Municipal elections – constitutional dilemma 

23 July 2021  

The civil rights organisation AfriForum has instructed its legal team to institute an investigation regarding the merits of an application that will be launched by the Independent Electoral Commission (IEC) to postpone the municipal elections and, if so, present legal arguments to the court. This follows after Glen Mashinini, Chairperson of the IEC, confirmed during a media conference that the commission will follow the recommendations of Judge Moseneke and approach a court with jurisdiction to postpone the 2021 municipal elections.     

“Even though Judge Moseneke recommends that the election must be postponed, he doesn’t make any finding if it is indeed possible according to the Constitution. The problem is, however, if the Constitutional Court or the Electoral Court will consider an application that actually requires constitutional amendment. This application can have a big impact on future judicature,” says Morné Mostert, AfriForum’s Manager of Local Government Affairs.       

Judge Moseneke mentions in his report that there isn’t unanimity regarding whether the election must take place. The report focuses on whether it is possible for the IEC to hold a free and fair election on 27 October 2021. The report considers a series of factors that include the following:    

The ability of political parties to launch their election campaigns.   

What the predictions of medical experts will be in respect of the COVID-19 cases during the fourth week of October.  

The capacity of the health sector.  

Community immunity and vaccinations.  

The possible impact if the election is postponed until February 2022.   

The IEC’s possible remedies regarding the situation.  

The impact on the municipal budget year.  

The Constitution and the Local Government: Municipal Structures Act agree that the municipal counsels’ term cannot extend longer than five years and that the IEC must hold an election within 90 days after the expiration of the five-year term. It appears that the Constitution’s provisions about this are mandatory and that there is not much – if any – margin for a court to sanction a postponement of the election to 1 November 2021.   

This case can have a big impact on the entire constitutional order of South Africa. Therefore, AfriForum decided to consider and further investigate Judge Moseneke’s report, as well as the application that is being launched by the electoral commission to consider possible entry to the case.     

Issued by Chanté Kelder, Media Relations Officer, AfriForum, 23 July 2021