A shorter version of this brief was first published in Daily Maverick.
Introduction
Following the Report of the Moseneke Inquiry, the Independent Electoral Commission (‘Commission’) approached the Constitutional Court seeking an order postponing the local government elections to a date beyond the constitutionally prescribed time-limit for the holding of the elections. The Constitutional Court dismissed the Commission’s application and the local government elections are now scheduled to be held on 1 November 2021. Although the judgment of the Constitutional Court leaves the upcoming 2021 local government elections open to legal challenges, the prospects of a successful challenge to the elections in their entirety seems low.
Background
On 21 April 2021, the President announced that the local government elections would be held on 27 October 2021. Shortly after the President’s announcement, on 20 May 2021, the Commission appointed Justice Moseneke to inquire into the likelihood of the 2021 local government elections being free and fair in light of the Covid-19 pandemic and the measures adopted by government to curb the spread of the virus.[1]
On 20 July 2021, the Moseneke Inquiry produced its report in which it found that the local government elections were unlikely to be free and fair if held in October 2021.[2] The Report further suggests that the elections be held in February 2022 instead.[3]
However, the Constitution requires local government elections to be held within 5 years and 90 days of the last election.[4] An identical requirement is contained in the legislation governing local government elections.[5] The latest date on which the local government elections can be held in terms of the Constitution and relevant legislation is, thus, 1 November 2021.[6]
The Commission, therefore, directly and urgently approached the Constitutional Court, on 4 August 2021, for an order permitting it to hold the local government election in February 2022.[7]
On 3 September 2021, the Constitutional Court handed down its order dismissing the Commission’s application for postponement of the elections.[8] The Court also set aside the proclamation by the Minister of Cooperative Governance and Traditional Affairs (‘Minister’), in which 27 October 2021 was proclaimed as the date for the local government elections,[9] and gave additional orders.[10] The Constitutional Court gave the reasons for its order on 18 September 2021, in a majority judgment penned by Rogers AJ.
The judgment of the Constitutional Court
Importantly, in dismissing the Commission’s application for a postponement of the local government elections, the Constitutional Court did not hold that the 2021 local government elections will necessarily be free and fair if held within the constitutionally prescribed time-limits. Instead, the Court held that the Commission’s constitutional duty is to conduct elections within the constitutionally prescribed time‑limit and to make the elections “as free and fair as reasonably possible”.[11]
A primary consideration in the Court’s reasoning was the importance of the regularity of elections as a founding value in section 1(d) of the Constitution.[12] The Court emphasises the importance of regular elections for local government to “remain democratic, accountable, responsive and open”.[13] The time-limit prescribed in the Constitution for the holding of local government elections gives effect to the regularity of elections, and adhering to the time-limit is therefore of utmost importance.[14]
The Court makes it clear that after the holding of the upcoming 2021 local government elections a court, if approached by an aggrieved political party or any interested person, will be entitled to set aside all or some of the elections on the grounds that they were not free or fair.[15] This leaves the door open to after the fact challenges to the elections.
The judgment of the Court provides helpful guidance as to considerations that will inform a court’s determination of a challenge to the elections, and the remedies that a court may grant.
In any challenge to the elections, the Court emphasises that whether a court will set aside the elections will depend on the circumstances prevailing at the time of the election.[16] The circumstances that will need to be considered will likely include: The state of the pandemic at the time of the elections, including the numbers of confirmed Covid-19 cases, the rate at which the numbers are increasing, whether there is a resurgence of Covid-19 and the pace of the vaccination roll-out; and the restrictions on gatherings and other activities put in place by the government to curb the spread of the virus in the run up to and at the time of the elections.
Importantly, the Court also emphasises that the determination will depend on the standard for free and fair elections which applies in the context of Covid-19.[17] In particular, the Court questions, without deciding, whether the standard for free and fair elections is “altered by the Covid-19 pandemic”.[18] The Court refers to and approves its earlier judgment in Kham,[19] in which it held that an election must be assessed in context, and that the assessment ultimately involves a value judgment.[20] The Court also states that the standard of free and fair elections “must at least to an extent be conditioned by the circumstances prevailing in a country, even if there is an irreducible core”.[21]
Regarding the remedy that a court may grant in a challenge to the elections, the Court suggests that, in the event that some or all of the elections are set aside, a just and equitable remedy in terms of section 172(1)(b) of the Constitution may be available instead of re-running the elections.[22] The remedy granted must be based on the circumstances prevailing at the time that the court finds that the elections were not free and fair.[23] The critical question will be “whether materially better elections could be re-run in the foreseeable future or whether one should rather live with the results of imperfect elections”.[24]
The Court emphasises that some elections may be set aside while others may stand.[25]Whether all or some of the elections should be re-run will be informed by the state of the pandemic in the country, the measures in place to curb the spread of the virus, the budgetary constraints of the Commission, and the prejudice suffered by voters when their ability to elect new representatives is delayed.[26]
Challenges to the 2021 local government elections
It would not be surprising if there are legal challenges to the local government elections of 1 November 2021.
One challenge that might be raised is that South Africans were unable to freely exercise their right to vote in light of the Covid-19 pandemic. A challenge on this basis is especially likely if voter turn-out is significantly lower than in previous local government elections. Another is that candidates were unable to freely contest the elections in light of the Covid-19 pandemic and the government restrictions on movement and gatherings. Both free suffrage and the freedom to contest elections are elements fundamental to the conduct of free and fair elections.[27]
The Constitutional Court’s judgment, however, indicates that any challenge to the 2021 local government elections will face a couple of hurdles.
First, the standard of free and fair elections may be altered in light of the Covid-19 pandemic; making it more difficult to establish that the 2021 local government elections were not free and fair in terms of an altered standard.
Second, even a finding that all or some of the elections were not free and fair will not automatically lead to the likely desired result – the re-running of the elections. It may also have to be established that materially better elections can be re-run in the foreseeable future. This may be difficult to do given that the pandemic is likely to be with us for some time and there is uncertainty around the length of time that vaccines remain effective, the need for booster shots and the emergence of vaccine-resistant variants. Another major difficulty will be the significant budgetary constraints of the Commission, which will need to be taken into account.
Conclusion
Although the judgment of the Constitutional Court leaves the door open for legal challenges to the 2021 local government elections, there is also much in the judgment that throws up hurdles in the way of any successful challenges. A challenge to the elections in their entirety appears to have low prospects of success. South Africans may well have to live with the results of imperfect local government elections.
Catherine Kruyer
Senior Legal Researcher
catherine@hsf.org.za
[1]The Commission appointed Justice Moseneke in terms of section 14(4) of the Electoral Commission Act, 1996, which provides that that “[t]he Commission may, if it deems it necessary, publish a report on the likelihood or otherwise that it will be able to ensure that any pending election will be free and fair.”
[2] A Report to the Electoral Commission of South Africa in terms of section 14(4) read with section 5(2)(A) of the Electoral Commission Act (‘Mosenke Report’) at paras 256 and 321 available at https://www.elections.org.za/freeandfair/.
[3]Moseneke Report at paras 256 and 321.
[4] Section 159 of the Constitution provides that the term of a Municipal Council may be no more than 5 years and that an election must be held within 90 days of the date on which the term of the Municipal Council expires.
[5]Municipal Structure Act, 1998 at section 24 read with the Municipal Electoral Act, 2000.
[6] This is because the last local government elections were held on 3 August 2016.
[7]The primary relief sought by the Commission was an order permitting it to hold the local government elections outside of the constitutionally and legislatively prescribed time limit and directing it to hold the election in February 2022. The Commission also sought alternative relief in terms of which the Commission’s failure to hold the elections within the constitutionally and legislatively prescribed time limit would be declared unconstitutional and invalid, but the declaration of invalidity would be suspended and the Commission’s duty to hold the elections suspended until February 2022.
[8] Electoral Commission v Minister of Cooperative Governance and Traditional Affairs [2021] ZACC 29 at para 2 of the order.
[9]Para 4 of the order.
[10] The additional orders given by the Constitutional Court sought to enable eligible voters to register before a fresh proclamation of the date for local government elections by the Minister. It is not possible to register to vote after the date for the elections has been proclaimed. The order made provision for eligible voters to register to vote either at a voter registration weekend, if the Commission determined that it was practically possible to conduct one, or at their relevant municipal office before a fresh proclamation was issued. See para 5 of the order.
[11]At para 154(e).
[12]At para 161.
[13]At para 161
[14]Para 154(d).
[15]At para 154(g).
[16]At para 197.
[17]At para 154(g).
[18]CC judgment at para 154(a).
[19]Kham v Electoral Commission [2015] ZACC 37; 2016 (2) SA 338 (CC); 2016 (2) BCLR 157 (CC).
[20]Para 191 referring to Kham at para 34.
[21]Para 190.
[22] Para 154(g).
[23]At para 198.
[24]At para 199.
[25]At para 238.
[26]At para 238.
[27]See Moseneke Report at para 71. See also Richter at para 57; and New National Party at paras 21, 23 and 120 and Kham at para 91.
