Litigation: ConCourt likely route on election postponement

The Electoral Commission (IEC) says approaching the Constitutional Court to grant it approval to defer the municipal elections would ensure that it avoids any potential legal action against its decision to postpone the polls. The IEC’s deputy CEO, Masego Sheburi, said though they are still seeking legal opinion on the matter and have yet to file papers to the appropriate court in line with the recommendations of the Moseneke report, approaching the Constitutional Court would ensure finality and clarity. Sheburi said approaching the court directly is, however, risky because it could question the IEC’s decision to not approach a lower court or the Electoral Court, which has jurisdiction over electoral matters. Sheburi said the approval sought by the IEC to defer the municipal polls beyond the constitutional five-year limit placed on municipal councils was a ‘weighty matter’ that could be beyond the scope of the Electoral Court.

A Business Day report notes the report of the ‘Inquiry into Ensuring Free and Fair Elections during Covid-19’, penned by former Deputy Chief Justice Dikgang Moseneke, is not binding on the IEC and could face opposition from political parties who have notified the IEC of their support for conducting the elections under Covid-19 conditions. The opposition to the IEC’s decision from political parties will, however, only be known once the electoral body has filed its court papers, Sheburi said. The IEC will also approach the Treasury about the financial implications of postponing the polls. The amount required will only be determined once the IEC has taken account of all the recommendations of the Moseneke report.

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