The Constitutional Court ruled on June 14 that the August 3 local authority elections should proceed, despite the deficient voters’ roll that the court found to be “illegal” and “inconsistent with the rule of law”.
The inadequacies highlighted by the court have the potential to create chaos.
Reluctant to halt the August polls – a move that would have required a constitutional amendment – the court ordered the Electoral Commission of South Africa (IEC) to update its voters’ roll to include the addresses of all registered voters, but suspended the ruling for 18 months thus allowing the August elections to go ahead. However, disputes over the legality of registered voters without verifiable addresses are likely to arise and legal challenges to result where losing parties feel aggrieved could occur.
Given that some elections are likely to be fiercely contested and produce results that are close, the likelihood of legal challenges increases along with the potential for violence.
The case originated from a November 2015 Constitutional Court ruling that the 2013 Tlokwe by-elections in the North West were not free and fair due to irregularities that had arisen due to a lack of verifiable addresses for voters. Independent candidates lodged objections with the IEC prior to the polls over voter registrations in their respective wards. Applicants complained of delays in receiving the segments of the national voters’ roll to be used for the by-elections that did not include the residential addresses for any voters.
Following the by-elections, the IEC conducted its own investigation into the allegation that voters not entitled to register in these wards had been registered and that their participation had affected the by-election results. It found that 1,040 people had been incorrectly registered on the segments of the voters' roll for the affected voting districts.
The Constitutional Court set aside the by-election results with new by-elections set for February this year with all new voters required to provide details of their address or sufficient details of where they lived in order for them to be placed in a voting district. However, it emerged that there were still some 4,000 voters on the roll with no verifiable addresses, leading to a successful application by some candidates for the IEC to postpone the polls.
It was in the wake of this decision that the IEC asked the Constitutional Court for the ruling it delivered yesterday. The court decided that the IEC had failed in its bid to have elections continue with the voters’ roll in its current state (without the addresses).
However, that decision was suspended until 30 June 2018, with Tlokwe specifically excluded from this ruling and the IEC was ordered to ensure that the addresses of all registered voters in Tlokwe appeared on the roll before the August elections. “The electoral commission is, except for the Tlokwe local municipality, not required to record all the available addresses of voters on voters’ roll for the purpose of the August 2016 local government elections,” Chief Justice Mogoeng Mogoeng said.
The Constitutional Court faced a difficult legal dilemma in that a ruling demanding that the voters’ roll contain the verifiable addresses of all registered voters would have made an August local authority election impossible, given that millions of names currently on the roll have no such details. That, in turn, had its own constitutional issues given that local polls cannot be postponed beyond a certain period of grace without amending the constitution.
The court produced a compromise ruling that allows the August elections to go ahead without the addresses requirement, yet demands that the IEC comply fully with the law within 18 months. That seems perfectly reasonable, but it does open the window to literally dozens of legal challenges to poll outcomes that losing candidates might refuse to accept.
The closer the results of the elections, the more likely they will be challenged.