FILE: Picture: Motshwari Mofokeng/African News Agency(ANA)
FILE: Picture: Motshwari Mofokeng/African News Agency(ANA)

ConCourt dismisses DA’s application to stop IEC from reopening nomination of candidates

By Baldwin Ndaba Time of article published Sep 20, 2021

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JOHANNESBURG: The Constitutional Court has dismissed the DA’s application to stop the Electoral Commission (IEC) from re-registering candidates of political parties, on Monday.

The DA lodged an application in the Constitutional Court, arguing that the Electoral Commission’s decision on September 6, 2021 to reopen the candidate nomination process in the 2021 local government elections, was unconstitutional, unlawful and invalid and that it be set aside.

The application came off the back of a separate urgent application (the main application) launched by the IEC under the same case number, in which it sought an order that it could postpone the local government elections from October 27, 2021, to February 2022, due to the risk of the election not being free and fair because of the Covid-19 pandemic.

Alternatively, the IEC had sought an order declaring that its failure to hold the local government elections on October 27, 2021, was unconstitutional and that such declaration of invalidity be suspended to allow it until February 23, 2022, to correct the constitutional defect.

Due to the urgency of that application, the Constitutional Court issued an order on September 2, 2021, with reasons to follow.

Under paragraph 5(a) of that order, the IEC was to determine, within three days thereof, whether it was practically possible to hold a voter registration weekend with a view to registering new voters and changing registered voters’ particulars on the national voters roll in time for the local government elections.

Pursuant to the order, the IEC determined that it would be possible to hold a voter registration weekend from September 18 to 19.

In a unanimous judgment decided without an oral hearing by the court, it stated that the proper approach to interpretation involved a unitary exercise in which a court sought to ascertain the meaning of a provision in light of the document as a whole and in context of admissible background evidence.

The Constitutional Court held that the proper interpretation of paragraph 5(a) of the order envisaged an amendment to the timetable in respect of registering new voters.

The focus of the IEC’s determination under the order was the voters and not candidates. The extension of the candidate cut-off date was therefore held to not fall within the ambit of amendments which paragraph 5(c)(iii) contemplated as reasonably necessary.

In respect of section 11(2), the court held that it is doubtful whether section 11(2)(b) found application because the election date in the case was not postponed but rather, the minister’s proclamation was set aside with the effect that there was no election date.

In respect of section 11(2)(a) the court held that granting a candidate cut-off date would be consistent with the legislative scheme and further, with the minister’s intended proclamation date of November 1, 2021, the IEC would have five additional calendar days to work with.

In respect of the DA’s contention that the court’s refusal to grant the EFF’s relief in the main application was a judicial determination, the court rejected the contention. It held that its refusal did not imply that the candidate cut-off date may not be extended.

In relation to the assertion that the ANC would unduly benefit from the reopening of candidate registration, the court held that it was not possible on the papers and in conformity with the Plascon-Evans rule to reject the IEC’s denial of those imputations.

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