The Constitutional Court (Concourt) of South Africa. File picture: African News Agency Archives
The Constitutional Court (Concourt) of South Africa. File picture: African News Agency Archives

Elections: The Concourt is caught between a rock and hard place

By Sipho Seepe Time of article published Sep 8, 2021

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OPINION: The failure by the Concourt to provide greater clarity in its dismissal of the IEC's application to have local municipal elections postponed has done the country a disfavour, writes Sipho Seepe.

Courts exist to settle disputes. They are expected to do so in a clear and unambiguous manner. This helps to bring disputes to finality. We expect nothing less from the Constitutional Court. It is, after all, the final arbiter to the country’s seeming intractable disputes.

The failure by the Concourt to provide greater clarity in its dismissal of the IEC's application to have local municipal elections postponed until February next year has done the country a disfavour. The IEC's request was based on the report by the former deputy Chief Justice Dikgang Moseneke, which had recommended the postponement.

The report was based on representations from political parties and submissions by the country’s leading epidemiologists on how the Covid-19 pandemic may pan out. In its dismissal of the IEC’s application, the Concourt also set aside the original proclamation made by the Minister of Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma, declaring October 27, 2021, as the local government elections date arguing that it is unconstitutional.

Political parties like the ANC read the Concourt’s decision as opening a window of opportunity to register their candidates after missing the August 23 deadline set by the IEC.

The parties contend that the declaration of unconstitutionality of the minister's proclamation should inevitably result in all other administrative decisions pursuant to the proclamation being invalid. For them, this is tantamount to a total reset of the electoral timetable, including candidates’ registration.

The IEC has since adopted this reading of the Concourt. The IEC's interpretation brings relief that the ANC had earlier sought from the Electoral Court. The ANC argued that its application, which has since been withdrawn, was meant “to protect the rights of hundreds of thousands of citizens who will be deprived of the right to vote for a candidate of their choice as a result of the inability of the party of their choice to register its candidates.”

The party further contended that “as a majority party in government at national, provincial and local level, and a leader of society, the ANC has a broader responsibility to protect, strengthen and deepen our system of multiparty democracy, a system which constitutes one of the foundational provisions of our Constitution.”

Others parties like the Democratic Alliance read the Concourt ruling differently. Their interpretation is that it effectively shut the door of reopening the candidates’ registration. The registration is limited only to the registration of voters. In doing so, they rely on the Concourt text ordering the IEC to “determine whether it is practically possible to hold a voter registration weekend with a view to registering new voters and changing registered voters’ particulars on the national voters’ roll in time for local government elections". No mention is made of candidates, they contend.

The Concourt’s order, which seemingly invites different interpretations, opens the possibility of the IEC being embroiled in litigation. The Democratic Alliance is on record that it intends to challenge the IEC’s interpretation.

It is inconceivable that the Concourt was unaware of the broader implication of its decision. After all, this is the same Court that used statements allegedly made by the former president Jacob Zuma in the public domain to rule against him. It cannot be unaware that the IEC’s application was much broader than a decision to postpone the elections or not.

The Concourt could have been explicit in its determination on whether its decision includes the reopening of the registration of electoral candidates. In doing so, it would have had to factor in a precedent that had been set.

In 2016, the Electoral Court endorsed the IEC’s decision to disqualify the party from participating in the elections after it failed to pay the required fees by the ‪June 2 deadline.

Until such time that the Concourt provides clarity, the IEC’s interpretation will continue to be read as an attempt to bail out parties that had missed the deadline for candidates’ registration. Undoubtedly, had the IEC arrived at a different interpretation, the ANC would have missed out badly.

The Concourt’s failure to be unambiguous in its decision comes at a time when the trust in the judiciary is waning. According to a recent survey by Afro barometer, up to 32% of South Africans believe that that the members of the judiciary are involved in corruption.

There are just too many inconsistencies in how the courts have ruled in favour and against certain individuals. One minute, transparency the courts have argued for is sacrosanct in a democracy, the next minute, the very courts argue that South Africans do not have a right to know about shenanigans involving other politicians.

The same hypocrisy can be found in the media and foundations that masquerade as the self-appointed guardians of South Africa’s democracy.

* Seepe is a political analyst and deputy vice-chancellor of institutional support at the University of Zululand.

** The views expressed here are not necessarily those of IOL.

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