Prof Dirk Kotzé
The appointment of Judge Dikgang Moseneke by the IEC to investigate the pros and cons of postponing the October local government elections is unprecedented.
It is justified in terms of section 14(4) of the Electoral Commission Act.
It reads: The commission may, if it deems it necessary, publish a report on the likelihood or otherwise that it will be able to ensure that any pending election will be free and fair.
“The emphasis is therefore on whether an election would be free and fair.
“Postponement is ostensibly not part of the legislative purview.”
Postponing a municipal election is a constitutional matter.
Section 159(1) determines that the term of office of an elected local authority is five years and a window of opportunity of 90 days is allowed for the elections.
It can therefore not be changed by the president, by the IEC or even by the Constitutional Court.
Judge Moseneke’s conclusion will be a recommendation to the IEC, which can thereafter consult with the national party liaison committee and ultimately with the president, but they cannot decide to postpone the elections.
The question is: why is postponement of the elections an option?
Firstly, the Covid-19 pandemic, expectations of a third wave and uncertainty of its impact on a general election is an obvious consideration.
If the IEC’s mandate to Judge Moseneke is taken into account, the point is whether the pandemic could threaten the free and fair nature of an election.
A free and fair election depends on whether the voters feel free to participate in the elections.
The pandemic should not make them scared to be in public and cast their vote at a voting station.
Consider the fact that the election is scheduled for October 27.
Given the patterns of the past, there would be a slim chance that the third wave will still be rampant at the beginning of the summer.
Free and fair elections also depend on the ability of parties to campaign in a fair manner with free access to the voters.
It is taken for granted that not all forms of traditional campaigning might be possible in the months before the election date.
But the question is whether only those forms of campaigning can make an election free and fair.
Political parties have neglected the opportunity in the last year to develop new and innovative forms of campaigning and forms of public communication.
Like other parts of society, they are also expected to make adjustments.
A second possible motivation for an election postponement is because of the negative impact of the new Political Party Funding Act.
It is now already general knowledge that most political parties expect a decline in their income from private donations since the act took effect on April 1.
It might be also too soon to receive any significant income from the two public funds established by the Act.
While the existing Represented Political Parties’ Fund since 1998 only funded parties in national and provincial legislatures, it is unclear whether its role in the new Act as well as the new Multiparty Democracy Fund will include funding parties at local level.
A third possible motivation for a postponement could be that the trends in the latest local by-elections is voter turnout percentages of between 30% and 40%.
They may be ascribed to the impact of the pandemic on voter behaviour. These voter turnout trends are however “normal” since 1995.
By-elections don’t solicit active voter involvement.
Local elections in general trail by almost 20% behind national and provincial elections’ voter turnout in South Africa.
The average voter turnout in 2016 was the highest ever, at 57%.
The pandemic therefore does not have a significant impact on voter turnout.
A fourth possible motivation is arguably because some parties are not ready for the election.
The EFF has been in support of postponement since the ideas has been raised.
The ANC was also initially in favour of it but since President Cyril Ramaphosa announced the election date, the ANC has become silent on it.
The DA has been consistently against a postponement.
The EFF has not performed well in any of the almost 200 by-elections since November 2020.
Arguably, it hopes that a postponement might give them time to improve their prospects.
The DA has also suffered some losses in the by-elections and could therefore also benefit from a postponement but does not support such a call.
For how long should the elections be postponed if it becomes inevitable?
The EFF is in favour of a long postponement until the 2024 general election.
It should then be synchronised with the national and provincial elections.
No other options are publicly discussed.
Any postponement should be as short as possible.
Most municipal councils need new mandates.
Many of them are coalition governments which require that voters can indicate any changes in their preferences.
It would be untenable to allow for a term of eight years until 2024.
The most important consideration is to prevent a precedent from being established which can justify electoral postponements on a regular basis.
It is even less tolerable when public opinion and the opinion of the political parties are divided on this.
In absolutely exceptional circumstances a consensus on postponement might be possible and can justify it, but it does not exist at the moment.
* Kotzé is Professor in Political Science at Unisa.
** The views expressed here are not necessarily those of IOL.