IEC eyes Constitutional Court for finality on postponement

The Electoral Commission of SA (IEC) says approaching the Constitutional Court to grant it approval to defer the municipal elections would ensure that it avoids any potential legal action against its decision to postpone the polls.

The IEC’s deputy CEO, Masego Sheburi, says though they are still seeking legal opinion on the matter and have yet to file papers to the appropriate court in line with the recommendations of the Moseneke report, approaching the Constitutional Court would ensure finality and clarity.

Approaching the court directly is, however, risky because it could question the IEC’s decision to not approach a lower court or the electoral court, which has jurisdiction over electoral matters, Sheburi said.

During the previous two waves of the pandemic, the electoral commission approached the electoral court eight times seeking approval to defer the scheduled by-elections due to the health risks posed by Covid-19 and the limitations on gatherings. Approval from the court was granted on each occasion.

The IEC proceeded with conducting some by-elections following the court’s approval and the easing of lockdown restrictions. This time around, Sheburi said the approval sought by the

IEC to defer the municipal polls beyond the constitutional fiveyear limit placed on municipal councils was a “weighty matter” that could be beyond the scope of the electoral court.

The IEC’s decision to postpone the local government elections, initially scheduled for October, is in line with the Moseneke report that recommended the polls be deferred to no later than the end of February next year when there is likely to be a high level of community immunity due to increased vaccinations against Covid-19.

The report of the “Inquiry into Ensuring Free and Fair Elections during Covid-19”, penned by former deputy chief justice Dikgang Moseneke, is not binding on the IEC and could face opposition from political parties who have notified the IEC of their support for conducting the elections under Covid-19 conditions.

The opposition to the IEC’s decision from political parties will, however, only be known once the electoral body has filed its court papers, Sheburi said.

Amending the constitution to extend the term for municipal councils beyond five years would be the alternative route to ensure clarity on the matter. But a constitutional amendment would require 75% majority approval in parliament and from at least six provinces in the National Council of Provinces, Sheburi said.

The IEC will also approach the Treasury about the financial implications of postponing the polls. The amount required will only be determined once the IEC has taken account of all the recommendations of the Moseneke report.