On Saturday, 18 September 2021 the Constitutional Court issued its reasons relating to the order of 3 September 2021 in the matter of Electoral Commission v Minister of Cooperative Governance and Traditional Affairs and Others concerning the local government elections.

The order of 3 September 2021 reflected that the Court was not unanimous.  Accordingly, the reasons were contained in two judgments, one by Rogers AJ and the other by Zondo ACJ.  The reasons in Rogers AJ’s judgment reflect the reasons of the majority. Zondo ACJ’s judgment contained the reasons of the minority which did not concur in the order of 3 September and who would have given a different order.  The reasons in Zondo ACJ’s judgment were concurred in by Justice Tshiqi and Acting Justice Madondo.

The order of the Court issued on 3 September followed upon an urgent application that was brought by the Electoral Commission (Commission) in the Constitutional Court for direct access in terms of which it asked the Court to in effect postpone the holding of the forthcoming local government election from 27 October 2021 to February 2022.  The African National Congress (ANC), the Economic Freedom Fighters (EFF) and the Inkatha Freedom Party (IFP) supported the Commission’s application.  These political parties were admitted as intervening parties.  The Minister of Cooperative Governance and Traditional Affairs (Minister of COGTA) abided the decision of the Court. The MEC for Local Government in the Provincial Government of the Western Cape, opposed the application.  The MECs for Local Government in the other provinces did not participate in the proceedings.  The Democratic Alliance (DA), the Makana Independent New Deal (MIND); the African Transformation Movement (ATM), the Forum 4 Service Delivery (F4SD) and the One South Africa Movement (OSAM) were admitted as intervening parties.  The Council for the Advancement of the South African Constitution (CASAC), Freedom Under Law (RF) NPC (FUL), the South African Institute of Race Relations (IRR), and AfriForum NPC were admitted as amici curiae in these proceedings.  The application was opposed by the following entities: the DA, F4SD, OSAM, MIND ATM, as well as each of the aforementioned amici.

On 20 May 2021 the Commission appointed Justice Dikgang Moseneke, former Deputy Chief Justice of the Republic, to conduct an inquiry in terms of section 14(4) of the Commission Act 51 of 1996 on the likelihood or otherwise that the local government elections in October 2021 would be free and fair (Moseneke Inquiry) in the light of the Covid-19 pandemic.  The Moseneke Inquiry Report concluded that, if held in October 2021, the local government elections would not be free and fair and would put at risk the peoples’ constitutional right to access to health care services and the right to freedom and security of the person which includes the right to bodily and psychological integrity.  The Moseneke Inquiry further concluded that the local government elections should be held not later than the end of February 2022.  The Inquiry suggested that the Commission should consider approaching with speed a court of competent jurisdiction to apply for an order postponing the elections.  The Commission then instituted this application before the Court.

The Commission argued that, due to the Covid-19 pandemic, it was unable to organise a constitutionally compliant local government election for 27 October 2021.  The Commission contended that the principle of lex non cogit ad impossibilia (the law does not compel the performance of that which is impossible) is applicable in this matter.  It submitted that it was impossible to meet the demands that have been set by the Constitution, namely: that the elections must be held within 90 days of the expiry of the terms of the existing municipal councils (section 159(2) of the Constitution), that the elections must be free and fair (section 190(1)(b) of the Constitution) and that the election must respect, protect, promote and fulfil the rights of the voters to life, bodily integrity and access to healthcare (sections 12(2) and 27(1)(a) of the Constitution), due to the risks associated with the Covid‑19 pandemic.

The Commission asked the Court for an order to the effect that it could hold the local government election then scheduled for 27 October 2021 in February 2022.  Its alternative remedy was an order declaring that its failure to hold the local government elections on 27 October 2021 was unconstitutional and a suspension of that declaration of invalidity to allow it until 23 February 2022 to correct the constitutional defect.  In addition, the Commission also sought a supervisory order.

In support of the application, the ANC suggested that the election should be postponed until April 2022.  The IFP asked that the election should be postponed to 26 May 2022. Their submissions are premised on the anticipated fourth wave of Covid-19 and time constraints.  The EFF supported the application but took the position that, if the application was dismissed, it asked the Court to make an order directing the Minister of COGTA, the President of the Republic of South Africa and the National Coronavirus Command Council to amend or promulgate new Lockdown Regulations to allow larger political gatherings so that it could hold larger gatherings to decide on the list of its candidates.

The DA, F4SD and OSAM opposed the application on the basis that this Court has no power to postpone the elections because it would amount to a constitutional amendment and that the power to do so is exclusively held by Parliament.  In addition, the DA sought relief to the effect that the Commission be directed to hold a voters’ registration weekend before the local government elections scheduled for 27 October 2021.

On the issue of whether the Commission could rely on the principle of impossibility of performance (because of the Covid-19 pandemic) to have the election postponed from 27 October to February 2022, the first judgment, written by Zondo ACJ, held that principle could not help the Commission.  Zondo ACJ did not share the view that the Covid‑19 pandemic provided a sufficient basis to conclude that the election, if held in October 2021, will not be free and fair and will not be safe.  He, therefore, held that he would have dismissed the Commission’s application in so far as it was based on the Covid‑19 pandemic.

The first judgment was critical of the Commission’s failure to hold a voter registration weekend before the Minister of COGTA proclaimed the election date.  It was also critical of the Commission’s failure to publicly inform the eligible and registered voters that it would not hold a voter registration weekend this time despite the fact that all the national elections that it has conducted over the past 27 years were preceded by one or two voter registration weekends.  Zondo ACJ held that the Commission should at least have warned the voters that it would not hold a voter registration weekend and should have afforded them a reasonable opportunity after such an announcement to visit their Municipal Electoral offices to register or update their registration details.  The Commission’s failure to hold a voter register weekend or to publicly warn the voters made it likely that, if held in October, the election would not be free and fair.  This failure on the part of the Commission was a breach by the Commission of its constitutional obligation to ensure a free and fair election and a breach of its constitutional obligation to respect, protect, promote and fulfil the rights contained in the Bill of Rights with special reference to the right to a free and fair election and the right to vote.

The first judgment held that a court does have power to order that an election be held after the expiry of the 90 day period referred to in section 159 of the Constitution where it is not practically possible for the election to be held within the 90 day period.  It also held that the view that a court does not have the power to do that could lead to a constitutional crisis and to councillors whose five-year term of office has ended getting another term of office without winning an election.  The first judgment took the view that this would be untenable. As the Commission’s Chairperson had said in his affidavit that holding a voter registration weekend before the October election would be unworkable, the first judgment would have granted an order giving the Commission a limited postponement of the election that would have allowed the Commission to hold the election between 27 October and 10 December 2021.

The second judgment, penned by Rogers AJ (concurred in by Madlanga J, Majiedt J, Mhlantla J, Theron J and Tlaletsi AJ), held that the Commission’s constitutional duty in the circumstances of this case was to conduct the elections within the 90-day period, making them as free and fair as circumstances reasonably permitted, and that our courts do not, save in rare and exceptional circumstances, have the power to relieve the Commission of this duty.

The second judgment disagreed with the first judgment and held that a challenge to the freeness and fairness of the elections must take place after the elections have been held, with reference to events as they actually unfolded.  The present case was far removed from the sort of situation which might call for pre-emptive intervention.  The second judgment was equally not persuaded that if elections took place on 1 November 2021 without a voter registration weekend, such elections would necessarily fail the standard of freeness and fairness.  If there were good reasons to doubt that pending elections would be free and fair, there was a mechanism to avoid going ahead with them, but the mechanism was not judicial – the choice should be made by Parliament, not the courts.  In respect of the impossibility maxim pleaded by the Commission, the second judgment held that it was not the Commission’s case that it was practically impossible to conduct elections on 27 October 2021, rather, that such elections that would take place would not be free and fair.

The second judgment further held that when the Minister of COGTA proclaimed the election date to be 27 October 2021, she knew that the consequence would be that no voter registration weekend could thereafter be held for purposes of the proclaimed elections.  The second judgment illustrated the grounds on which the Minister of COGTA’s proclamation was to be set aside, and it necessarily followed that it was just and equitable for the Court’s order to make provision for the Commission to conduct a registration weekend, without ordering it to do so unless the Commission determined that it was practically possible.

In addressing the reasons for dismissing the EFF’s conditional application for the relief set out in paragraphs 4 and 5 of its notice of motion, the second judgment held that the relief claimed in paragraph 4 was inappropriate.  If granted, such relief would have violated the doctrine of the separation of powers for this Court to order the Minister of COGTA to promulgate amended or new Disaster Management Regulations.  Since the relief prayed for in paragraph 5 of the EFF’s notice of motion was conditional upon this Court granting the relief claimed in paragraph 4, that prayer fell away.

In the result, the majority of the Constitutional Court supports the order issued by this Court on 3 September 2021.