Johannesburg - Co-operative Governance and Traditional Affairs Minister Dr Nkosazana Dlamini Zuma has accused the DA of wanting the Constitutional Court to usurp the Electoral Commission of SA’s (IEC's) powers in breach of separation of powers.
Dlamini Zuma said the DA was trying to get the apex court to usurp the IEC's powers in breach of the separation of powers principle, in which three arms of the state – judiciary, legislature and executive – are not supposed to interfere in each other’s functions.
The minister this week filed her answering affidavit in response to the DA’s application to have the Constitutional Court declare the commission’s decision to reopen the candidate nomination process ahead of the November 1 local government elections unconstitutional, unlawful, invalid and the move reviewed and set aside.
“The commission is the only constitutionally mandated organ of state responsible for running elections, including that those elections are free and fair,” the minister said.
According to Dlamini Zuma, the DA’s interpretation of the apex court’s September 3 order dismissing the IEC’s application to have the municipal polls postponed until February next year requires the usurpation of the commission’s powers and the legislature.
“But then the DA wants the court to usurp the powers of the commission and determine what is reasonably necessary to ensure a free and fair election. This is not permissible. All the court can permissibly do is to determine whether the commission acted lawfully in making its decision,” reads the affidavit.
It warns that not to find that the IEC had no power to act as it did on the basis of the September 3 order would somehow take away or constrain its powers.
The minister wants the DA’s application to be dismissed.
Dlamini Zuma further stated: “This breached the doctrine of separation of powers. The (September 3) order does not and cannot be read to constrain the commission’s powers under the Constitution and in terms of the Electoral Act.”
She rejected the DA’s argument that the apex court’s dismissal of the EFF’s bid to reopen candidate nomination implied that the IEC was barred or interdicted from doing so even if it deemed it necessary.
”That cannot be so. The dismissal of the EFF application cannot be equated to a restraint against the commission’s exercise of its statutory powers. If the court wished to issue such a restraining order, it would have done so in clear terms,” Dlamini Zuma said.
In its replying affidavit, the DA denied that its Constitutional Court application challenging the IEC’s decision to reopen the candidate nomination process ahead of the local government polls is political and seeks to strip the commission of its statutory and constitutional powers.
DA MP and its representative in the IEC’s national party liaison committee, Werner Horn, told the apex court that the commission’s other refrain characterising the current dispute as “political” rather than legal studiously seeks to portray the official opposition’s complaints about the electoral body’s conduct – and thus its cause of action – as amounting to no more than a question of political viewpoint and preference.
Horn described the IEC, the ANC and Dlamini Zuma’s argument that the DA’s case disregards the doctrine of separation of powers as having no merit.
loyiso.sidmba@inl.co.za
Political Bureau