IRR returns to ConCourt to help #SaveTheVote

15 September 2021 

The Institute of Race Relations (IRR) is filing papers once again as a friend of the court, amicus curiae, to oppose what it regards as an existential threat to credible national municipal elections this year.

The Constitutional Court has been asked to reconsider if it is “reasonably necessary” for political parties to have “a second bite at the cherry”, meaning a new chance to nominate candidates after the deadline. The IRR believes offering a “second bite” is unreasonable, unnecessary, and unfair.

In contrast, the Electoral Commission (IEC) says it is “reasonably necessary” to grant all parties another go. In public the IEC tried to justify this by an “age of majority” argument, that young would-be councillors are blocked from running for office unless the entire candidate process is reopened. At times this line of “reason” has been uncritically repeated.

However, when the ConCourt instructed the IEC to explain itself in writing by Monday, 13 September, the IEC did not repeat that “reason” whatsoever. Instead, the IEC produced sixty pages of argument that contained no mention whatsoever of the “age of majority” nonsense.

The IRR has repeatedly drawn attention to alarming discrepancies between what officials involved in this election have said to the media and what they are prepared to say under oath. The pattern of seeming to try to hoodwink the public with legalese that cannot stand up in court continues.

The ANC has argued that it would be unfair to deprive it of a “second bite” since the alternative is for it to lose control of “13 local municipalities” on a “technicality”, specifically a failure to meet a “deadline”.

Moreover, the IEC told the ConCourt that it generally has the power to burn candidate deadlines after the fact for its own reasons and that it may not be “second-guessed”. If the court agreed, against actual precedent, that would establish a new order democracy cannot survive.

That may be why the IEC’s primary argument was that the ConCourt specifically gave the IEC the special power in this case to burn the candidate deadline, if it so chose. The IEC bizarrely avers the court did so without consideration.

The IEC says the ConCourt’s order gave it the power to determine “that candidate nominations should be re-opened because voter registration has been re-opened”, adding that “the Court’s order cannot be interpreted [in any other way] because the issue was not considered by the Court”.

Did the ConCourt really give away this extraordinary power without consideration? Clearly not. The court was asked to consider the question of whether reopening voter registration necessitated reopening candidate nominations and its order reopened the former while shutting down the EFF’s application to reopen the latter. The court could have dismissed the EFF more generally if it wanted to leave the door open to the IEC’s “determination” of constitutional necessity, but did not.

The IEC fails in law but also in practice, having earlier told the ConCourt there was no objective way to reopen candidate nominations without compromising the “verification” protections it was recently compelled to introduce, but now the IEC says it has become “herculean” in its abilities and can do it.

This does not quite explain how the “impossible” transformed into a reliable safeguard, almost overnight, or whether the IEC has made misrepresentations to both the public and the court too.

Said IRR head of campaigns Gabriel Crouse: “The IEC’s shenanigans aside, the ultimate question is whether a second bite at the cherry is democratically fair. Each would-be politician could have registered online or in person before August 3, as the law required, knowing that those who failed would disqualify themselves. That was fair in the legal sense.

“But deadlines are not nice, they terminate impersonally, and feelings get hurt at their cold passing. For those who think fairness means getting whatever one wants, it will be ‘reasonably necessary’ to burn any deadline one misses, until next time.

“Which of these two counts as real “fairness”? You don’t have to be a lawyer to know the answer.”

Issued by Gabriel Crouse, IRR Head of Campaigns, 15 September 2021