CONSTITUTIONAL OBLIGATIONS
Date for municipal elections gazetted while IEC approaches ConCourt for deferment
On Tuesday, Cogta Minister Nkosazana Dlamini Zuma proclaimed 27 October 2021 as the date for municipal elections, though this doesn’t mean that voting will go ahead on that date — the IEC is approaching the Constitutional Court this week for a postponement of the election.
The Department of Cooperative Governance and Traditional Affairs (Cogta) has gazetted the date for the 2021 local government elections.
This does not mean voting will go ahead as scheduled on 27 October, but will allow the Electoral Commission of SA (IEC) to approach the Constitutional Court for a deferment of the elections.
Cogta Minister Nkosazana Dlamini Zuma said on Tuesday that after seeking legal opinion, the ministry had been advised to gazette the date to comply with its statutory and constitutional obligations.
“The Constitution, section 159 read with the Municipal Structures Act prescribes that at the end of a five-year term of local government, elections must be held within a period of 90 days. Consequently, on the 21st of April President Ramaphosa announced that the local government elections will take place on 27 October this year,” said Dlamini-Zuma.
The IEC cannot seek a deferment if a date for elections has not been proclaimed, nor is Cogta empowered to postpone elections, the minister explained.
On 23 July, the commission announced it would approach either the Electoral Court or the Constitutional Court to seek an order postponing the municipal elections after an inquiry chaired by former Deputy Chief Justice Dikgang Moseneke found that, because of the Covid-19 pandemic, conditions were not conducive to holding free and fair elections.
The report recommended that elections should be delayed to no later than February 2022 “and on such terms the court may grant”.
Dlamini Zuma said the commission would make its urgent application by the end of this week.
“It is therefore clear that we still must go ahead to call the elections and gazette the date. This will also enable the IEC to go ahead and file papers in the Constitutional Court to postpone an election that has been called.”
Gazetting the election date also means the voters’ roll will be sealed. Voter registration will be reopened should the Constitutional Court grant a deferment.
When asked by journalists if another remedy existed should the courts deny the request for postponement, the minister said there was probably no other recourse but to hold the election.
“There is no legislation that gives the government, Cogta or the IEC the right to postpone the elections. If there was, we would have postponed them without going to court.”
The IEC released a statement saying Dlamini Zuma’s proclamation followed a “legally sanctioned consultation process between the commission and the minister”.
The immediate consequence of the proclamation is that the voters’ roll for these elections closed at midnight on Tuesday.
“We’ve never faced this situation since democracy, so all the issues that are being raised are intricacies that arise from this unprecedented situation.
“The key for now is what the Constitutional Court will say.” DM
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