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The Independent Electoral Commission (IEC) is limping to the Constitutional Court tomorrow after its application to file further affidavits responding to the Tlokwe independent candidates was dismissed on Thursday.
Independent candidates had argued in court that it was possible to fix deficiencies in terms of residential addresses in the voters’ roll and still have the municipal elections on August 3, while the IEC argued to the contrary.
The court is expected to hear the teams’ arguments tomorrow.
The matter is considered to be urgent, if the IEC needs to complete and certify the voters’ roll before the August 3 elections.
The court battle will be a clash of serious legal heavyweights. The IEC is being represented by Wim Trengove (the same senior counsel who represented the EFF in its Nkandla bid at the Concourt), Matthew Chaskalson and Steven Budlender.
The ANC has called on Gilbert Marcus; the DA on Anton Katz and Des van Rooyen; the cooperative governance minister is represented by Gcina Malindi; the IFP has Kemp J Kemp (who represented President Jacob Zuma in the Nkandla case); and BR Tokota for the national house of traditional leaders.
Speaking to City Press ahead of the judgment, attorney for the independent candidates, Hans-Jurie Moolman, said: “You have one side saying they are fighting for the constitutional right to vote. Then, on other side, you have us saying, ‘yes, we agree people should vote, but it should happen in a free and fair environment’.
“Otherwise, it is like watching a game two days after it has been played and you already know the results.”
In November last year, the Constitutional Court ruled that the 2013 by-elections in the Tlokwe Municipality of the North West were not free and fair.
In February this year the by-elections were postponed when six independent candidate’s protested that more than 4 198 addresses were missing from the new voters’ roll. The IEC then approached the court for clarity. The electoral court agreed with the independent candidates.
In March, the IEC went to the Constitutional Court with a two-pronged request following the Electoral Court’s ruling that by-elections be postponed again. They asked the ConCourt to overturn the judgment made by the Electoral Court because its ruling had serious implications for local government elections this year.
It could stall the August elections since there were millions of voters whose addresses were not captured properly on the voters’ roll.
The application the IEC was looking to make is one which essentially rubbishes proposals made by independent candidates on how the IEC could go about capturing the outstanding voters’ addresses. The independent candidates pointed at existing government and private sector databases – Rica – which could be used to obtain addresses among other efforts.
Moolman argued: “The fact that the IEC, on their own accord, were capable of communicating to more than 5 million registered voters via SMS during the last registration week of April 8-9 2016, to update their addresses, is the most glaring contradiction of a generalisation that some voters are poor and don’t have addresses.”
The IEC’s reasons included that it did not have enough funding to speed up the process of securing addresses. It estimated that it could take up to 2020 to capture the missing addresses. Due to a high rate of illiteracy, it also argued that the forms which would describe locations would have to be filled in with assistance by some officials which would cause a great delay. This was rejected by the ConCourt on Thursday.
Following the electoral court ruling to postpone by-elections in March, there was a great anxiety that for the first time the Constitution was under threat and elections would not take place this year. But a consensus among analysts dismissed this as a worst-case scenario.
Moolman said that the candidates did not anticipate that their complaint would lead to such a crisis and that all this could have been avoided had the IEC been more forthcoming.
“We are satisfied that the Constitutional Court is more concerned about the irregularities that we are faced with now ... [and this] gave cause for the setting aside of the by-elections in the November 2015.”
Moolman said their clients feel they have provided adequate proposals that will ensure that elections take place on time. Therefore, they expect the ConCourt to dismiss the IEC’s appeal against the judgment of the Electoral Court, which was in their favour.
