Johannesburg - The Independent Electoral Commission says the proclamation of the election date by Cooperative Governance Minister Nkosazana Dlamini Zuma has implications for its work as it prepares to head to Constitutional Court, seeking a postponement.
The IEC was on Tuesday reacting to Dlamini Zuma gazetting the date for the local government elections as October 27.
The organisation is today expected to outline its Constitutional Court application, which seeks to postpone the elections.
The ANC welcomed the proclamation, saying it would file a supporting application for the IEC's ConCourt application. The party said it supported a postponement of the elections of no more than six months.
Meanwhile, the DA said the proclamation was a move designed to assist the IEC in seeking a postponement. The party insists elections should go ahead on October 27, and has called on citizens to reject a possible postponement.
Dlamini Zuma said on Tuesday that by law, she had no choice but to proclaim the date of the elections.
The continued rise in Covid-19 cases and the third wave had necessitated a need to assess whether elections could go ahead, and whether they would be free and fair.
Retired deputy chief justice Dikgang Moseneke’s report, released on July 20, recommended a postponement of elections to February 2021.
The report also recommended that the IEC approach the Constitutional Court court to seek a postponement.
The IEC had accepted the report and adopted and said it would approach the Constitutional Court to seek a postponement. The organisation also postponed the registration weekend which was scheduled for July 31 and August 1.
Dlamini Zuma said after seeking legal opinion it was clear that she had no legal powers not to go ahead and proclaim the election day on Tuesday.
"The Minister is not empowered to postpone the elections to a date beyond 90 days after the expiry of the term of the municipal councils, as prescribed by section 159(2) of the Constitution," the minister said.
"In gazetting the date, we are no way seeking to contradict the Inquiry’s conclusion or the IEC’s contemplated actions. We are just merely fulfilling our obligations," she said.
With the proclamation, the voters roll will be sealed.
Dlamini Zuma said the IEC was legally bound to approach the ConCourt seeking the postponement and her office must be cited as a respondent.
She said at the moment, there was no postponement of the elections until a court order stated so.
Legally, only the Constitutional Court can provide for such relief. Dlamini Zuma said it would have been difficult for the IEC to seek a postponement of an election that had yet to be proclaimed.
She said if the court grants the IEC relief for the postponement, Cogta would abide by the outcome.
On the future of municipal councils, whose terms expire, Dlamini Zuma said legally, those councils would continue to function if the court grants a postponement.
If the Constitutional Court does not grant the IEC an application postponing the elections, then the elections would have to go ahead on October 27.
There is no legislative framework that permits the government or the IEC to postpone elections without the Constitutional Court giving the go-ahead.
Dlamini Zuma said the drafters of the Constitution had not foreseen a situation where a global pandemic would force an election postponement and, as as such, nowhere does the Constitution provide such relief.
zintle.mahlati@inl.co.za
Political Bureau