The Democratic Alliance is set to oppose the Independent Electoral Commission’s application to the Constitutional Court to have the 2021 Local Government Elections postponed to February next year. We spoke to DA Federal Council Chairperson, Helen Zille, about why this is a court case to watch.

ChangeMaker (CM): So many things have had to be put on ice due to the coronavirus, why should South Africans be so concerned about a proposal to postpone the upcoming municipal elections?

Helen Zille (HZ): South Africans have a right to regular, free, and fair elections. Unlike postponing any other event, that can be called off for reasons of convenience or need, the timing of elections is set down in the founding provisions of the Constitution which, according to our legal advice, can only be changed by a constitutional amendment requiring a 75% super-majority in Parliament.

The drafters of the Constitution purposefully made it extremely difficult to change the regularity of elections, because of the grave risk of a ruling party being able to interfere with the scheduling of elections – that is a slippery slope on a slide away from democracy.

CM: Can a court change the Constitution?

HZ: No court, not even the Constitutional Court, has the power to amend, or even temporarily suspend, any section of the Constitution, because of the supremacy of the Constitution. This means that the method set down in the Constitution is the only method that can be used to amend it, and this is through Parliament.

It is our carefully considered opinion that the ANC, knowing it could not get a 75% majority in Parliament, chose a different route.

Despite the fact that the Independent Electoral Commission (IEC) could have met the benchmark for a free, fair and safe election within the stipulated time frames, as well over 100 countries have done elsewhere in the world, it failed to do so, and is now effectively forcing the Court’s hand by saying it cannot meet the conditions for a free, fair and safe election in time.

Our submission challenges this argument.

CM: On the other hand, the IEC argues that it won’t be able to honour the constitutional right to free and fair elections by going ahead with these elections.

HZ: The IEC is claiming that it is not asking the Constitutional Court to suspend the constitutional provision regulating the timing of elections.  It says it is merely asking the Court to adjudicate between two constitutional imperatives:  the timing of the election (on the one hand) and the safety – which is part of a free and fair election – (on the other hand). We believe this is a false dichotomy, because it is entirely possible to do both.

After claiming earlier this year that it was completely ready to hold a free and fair election, the IEC has changed its tune, and one has to ask why.

Is it perhaps because the ANC is not ready to face an election?

CM: Have other countries postponed elections due to the coronavirus?

HZ: From February 2020 to 21 July 2021, at least 128 countries and territories have decided to hold national or sub-national elections, despite concerns related to COVID-19, of which at least 107 have held national elections or referendums.

Of course, it is more difficult to hold an election under coronavirus conditions, but it is the IEC’s duty to do so.

WATCH: DA addresses the media on the Party’s legal action against the IEC’s application to the Constitutional Court