Last week’s George by-elections revealed the type of disputes we are likely to see next year.

Up for grabs were three seats in the council, after several members of the Good party defected to the DA. Good then accused the DA of registering voters in a ward outside of where they actually live, so they could vote illegally. Their headline claim was that 188 voters had been registered to one address.

Good went to the Electoral Court, arguing the by-elections could not go ahead. But the court allowed the polls to proceed.

Now the party has filed a formal dispute with the Electoral Commission of South Africa (IEC), calling for the by-elections to be rerun. This is an important area for Good, as these were the only wards it controlled.

It is highly likely that this kind of dispute will occur during next year’s elections, just on a much larger scale. While there will not be many disputes about voters’ addresses (this matters more in a local election than a national and provincial election) they will be more political and legal in nature.

Never have so many parties had so much to gain by undermining the legitimacy of the IEC. 

It is not just that the parties will want to claim to have won as many votes as possible to bolster their negotiating positions ahead of possible coalitions, it is also that there are now so many different political parties that have a real shot at winning provincial and national seats.

For the institution in the middle, the IEC, this means the pressure will come from every corner.

There is a long history of pressure.

Many years ago as polls were closing in 2009, the then DA leader Helen Zille claimed the IEC could “not run a bath”, let alone an election. In 2014 she asked aloud whether the IEC and the Electoral Court could be trusted.

Other claims have been made over the years, some with substance and some without.

In 2019, Mzwanele Manyi (then representing the African Transformation Movement) and Adil Nchabeleng, speaking on behalf of political parties, claimed that the elections had been “stolen”. They both had absolutely no evidence and both continue to play active roles in our politics and may well be back at the election results centre next year wearing different team jerseys.

While in the past it has often been smaller parties, or in at least one case the biggest opposition party, making such claims, next year the pressure may well come from the ANC, too.

Pressure from every corner would put the IEC in the toughest position it has ever been in.

Judiciary under fire

It should be remembered, though, that a major part of the dispute-resolution machinery during an election is the Electoral Court, making judges the final arbiters. Still, we can’t forget that some parties have actively tried to delegitimise the judiciary itself. 

For example, EFF leader Julius Malema once claimed, without any evidence, that judges were taking money from “white businesses”. And yet he sits on the Judicial Service Commission where he has played an active role in the selection of judges and was also a leading attacker of many of them.

If they have not already, other parties are likely to follow suit, intensifying the sense of how great the stakes are ahead of the polls. If they are able to undermine the legitimacy of the IEC and the Electoral Court to the point where their supporters refuse to accept the elections’ results, the consequences for our democracy will be dire.

The importance of this cannot be overemphasised.

In 1994, Steven Friedman was tasked by the IEC with developing a test for whether the elections were properly run. In the end, he and his team came to the conclusion that the only possible test was whether the losers of the election accepted the results.

We may struggle to pass this basic test this time.

The chair of the IEC in 1994, Judge Johann Kriegler, has also pointed out, many times, how important legitimacy is.

He’s made the point that an election can be technically perfect, but if the outcome is not seen as politically legitimate, people will not accept it.

Meanwhile, the IEC will have another, more technical problem.

Normally, the system under which elections are run is known well in advance — at least five years.

That is not the case this time.

Parliament has passed an act which is certainly unconstitutional and completely unfair to candidates standing as individuals. Already, several groups have started court action to overturn this injustice.

A political mess that is the new electoral law

This means that with possibly less than a year to go, the IEC does not know which election system it will have to implement.

There are very different permutations here — under one proposed system the ballot paper will be immensely long, which will provide technical problems of its own.

It is now possible that the judges allow next year’s elections to be held under the old system, simply because there is no time to implement anything else.

This would probably see the IEC breathing a sigh of relief. But it would also be a victory for the political parties currently in Parliament, many of whom allowed this delay to occur with the cynical aim of creating this situation.

It may well be worth asking representatives of these parties how compatible their behaviour is with democracy.

While the IEC is now in this possibly impossible position, and various political parties will make different and complicated claims with much emotion, it is important to remember that the very structure of our electoral system makes it almost impossible to steal an election.

It is just so transparent.

The backbone of the system is party agents. They are able to observe the registration of voters, the voting itself, the counting and part of the tabulation. Independent auditors then examine the results as well. Party representatives meet with IEC officials in discussions that all parties can join.

Thus, it is only if politicians are able to change this that the legitimacy of elections can really be questioned.

It is not yet clear how the by-election disputes in George will be resolved. But Good is unlikely to give up its claims easily, while the DA and the Patriotic Alliance will defend their gains. Claims may well be made about the Electoral Court and the IEC. 

These claims could reverberate much more loudly next year. Only time will tell whether our democracy is strong enough to sustain that wave of attacks. DM