IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No: 245/21
In the application of:
DEMOCRATIC ALLIANCE - Third Intervening Party
In the application of:
ELECTORAL COMMISSION OF SOUTH AFRICA - Applicant
and
MINISTER OF COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS - First Respondent
MEC RESPONSIBLE FOR LOCAL GOVERNMENT IN THE PROVINCIAL GOVERNMENT OF THE EASTERN CAPE - Second Respondent
MEC RESPONSIBLE FOR LOCAL GOVERNMENT IN THE PROVINCIAL GOVERNMENT OF THE FREE STATE - Third Respondent
MEC RESPONSIBLE FOR LOCAL GOVERNMENT IN THE PROVINCIAL GOVERNMENT OF GAUTENG - Fourth Respondent
MEC RESPONSIBLE FOR LOCAL GOVERNMENT IN THE PROVINCIAL GOVERNMENT OF KWAZULU- NATAL - Fifth Respondent
MEC RESPONSIBLE FOR LOCAL GOVERNMENT IN THE PROVINCIAL GOVERNMENT OF LIMPOPO - Sixth Respondent
MEC RESPONSIBLE FOR LOCAL GOVERNMENT IN THE PROVINCIAL GOVERNMENT OF MPUMALANGA - Seventh Respondent
MEC RESPONSIBLE FOR LOCAL GOVERNMENT IN THE PROVINCIAL GOVERNMENT OF THE NORTHERN CAPE - Eighth Resndent
MEC RESPONSIBLE FOR LOCAL GOVERNMENT IN THE PROVINCIAL GOVERNMENT OF THE NORTH- WEST - Ninth Respondent
MEC RESPONSIBLE FOR LOCAL GOVERNMENT IN THE PROVINCIAL GOVERNMENT OF THE WESTERN CAPE - Tenth Respondent
SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION - Eleventh Respondent
and
COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION - First Amicus Curiae
FREEDOM UNDER LAW (RF) NPC - Second Amicus Curiae
SOUTH AFRICAN INSTITUTE OF RACE RELATIONS - Third Amicus Curiae
AFRIFORUM NPC - Fourth Amicus Curiae
FREEDOM UNDER LAW’S HEADS OF ARGUMENT
INTRODUCTION
1. Freedom Under Law (RF) NPC (“FUL”) is a public interest organisation whose objectives are the promotion of democracy and the advancement of the rule of law and the principle of legality.
2. FUL was admitted as the second amicus curiae in the application by the Electoral Commission in this Court under case number 245/21. FUL files these submissions in the same capacity, in relation to the follow-on urgent application by the Democratic Alliance (“DA”) (also under case number 245/21) to declare unlawful, review and set aside the Electoral Commission’s decision to reopen the candidate nomination process for the 2021 local government elections, pursuant to this Court’s order of 3 September 2021. FUL does so pursuant to the directive issued by the Court on 9 September 2021.
3. FUL makes three submissions:
3.1. First, it is not in the interests of justice for this Court to determine this application, which is premature, and constitutes what is sometimes colloquially referred to as “lawfare” – the use of law as a replacement for political contestation;1
3.2. Secondly, the IEC’s implementation of this Court’s Order of 3 September 2021 is lawful and rational, and, despite all protestations by opposing political parties, the African National Congress (“ANC”) is simply the fortunate recipient of the lifeline that flows as a “reasonably necessary” consequence of the relief granted; and
3.3. Thirdly, the DA’s proposed interpretation of the order is unworkable. The suggestion that only “new” voters could be added to the candidate list2 is constitutionally untenable and contrary to the statutory regime.
BACKGROUND
4. In the original application by the Electoral Commission, this Court was placed under significant pressure to make a decision in relation to a matter of extreme public importance – the local government elections of 2021 – on the most urgent of timeframes.
5. This Court was required to balance the rights and interests of the rule of law, political rights, the rights to health, and the right of association. It did so through the issuing of its order on 3 September 2021, which directed that the local government elections must be held on or before 1 November 2021. The order further set out a framework for this to happen, including the holding (if possible) of a voter registration weekend; and the publication by the Electoral Commission of “such amendments to the current [election] timetable as may be reasonably necessary”. This Court has not yet issued its judgment, setting out the reasons for the order issued.
6. The Electoral Commission complied with this order: on 6 September 2021 it determined that it was possible to hold a voter registration weekend, which would enable persons to register as new voters, or voters in different municipalities. However, the Electoral Commission recognised that these new voters or voters who had moved to a new ward would then be precluded from standing as candidates, unless candidate nominations were also reopened.3 Accordingly, the Electoral Commission determined that it was “reasonably necessary” to reopen candidate nominations and indicated publicly that it intended to amend the election timetable in this regard, following proclamation of the date of the election by the Minister. This proclamation has not yet occurred; nor has the amendment to the timetable been issued.
7. The DA seeks (in advance) to declare unlawful, review and set aside the Electoral Commission’s proposed amendment to the timetable insofar as it relates to the reopening of candidate nominations.
8. The elephant in the room in this case is the fact that the ANC, through its own internal shortcomings, failed to register candidates in 598 wards and 20 municipalities prior to the original candidate nomination cut-off date of 3 August 2021.4 Consequently, absent a reopening of the candidate list, the ANC will be unable to contest the elections in these wards and municipalities. If the ANC candidates are excluded from the election, the opposing political parties (the DA, IFP and EFF) stand to gain significantly in relation to these municipalities.
LAWFARE
9. The tone of the affidavits of the political parties before this Court leaves much to be desired. Rather than making submissions in the furtherance of the constitutional requirement of free and fair elections and section 19 rights, the political parties have through their affidavits engaged in inappropriate political cross-fire, where each party aims to further its own political goals.
10. While lawfare5 may be a good thing when it is utilised in furtherance of the rule of law and to advance constitutionalism; it is bad when litigation becomes the site of political contestation with politicians trying to co-opt the judiciary to do their bidding. In those circumstances, courts find themselves in the front lines and must, under considerable pressure, construct a working theory to guide their institution as to whether to accede or refuse the demands for what often appears to be heavy political lifting.6
11. The DA’s approach is, regrettably, characteristic of this form of lawfare. The DA accuses the Electoral Commission of having compromised its independence, as well as that of the election, by its determination to re-open candidate nominations.7 Moreover, the DA’s Federal Chairperson, Helen Zille, has in the media made allegations that the ANC’s withdrawal of its application before the Electoral Court “indicates that they have been tipped off that the IEC’s application to postpone the election was successful. If information is leaking from the Concourt to the ANC, it is nothing short of an Constitutional crisis.”8
This statement – insinuating that this Court is leaking information to the ANC – is a scandalous attack on the independence of the judiciary. Yet just a few days later, the DA approached this very Court in a mad scramble to seek the Court’s assistance to set aside the Electoral Commission’s decision and does not deal with the ANC’s complaint regarding the conduct of its Federal Chairperson other than to state that it is irrelevant to the adjudication of this case9.
12. Then, in its founding affidavit, rather than recognising the extreme pressure that this Court has already been placed under in determining the Electoral Commission’s original application, and that this Court is not well-suited to the determination of urgent applications of this magnitude, the DA has once again approached this Court for urgent relief as of right, because it is unhappy with the Electoral Commission’s implementation of the order of 3 September 2021. As a result of the fact that this Court has not yet handed down its judgment, the DA’s application is based on conjecture and speculation as to what the order means.
13. On the part of the ANC, given the party’s failures in significant respects to register its candidates for the upcoming election, and given that the Covid-19 crisis and the order of 3 September 2021 has thrown an unexpected lifeline to the ANC which would not otherwise have been extended, one would have expected the ANC to adopt an approach before this Court characterised by humility. Yet its affidavit displays unfortunate arrogance, and the ANC seeks to score further political points by seeking punitive costs from the DA. The ANC asserts that the candidate nomination list must be re-opened, because otherwise the ANC will be unable to contest 598 wards and 20 municipalities where it failed to register its candidates.10 The ANC in its affidavit takes no responsibility for the fact that it was its own failure to register its candidates prior to the original 3 August cut-off date which gave rise to this unfortunate state of affairs, and not the conduct of the Electoral Commission, or indeed any other political party.
14. The conduct of the other political parties that are before this Court is hardly any better, and both the IFP and the EFF have displayed unfortunate political opportunism and brought the Electoral Commission into disrepute:
14.1. The IFP accuses the Electoral Commission of engaging in “conduct aimed at favouring and benefitting the ANC”11 and states that there is “perception bias” around the Electoral Commission’s decisions.12
14.2. The EFF insinuates bias on the basis that the Electoral Commission opposed the relief the EFF sought in the original application,13 and despite having argued for the reopening of the candidate list in the original application, now vigorously opposes it.
15. In short, this Court is being used as a political boxing ring, with each political party deriding the others, as well as the Electoral Commission,14 and attempting to use the Court for its own political gains. This approach falls to be deprecated, and this Court should be treated with the respect and deference that it deserves, rather than an arena for lawfare.15
16. FUL submits that, in these circumstances, the DA’s extremely urgent approach to this Court seeking an order relating to the interpretation of the Order of 3 September 2021 is impermissible, and that it would not be in the interests of this Court to entertain the application.
PREMATURITY
17. There is a further reason why this Court should decline to hear this application, namely that it is premature.
18. An order of Court is to be interpreted in the light of the reasons for the order as reflected in the judgment.16 In Electoral Commission v Mhlophe,17 this Court explained:
[33] On interpreting court orders, authority tells us:
“The basic principles applicable to construing documents also apply to the construction of a court’s judgment or order: the court’s intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual, well-known rules [A]s in the case of
a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. If, on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it.”
19. On 3 September 2021, this Court issued an order in relation to the Electoral Commission’s application, and has indicated that its judgment and reasons will be handed down in due course.
20. That judgment will explain and provide answers to a number of issues that have been raised in these proceedings, including:
20.1. the basis on which the provision for “reasonably necessary” amendments to the election timetable was included in the order;
20.2. whether this Court envisaged amendments being made in relation to candidate lists; and
20.3. the basis for the dismissal of the EFF’s relief.
21. The Democratic Alliance is not prepared to wait for the judgment to be handed down in order to assist in the interpretation of the order. It insists on approaching this Court for urgent relief, based on its speculation as to the basis and reasons for the order.
22. This application has already generated almost 600 pages and is, respectfully, abusive of this Court’s time and resources. The DA’s rush back to this Court was, in the circumstances, premature, and the proper approach would have been to await this Court’s judgment – given that it can be accepted that this Court is aware of the exigencies requiring the judgment to be delivered as soon as possible – and given too that the Electoral Commission has not yet taken a final decision in relation to the amendment to the timetable, and cannot do so until the election is proclaimed.
23. The prematurity of this application further militates granting the application in the interests of justice.
THE ELECTORAL COMMISSION’S AMENDMENT OF THE TIMETABLE WAS LAWFUL
24. Section 158(1) of the Constitution guarantees the right of all citizens who are qualified to vote for a Municipal Council to stand for election to be a member of that Council.
25. The Local Government: Municipal Electoral Act 27 of 2000 (“Municipal Electoral Act”) requires that both the nominated candidate and the nominator of a ward councillor must be registered to vote:
25.1. In terms of section 14 of the Municipal Electoral Act, any person who is not registered as a voter on a particular municipality’s segment of the voters’ roll must be removed from the party list for that municipality; and
25.2. In terms of section 16, a candidate may be nominated either by a political party or by “a person who is registered as a voter on that municipality’s segment of the voters’ roll”.
26. Section 11(2) of the Municipal Electoral Act empowers the Electoral Commission to amend the election timetable in two circumstances:
26.1. if it considers the amendment necessary for a free and fair election;18 or
26.2. if the voting day is postponed.19
27. The Electoral Commission indicates in its affidavit before this Court that it determined that both factors are or will become present in relation to the local government elections, and that the Commission is accordingly empowered to amend the timetable, including to change the cut-off date for nominations.20
28. The DA accepts that the statutory power under section 11(2) exists,21 but argues that it is not “reasonably necessary” to amend the candidate nomination period for the upcoming local government election.22
29. It is, respectfully, not for the DA, or any party before this Court, to dictate what is “reasonably necessary” in relation to the election timetable. This was a decision which this Court left to the Electoral Commission – the Chapter 9 Institution constitutionally entrusted to run free and fair elections in South Africa – and the Electoral Commission’s decision in this regard does not fall to be second-guessed by a political party, or by this Court.
30. The Electoral Commission has explained that, logically, the nomination of candidates can only occur after voter registration has closed (i.e. after proclamation of an election date). This is because only voters who have applied for registration by the proclamation date may nominate candidates or may be nominated as candidates for that election.
31. In the premises, by permitting persons to register to vote, or re-register if they have moved, it is “reasonably necessary” to provide a further opportunity for such persons to nominate candidates or be nominated as candidates or appear on any party list if they so wish. This logic is entirely consistent with the terms of section 11(2) of the Municipal Electoral Act; the terms of the Order; and the obligation on the Electoral Commission to promote free and fair elections.
THE DA’S APPROACH IS UNWORKABLE
32. The DA is constrained to admit that the order of 3 September 2021 permits the Electoral Commission to re-open candidate nominations, but it argues that such re-opening is limited only to those persons who were not registered to vote before the 3 August 2021 proclamation or those who were registered in the wrong municipality or ward.23
33. The Electoral Commission asserts that this interpretation is unsustainable because it is “antithetical to the duty of the Commission to facilitate participation in elections of both voters and candidates and to give effect to their cognate rights”.24 It also emphasises the impossibility of separating the “new” and “newly adjusted” registrations from the existing registrations.25
34. FUL submits that there are three further difficulties with the DA’s proposed solution:
34.1. First, it ignores the fact that registration on the voters roll is not only a requirement in respect of the candidate him/herself; but that registration is also a requirement to nominate a candidate. No provision is made in the DA’s proposed order for new candidates to be nominated by voters who are added to a particular segment of the roll after 3 August 2021;
34.2. Secondly, the implication of the DA’s argument is that, in relation to the 135 wards where the ANC failed to register candidates, the only persons who can stand as candidates are those who were either too young or too disinterested to register as voters for previous elections, or those who have only recently moved into the ward in question.
34.3. Thirdly, the DA’s approach is aimed at excluding candidates and voters from exercising their political rights. On the other hand, the Electoral Commission’s interpretation aims to facilitate allowing more persons to participate as candidates and allowing more voters to exercise their franchise. The Electoral Commission’s interpretation is one which better promotes the spirit, purport and objects of the Bill of Rights, and is to be preferred.26
CONCLUSION
35. The DA’s application (supported by the IFP and EFF) seeks to draw this Court into a political quagmire, by asking this Court to micro-manage the election and the consideration of what constitutes a “necessary amendment” to the election timetable. The effect would (as Freedom under Law warned in argument preceding the order) again be to infringe on the separation of powers and to saddle the Court with executive functions. This when, as members of the Court observed, it is the Court which is the potential final arbiter of legality issues arising from the election. It does so for politically expedient ends – namely to prevent the ANC candidates in 598 wards and 20 municipalities who were not registered as candidates prior to the original candidate nomination cut-off date of 3 August 2021 from competing in the election.
36. This Court has adopted a strongly deferential approach in regard to political rights, and has paid particular attention to separation of powers concerns when the Court steps into the political arena.27
37. In the circumstances, we submit that this Court should dismiss the application on the basis that it is not in the interests of justice for this Court to hear it.
Jeremy Gauntlett SC QC
Sarah Pudifin-Jones
Chambers, Cape Town and Durban 15 September 2021
Footnotes:
1 See Democratic Alliance v South African Broadcasting Corporation Soc Ltd and Others (12497/2014) [2015] ZAWCHC 182; [2016] 1 All SA 504 (WCC); 2016 (3) SA 468 (WCC) (27 November 2015) at para 4.
2 DA’s Affidavit, para 90.
3 Electoral Commission Affidavit, para 52; Indexed papers, p. 377.
4 ANC’s Affidavit, para 35.4.2, para 451.
5 We utilise the term “Lawfare” to mean the use of litigation to resolve contentious political disputes in spite of the existence of many non-curial constitutional safeguards. See Corder, H., & Hoexter, C. (2017). ‘Lawfare’ in South Africa and Its Effects on the Judiciary, African Journal of Legal Studies, 10(2-3), 105-126.
6 Economic Freedom Fighters and Others v Speaker of the National Assembly and Others (21471/2014) [2014] ZAWCHC 204 (23 December 2014) at para 6.
7 DA’s Founding Affidavit, para 111.
8 https://twitter.com/helenzille/status/1432952487720460290?lang=en
9 DA Replying Affidavit, para 59, p 527.
10 ANC’s Affidavit, para 35.4.2, para 451.
11 IFP’s Affidavit, para 33.
12 IFP’s Affidavit, para 19.
13 EFF Affidavit, para 38.
14 With the exception of the ANC, which does not criticise the Electoral Commission.
15 See Democratic Alliance v South African Broadcasting Corporation Soc Ltd and Others (12497/2014) [2015] ZAWCHC 182; [2016] 1 All SA 504 (WCC); 2016 (3) SA 468 (WCC) (27 November 2015) at para 4.
16 See Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC); 2015 (11) BCLR 1319 (CC) at para 29.
17 Electoral Commission v Mhlope and Others (CCT55/16) [2016] ZACC 15; 2016 (8) BCLR 987 (CC); 2016 (5) SA 1 (CC) (14 June 2016) at para 33.
18 Section 11(2)(a).
19 Section 11(2)(b).
20 Electoral Commission’s Answering Affidavit, para 32; Indexed papers, p. 369.
21 DA’s Replying Affidavit, paras 15-21, Indexed papers, p. 515-517.
22 The DA also argues that the Electoral Commission did not rely on the power in 11(2) at the time the decision was taken and cannot do so now, but this argument fails because the decision can only be made following promulgation of the election, which has not yet taken place.
23 DA Affidavit, para 90.
24 Electoral Commission’s Affidavit, para 101; Indexed papers, p. 392.
25 Electoral Commission’s Affidavit, para 103; Indexed papers, p. 393.
26 See also: Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC). Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2008 11 BCLR 1123 (CC) at para [47]:
“By the same token, where two conflicting interpretations of a statutory provision could both be said to be reflective of the relevant structural provisions of the Constitution as a whole, read with other relevant statutory provisions, the interpretation which better reflects those structural provisions should be adopted.”
27 African Christian Democratic Party and Others Intervening ; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179.
