Heavy­weights in ConCourt for vot­ers

CityPress - - News - S’THEMBILE CELE sthem­bile.cele@city­press.co.za 2006 2006

The In­de­pen­dent Elec­toral Com­mis­sion (IEC) is limp­ing to the Con­sti­tu­tional Court to­mor­row af­ter its ap­pli­ca­tion to file fur­ther af­fi­davits re­spond­ing to the Tlokwe in­de­pen­dent can­di­dates was dis­missed on Thurs­day.

In­de­pen­dent can­di­dates had ar­gued in court that it was pos­si­ble to fix de­fi­cien­cies in terms of res­i­den­tial ad­dresses in the vot­ers’ roll and still have the mu­nic­i­pal elec­tions on Au­gust 3, while the IEC ar­gued to the con­trary. The court is ex­pected to hear the teams’ ar­gu­ments to­mor­row. The mat­ter is con­sid­ered to be ur­gent, if the IEC needs to com­plete and cer­tify the vot­ers’ roll be­fore the Au­gust 3 elec­tions.

The court bat­tle will be a clash of se­ri­ous le­gal heavy­weights. The IEC is be­ing rep­re­sented by Wim Tren­gove (the same se­nior coun­sel who rep­re­sented the EFF in its Nkandla bid at the Concourt), Matthew Chaskalson and Steven Budlen­der.

The ANC has called on Gil­bert Mar­cus; the DA on An­ton Katz and Des van Rooyen; the co­op­er­a­tive gov­er­nance min­is­ter is rep­re­sented by Gcina Malindi; the IFP has Kemp J Kemp (who rep­re­sented Pres­i­dent Ja­cob Zuma in the Nkandla case); and BR Tokota for the na­tional house of tra­di­tional lead­ers.

Speak­ing to City Press ahead of the judg­ment, at­tor­ney for the in­de­pen­dent can­di­dates, Hans-Jurie Mool­man, said: “You have one side say­ing they are fight­ing for the con­sti­tu­tional right to vote. Then, on other side, you have us say­ing, ‘yes, we agree peo­ple should vote, but it should hap­pen in a free and fair en­vi­ron­ment’. 400 350 300 250 200 150 100 50 0 2011 79 2001 2006 2011 2016 15 812

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“Oth­er­wise, it is like watch­ing a game two days af­ter it has been played and you al­ready know the re­sults.”

In Novem­ber last year, the Con­sti­tu­tional Court ruled that the 2013 by-elec­tions in the Tlokwe Mu­nic­i­pal­ity of the North West were not free and fair.

In Fe­bru­ary this year the by-elec­tions were post­poned when six in­de­pen­dent can­di­date’s protested that more than 4 198 ad­dresses were miss­ing from the new vot­ers’ roll. The IEC then ap­proached the court for clar­ity. The elec­toral court agreed with the in­de­pen­dent can­di­dates.

In March, the IEC went to the Con­sti­tu­tional Court with a two-pronged re­quest fol­low­ing the Elec­toral Court’s rul­ing that by-elec­tions be post­poned again. They asked the ConCourt to over­turn the judg­ment made by the Elec­toral Court be­cause its rul­ing had se­ri­ous im­pli­ca­tions for lo­cal govern­ment elec­tions this year.

It could stall the Au­gust elec­tions since there were mil­lions of vot­ers whose ad­dresses were not cap­tured prop­erly on the vot­ers’ roll.

The ap­pli­ca­tion the IEC was look­ing to make is one which es­sen­tially rub­bishes pro­pos­als made by in­de­pen­dent can­di­dates on how the IEC could go about cap­tur­ing the out­stand­ing vot­ers’ ad­dresses. The in­de­pen­dent can­di­dates pointed at ex­ist­ing govern­ment and pri­vate sec­tor data­bases – Rica – which could be used to ob­tain ad­dresses among other ef­forts.

Mool­man ar­gued: “The fact that the IEC, on their own ac­cord, were ca­pa­ble of com­mu­ni­cat­ing to more than 5 mil­lion reg­is­tered vot­ers via SMS dur­ing the last reg­is­tra­tion week of April 8-9 2016, to up­date their ad­dresses, is the most glar­ing con­tra­dic­tion of a gen­er­al­i­sa­tion that some vot­ers are poor and don’t have ad­dresses.”

The IEC’s rea­sons in­cluded that it did not have enough fund­ing to speed up the process of se­cur­ing ad­dresses. It es­ti­mated that it could take up to 2020 to cap­ture the miss­ing ad­dresses. Due to a high rate of il­lit­er­acy, it also ar­gued that the forms which would de­scribe lo­ca­tions would have to be filled in with as­sis­tance by some of­fi­cials which would cause a great de­lay. This was re­jected by the ConCourt on Thurs­day.

Fol­low­ing the elec­toral court rul­ing to post­pone by­elec­tions in March, there was a great anx­i­ety that for the first time the Con­sti­tu­tion was un­der threat and elec­tions would not take place this year. But a con­sen­sus among an­a­lysts dis­missed this as a worst-case sce­nario.

Mool­man said that the can­di­dates did not an­tic­i­pate that their com­plaint would lead to such a cri­sis and that all this could have been avoided had the IEC been more forth­com­ing.

“We are sat­is­fied that the Con­sti­tu­tional Court is more con­cerned about the ir­reg­u­lar­i­ties that we are faced with now ... [and this] gave cause for the set­ting aside of the by-elec­tions in the Novem­ber 2015.”

Mool­man said their clients feel they have pro­vided ad­e­quate pro­pos­als that will en­sure that elec­tions take place on time. There­fore, they ex­pect the ConCourt to dis­miss the IEC’s ap­peal against the judg­ment of the Elec­toral Court, which was in their favour.

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