Countdown to Oct 27 – unless a court orders otherwise

IEC press release, 4 Aug 2021

Centurion – The Electoral Commission has taken note of yesterday’s proclamation of the 2021 Local Government Elections by the Minister of Co-operative Governance and Traditional Affairs (CoGTA), Dr Nkosazana Dlamini-Zuma. The proclamation follows legally sanctioned consultation processes between the Minister and the Commission.

The Commission has appreciation for the constitutional and statutory obligation of the Minister to proclaim the election date in the context where there is currently no court order on the deferment of municipal elections.

Implications of Proclamation

The proclamation triggers the requirement for the Commission to publish an election timetable. The Commission will undertake the activities which must be performed in terms of the timetable until a competent court orders differently. The election timetable spans 85 days and lays down the key dates and deadlines for various electoral milestones until voting day on 27 October 2021. The election timetable will be published today, 4 August 2021.

The first legal consequence of the proclamation is to close the voters’ roll for the purposes of the election on 27 October 2021. This means no new voters may be admitted to the voters’ roll for the proclaimed election date. This is inclusive of all forms of registration that is both physical as well as electronic registrations. The current voters’ roll stands at 25.7 million registered voters.

Since the introduction of electronic registration there has been 17 964 successful registrations.

Proclamation of the election date also opens the candidate nomination process and this window period will conclude on 23 August 2021 at 17h00. Registered political parties and independent candidates intending to contest the 2021 Municipal Elections must submit their lists of candidates and nomination documents via the following channels:

• Using the Electoral Commission’s Online Candidate Nomination System at https://www.elections.org.za/MyIEC/Account/Login); or
• Delivered by hand only to the office of the local representative of the Commission in the intended municipality of contest.

Furthermore, the Commission has determined amounts to be levied as election deposits for candidature in the forthcoming elections. This determination was preceded by the publication of proposed amounts for public comment earlier in the month of June. A total of 14 submissions were received and considered by the Commission in the final determination of election deposits.

The deposits to be prescribed for the forthcoming elections are as follows:

• Three thousand five hundred rand (R3 500.00) in respect of an election in a metropolitan municipality;
• Two thousand rand (R2 000.00) in respect of an election in a local municipality with wards;
• One thousand rand (R1 000.00) in respect of an election in a district municipality; and
• One thousand rand (R1 000.00) in respect of an election in a ward if the party is not contesting PR election or an independent ward candidate.

The final amounts to be prescribed are unchanged from those set in the previous municipal elections in 2016, and reflect a decrease of 12.5% (for those contesting metro councils), and 20% (for those contesting local councils) since the 2011 municipal elections. This dispensation is intended to give effect to the constitutional right of every adult citizen to contest elections if they so desire but also to obviate frivolity in the electoral contest.

Therefore, a political party contesting all elections across the country (i.e. 44 District PR, 205 Local PR, 8 Metro PR and 4 468 wards) would have to lodge a deposit of R 482 000 for 4 725 different elections and corresponding different ballot papers configurations.

For more information on submitting candidate lists for the 2021 Municipal Elections, please refer to https://www.elections.org.za/pw/Parties-And-Candidates/How-To-Contest-Municipal-Elections.

A full election timetable is now also available on the website of the Commission.

Court Application

Whilst the Commission prepares for the elections on 27 October 2021, it has launched an application out of the constitutional court. The application is direct to the constitutional court because of a number of reasons primary of which being that the matter raises weighty constitutional matters involving the balancing of rights enshrined in the constitution.

This court application is an extraordinary one and presumably unprecedented. The issues which are core to the application have a bearing on the political rights of citizens as well as the right to life, bodily and psychological integrity and access to health. The application will undoubtedly offer the constitutional court another opportunity to contribute to the evolving jurisprudence of our constitutional order.

The application is also launched on an urgent basis because there is need for certainty on the preparations for the municipal elections.  The Commission and electoral stakeholders are currently in an untenable position where preparations are proceeding for the 27 October whilst at the same anticipating the outcome of the constitutional court application for a possible deferral of elections to February 2022.

The nature of the relief sought by the Commission is largely predicated on impossibility to perform a constitutional obligation which is the conduct of constitutionally compliant elections of municipal councils by 1 November 2021 due to the COVID-19 pandemic and the measures that government has instituted to curb the spread of the virus.

The primary relief can be broadly described as follows:

Declaring that the Commission may hold the forthcoming local government elections outside the 90-day period required by section 159(2) of the Constitution and section 24(2) of the Local Government: Municipal Structures Act, 1998 and directing the Commission to hold the forthcoming local government elections by no later than the end of February 2022.

Additionally, authorizing the Minister of CoGTA to withdraw the notice calling the forthcoming local government elections and setting 27 October 2021 as the date on which they will be held; and issue a fresh notice calling and setting a date before 28 February 2022 for the forthcoming local government elections.

Furthermore, the Commission is seeking alternative relief in the event it is not successful on its preferred option. The alternative relief essentially asks the Constitutional Court to declare that failure to hold the municipal elections by 1 November 2021 is unconstitutional and invalid and suspending the declaration of invalidity until the end of February 2022.

Moreover, the Commission asks the Court to assume ongoing supervisory jurisdiction, requiring the Commission to report to the Court periodically on its progress in arranging constitutionally compliant local government elections in February 2022.

In order to avoid uncertainty about the legal status of current municipal councils, the Commission seeks an order that the municipal councils remain competent until newly elected councils are declared elected.

This court application affects the rights of all citizens of the country and thus everybody has an interest in the proceedings that will evolve in the constitutional court. In order to facilitate access to the court process, the Commission will immediately place the founding papers on its website as it transmits by electronic means the application to all registered parties.

In closing, the Electoral Commission wishes to assure South Africans that it is committed to conducting an election in terms of the constitutional standards and it wishes to do so in the shortest reasonably possible period whilst preserving the rights to life, bodily and psychological integrity and access to health of citizens of the country.

ENDS

ISSUED BY THE ELECTORAL COMMISSION

Ensuring free and fair elections

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