 1.
“Thereafter on Aug. 2, the minister of co-operative governance and traditional affairs Dr Nkosazana Dlamini-Zuma is expected to proclaim the elections, which will trigger an 86-day election timetable,” Bapela said.
Council for the Advancement of the South African constitution executive secretary Lawson Naidoo said it was now up to the courts to decide if a constitutional amendment was necessary to allow the municipal councils to operate beyond what was permitted by the constitution.
“The report points out that there are unprecedented times and if the courts are amenable to grant this, there would be no constitutional problem with it. The IEC will now... put this to the Test,” Naidoo said.
The DA and One SA Movement have expressed opposition to the report, saying it was prolonging the stay of parties at the helm of municipalities when their mandate had expired.
IFP chief whip Narend Singh welcomed the report even though the party had advocated for the postponement to be pushed to May next year when the country would have likely secured herd immunity.
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