The Constitutional Court has dismissed, without costs, the Democratic Alliance’s urgent application to set aside the Electoral Commission’s (IEC) decision to reopen candidate registrations for the upcoming local government elections. 

The court handed down a unanimous judgement without an oral hearing on the morning of 20 September 2021. This comes as the IEC opens the candidate nomination process for today and Tuesday 21 September, which follows the national voter registration drive held over the weekend. 

This is a lifeline for parties such as the ANC who failed to meet the initial candidate cut-off date of 23 August. The party had not submitted party lists and ward candidate nominations in 20 municipalities and 598 wards.  

“In 13 of these municipalities, the ANC has comfortable majorities in the municipal councils, and has enjoyed these majorities in 11 of them for many years,” the ConCourt judgement read. 

The debacle began when the IEC amended the election timetable to extend the date for submission of party lists and ward candidates after the ConCourt dismissed the Commission’s application to postpone elections on 3 September. 

The DA then approached the apex court to have the extension set aside and declared unconstitutional, unlawful and invalid. 

The DA argued that the 3 September judgement allowed amendments to the timetable that were “reasonably necessary” such as the voter registration weekend. Candidate nominations did not fall into that category in the party’s view. 

The DA’s application was supported by the Inkatha Freedom Party, the Economic Freedom Fighters, the African Transformation Movement and the South African Institute of Race Relations. 

In opposition was the Electoral Commission (IEC), Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma, the ANC and Freedom Under Law. 

Although the court held that the extension of candidate nominations was not “reasonably necessary” as envisioned by the 3 September judgement, based on section 11(2) of the Municipal Electoral Act, and the fact that the minister’s initial proclamation of an election date was set aside, the Commission had five additional days to work within the election timetable. 

Over the weekend the apex court handed down the reasons for the order issued on 3 September. The judgement was not unanimous. 

The first judgement penned by Acting Chief Justice, Raymond Zondo, held that the court does have the power to order that an election be held after the 90 day period referred to in section 159 of the Constitution but this would lead to a “constitutional crisis”. 

It also held that the Covid-19 pandemic was not a sufficient argument that having elections in October would not be free and fair. It was also critical of the Commission’s failure to hold a voter registration weekend before the Minister of Cogta proclaimed the election date, as well as the IEC’s failure to inform the public that a voter registration weekend would not be held “despite the fact that all national elections over the past 27 years were preceded by one or two voter registration weekends”. 

The ANC released a statement welcoming the Con Court’s decision. The party said the ruling “vindicates” their position that the right of citizens to vote is inextricably linked to their right to stand for public office.
The party expressed its readiness to register all its candidates by the Tuesday deadline.

The Democratic Alliance accepted the ruling by the ConCourt but will be watching the IEC “like hawks”. Speaking during a press conference, party leader John Steenhuisen said the party remains of the view that the decision to reopen the candidate nomination process was a “blatant attempt” by the IEC to provide “election favour to the ANC”.

“We note that the Constitutional Court did not draw a final conclusion on whether the IEC had an ulterior motive in reopening the candidate nomination process on the basis of the papers submitted to the court.

The judgment, however, allows the party to challenge the decision at a later stage if they have evidence.

When asked if she regretted her accusations towards the Constitutional Court of leaking information to the ANC prior to the 3 September judgement being handed down, DA Federal Council Chair Helen Zille instead questioned why no one had given answers as to why the ANC withdrew its case to reopen nominations, hours after submitting it to the Electoral Court.

“Obviously I haven’t got any proof as to how they got the information that the Constitutional Court would allow a delay, but they must have had a very astute idea of that.”

She asserted that things turned out “exactly as she predicted” and therefore journalists should engage in introspection over the matter and avoid the “easy default” of criticising her.

Steenhuisen said the party was contesting elections despite beliefs that the IEC’s credibility was compromised and had shortcomings in its ability to run free and fair elections. The party is launching its manifesto on 25 September.

Nkosazana Dlamini Zuma will proclaim the election date, scheduled for 1 November, on 20 September. DM 

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