ConCourt hears IEC application to defer elections to February 2022

The commission is applying for the court to allow them to have the election in February next year. 

The application was heard virtually on Friday. 

This comes after a commission by retired deputy chief justice Dikgang Moseneke recommended that the elections be differed due to the Covid-19 pandemic. 

The deadline for elections, according to the Constitution, is November 1. 

 The IEC says meeting the deadline is possible, however, the elections will be unconstitutional. 

"Can you imagine if we were to force the IEC to hold the election, but it would have to compromise on the freeness and fairness of the election? It would be unconstitutional, open to challenge, and would not have political credibility,” said advocate Wim Trengrove 

“We accept that the constitution does set a deadline, but it also requires the election to be free and fair and it also requires that the election be safe," he noted.

Trengrove says while the IEC can conduct elections by November 1, there won't be enough time for voter registration weekends and political parties will not have enough time to compile their nominations and campaign.

Constitutional amendment 

He said there was no need for a constitutional amendment for ConCourt to allow the IEC to defer elections to February 22. 

"Section 159 (3) of the Constitution, as well as section 26 (1A) of the municipal structures, does provide for the possibility that elections might not be held in time. Because both say that the term of office of municipal council continues until its successor is duly elected and declared, so it does cater for the possibility that mishaps may happen as a result of which the deadline is not made," he said.

"The commission found itself in a dilemma that it cannot organise a constitutionally compliant election. It can either do an election by the deadline, but it won't be free, fair, and safe. Or it can do a free, fair, and safe election but it cannot do so by the deadline,” he contended.

On Covid-19

Justices wanted to know if the IEC was certain that by February 2022 it would be safe to hold elections.

Trengrove said the IEC is not certain that the Covid-19 situation would be permissible for elections by then, but rely on the prediction that looks at the number of vaccinations by then. 

"We have little doubt that the pandemic would still be there, (but) the prognoses is that the level of vaccination will be at 70%. In fact, we should be going through a trough according to Professor Karim between September and October and there will be time to take a lot of the preparatory steps necessary to be taken for February elections," he said.

"There might again be a peak around February, but at least we will have significantly higher levels of vaccinations. Justice Madondo, nothing is certain, but the commission and Justice Moseneke's best prediction is that it would be in a better position to hold lawful elections at that time," said Trengrove 

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