ConCourt questions why IEC didn’t approach Parly to have Oct elections moved

The apex court justices were questioning the IEC’s urgent application to have local polls postponed to early next year.

FILE: The IEC’s application follows the Moseneke Inquiry’s report, which recommended they be deferred to February. Picture: Boikhutso Ntsoko/Eyewitness News.

CAPE TOWN - The Constitutional Court has questioned why the Independent Electoral Commission (IEC) has not rather approached Parliament to allow it to postpone the local government elections.

The apex court justices were questioning the IEC’s urgent application to have local polls postponed to early next year.

The IEC’s application follows the Moseneke Inquiry’s report, which recommended they be deferred to February.

Advocate Wim Trengove, representing the IEC, has told the Constitutional Court that it would be simply impossible to hold free and fair elections before November.

“The parties, particularly the less endowed parties, will not have proper opportunity to campaign for the election. So yes, an election by 1 November is physically possible, but it won’t be a free and fair elections.”

But Justice Leona Theron asked Trengove why the IEC had not approached Parliament, saying the commission was indirectly asking the court to amendment the Constitution.

“My concern is that the commission is clothing what it wants us to do. And it seems to me, in effect and in substance, the commission is asking this court to amend the Constitution, but it’s not doing so directly.”

The ANC has also made a submission supporting a postponement to April.

APPROACH PARLY FIRST

Meanwhile, former IEC commissioner Terry Tselane said the IEC should have first approached Parliament about having elections postponed.

Tselane - also an executive chair of the Institute of Election Management services - believes the decision to approach the nation's highest court was ill-considered.

“The role of the Constitutional Court is to interpret the law and the application thereof, and not to really make an amendment. The IEC is saying it doesn’t want the Constitution to be amended, but the impact of what they’re seeking is basically to amend Section 159. So, it will end up being the amendment of Section 159 as it currently stands.”

IEC legal team members had to answer some tough questions in court on Friday, including how they could be sure the COVID-19 situation would be better next year.

Their advocate argued that at least 70% of the population would be vaccinated by then and the fourth wave would be behind us.

But Tselane said that argument didn’t necessarily hold.

“People are not vaccinating in the numbers that we expected them to, that’s the first problem. The second problem is that we really don’t know how this pandemic is going to turn out in February, it could be the fourth wave or it could be worse and using it as a basis is going to be quite difficult.”

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