Wednesday, 04 August 2021

Pretoria: Cooperative Governance and Traditional Affairs (CoGTA) Minister, Dr Nkosazana Dlamini-Zuma, has gazetted the date of 27 October 2021 for the scheduled fifth edition of the local government elections.

Making the announcement on Tuesday, Dlamini-Zuma said this was to comply with Constitutional requirements.

Section 159 of the Constitution, read with the Municipal Structures Act, prescribes that the end of a five-year term of local government elections be held within a period of 90 days.

President Ramaphosa in April announced that the local government elections will take place on 27 October this year. To follow up and conclude on this, the Ministry had to proclaim and Gazzette the date this week.

Amid the COVID-19 pandemic, the IEC appointed retired Deputy Chief Justice Moseneke to consider whether the country could undertake free and fair elections in October.

The inquiry received over 4 000 submissions from political parties, health experts and the general public, concluding its work and handing the report to the IEC in July.

The report concluded that it was not reasonably possible to or likely that the October local government elections would be held in a free and fair manner.

In balancing the need to secure livelihoods and our democratic obligations, the IEC agreed with the Moseneke Inquiry, which also recommended that the Commission approach a court of competent jurisdiction to seek a just and equitable order to defer elections to not later than February 2022.

The Minister on Tuesday said she was confronted by the question of whether she was obliged by law to proclaim the election date despite the DCJ’s recommendation, for which she sought Legal Counsel.

Legal advice she sought considered among other things whether the IEC may request the Constitutional Court to postpone elections where an election date has not yet been proclaimed.

The advice also considered:

  • whether this means the Minister must proclaim the election date, leaving the IEC to approach the Constitutional Court for a postponement of the elections;
  • whether it should be the IEC or the Minister that approaches the Constitutional Court for the postponement of the elections; and
  • the role that the Minister should play in the litigation if the IEC approaches the Constitutional Court – namely whether she should be a co-applicant or amicus curiae.

The Legal Opinion concluded that by resolving to adopt the Report the IEC has, by implication, concluded that elections held in October 2021 would not be free and fair and has resolved to follow the recommendations of the Report.

The  Legal Opinion also found that there was an imperative to protect the rights of all persons to life, bodily and psychological integrity, as well as access to healthcare services, all of which rights may be jeopardised if elections continue as initially planned.

“The Minister is not empowered to postpone the elections to a date beyond 90 days after the expiry of the term of the municipal councils, as prescribed by section 159(2) of the Constitution.

“The nature of the relief that the IEC will seek should determine whether the Minister must first proclaim an election date for purposes of an application to the Constitutional Court.

“What we say without any doubt is that the Minister is bound to fulfil her constitutional and statutory obligations to timeously proclaim the election date for the elections.”

There was currently no court order that would excuse the Minister from fulfilling her constitutional and statutory obligations. If the Minister is forced to proclaim the election date before judgment by the Constitutional Court, found the advice, “she may explain that she has been advised to do so to fulfil her constitutional and statutory obligations”.

“If the Court postpones the elections, the Minister would not have acted in contempt of Court. Proclaiming the election date for 2021 would only be prohibited if there is a Court order postponing the elections to February 2022,” it found.

Dlamini-Zuma said it was “clear that we still must go ahead to call the elections and gazette the date”.

She said this would also enable the IEC to go ahead and file papers in the Constitutional Court to postpone an election that has been called.

“We are also aware the calling of the elections and gazetting will mean the voters’ roll will be sealed. The IEC will have to go to the Constitutional Court on an urgent basis and hopefully in their papers will take into account that will be sealed after the calling and gazetting of the date by these actions. If the Constitutional Court allows for the postponement of course we will abide,” she said.

In gazetting the date, the Minister said the Ministry was in “no way seeking to contradict the Inquiry’s conclusion or the IEC’s contemplated actions”.

“We are just merely fulfilling our obligations.” she said.