ConCourt election judgment sets worrying precedent – IRR

20 September 2021

The Constitutional Court has judged that the Electoral Commission’s (IEC) general powers include the power to cancel a deadline on its electoral timetable that has already passed. In particular, the IEC’s decision on September 6 to cancel the candidate nominations deadline of August 23 has been allowed to stand.

The IRR opposed the IEC’s decision and is naturally disappointed in the ConCourt’s judgment. However, the ConCourt found, as the IRR argued, that it was not “reasonably necessary” for the IEC to cancel the August 23 deadline in terms of the court’s order, and that the election had not been “postponed”.

In addition the ConCout found, as the IRR was the first to argue, that Cogta Minister Nkosazana Dlamini-Zuma’s election “proclamation” was “irrational”.

On these points, and more, the ConCourt’s judgment vindicated submissions and arguments made by the IRR. Moreover, the ConCourt offered a rebuke to Freedom Under Law (FUL), the ANC, and other parties who said that those who opposed the IEC’s decision were simply exercising partisan spite against the ANC.

Moreover, the ConCourt did not find that affected parties should simply trust the IEC. Rather, the ConCourt explicitly kept the door open to later challenges against the IEC, on the allegation of bias.

Whereas the ConCourt’s judgment vindicated the IRR’s submission in so many ways, the major disagreement, with all respect, was on the nature of the IEC’s general powers.

The ConCourt’s interpretation of the Municipal Electoral Act (MEA) finds it within in the IEC’s discretion to cancel deadlines that have already passed if the IEC “considers” that “necessary for a free and fair election”.

By contrast the IRR argued that the MEA clearly blocks the IEC from changing a deadline once it has passed. What follows are legal details that will affect every election until the MEA is amended.

At present Section 11(3) of the MEA reads: “Any act required to be performed in terms of [the MEA] must be performed by no later than a date and time stated in the election timetable”.

This seems to mean, for example, that if the timetable says August 23 is the deadline for candidate nominations the IEC cannot “act” to meet that deadline after August 23, unless the IEC changed that particular deadline by no later than August 23.

No exception seems to be made for the act of changing this deadline on September 6, which is “later than” the “date and time stated in the election timetable” of that timetable item.

In other words the IRR’s submission amounted to the claim that once a particular timetable item passes then a guillotine has fallen, through Section 11(3), which cuts off the IEC’s discretionary powers from reaching backward in time.

On the ConCourt’s reading, however, Section 11(3) “does not constrain the [IEC]’s power of amendment”.

This finding opens a question mark behind Section 11(3), which may turn out to be almost meaningless. The IRR respectfully notes, however, that this judgment was given in the name of “The Court”, meaning that all justices and acting justices involved are in whole-hearted agreement.

Said IRR head of campaigns Gabriel Crouse: “For those, like me, who thought that the law stopped the IEC from changing deadlines that have passed willy-nilly we have learned today that we are wrong. This happens. Where the law leaves a gap for abuse, vigilance must double, and the IEC cannot complain if it is subjected to the most intense scrutiny in this cycle. In the distant future an amendment to the MEA may be necessary to constrain the IEC from amending deadlines after they have passed.”

Issued by Gabriel Crouse, IRR Head of Campaigns, 20 September 2021