Moeti Kanyane Attorneys Secures Electoral Court Order For The IEC Postponing June 2020 By-Elections Due To COVID-19
On Monday, 4 May 2020, the Electoral Court unanimously granted an urgent application launched by Moeti Kanyane Attorneys (“MKA”) on behalf of the Electoral Commission (“IEC”), authorising the IEC to delay municipal by-elections scheduled to be held on 3 and 10 June 2020, respectively, for a period of up to 120 days from the date of the order.
In South Africa, municipal by-elections are most commonly held to elect replacements for ward councillors who have vacated their office due to death, resignation, ceasing to be members of the political party on whose ticket they were elected, disqualification from holding the office of councillor, or removal from office by the MEC responsible for local government in the relevant province. More uncommon reasons for by-elections include to elect a new council where the existing council has been dissolved, as would have been the case in the City of Tshwane Metropolitan Municipality had the decision to dissolve that council not been set aside by the Pretoria High Court.
The law requires by-elections to be held within a period of 90 days from the date on which the relevant vacancy arose. The case involved 11 by-elections in five of the nine provinces which were required to be held by 10 June 2020. Given the current national state of disaster declared in terms of the Disaster Management Act 57 of 2002 and the measures adopted by the government to combat the spread of COVID-19, including the current stage 4 alert level during which gatherings are prohibited, it is not possible for the IEC to properly prepare for and conduct these by-elections.
This order follows on an earlier order of the same court – also obtained by MKA on behalf of the IEC on 19 March 2020 – authorising the IEC to delay by-elections scheduled for March, April and May 2020 for 120 days from the date of the order (i.e., up to 17 July 2020) and to suspend registration activities until the end of the declared state of disaster.
MKA, which celebrates the second anniversary of its establishment today, 7 May 2020, is the leading law firm specialising in all matters concerning electoral law – that branch of public law that deals with the complex arrangements for the election of members of the legislative assemblies established by our much-vaunted Constitution: Parliament, the nine provincial legislatures and the councils of the 236 municipalities in the country. We have advised and conducted litigation for the IEC in countless matters.
On Thursday 15 August 2019 our team, led by our founder Moeti Kanyane, will present arguments in the Constitutional Court on behalf of the Electoral Commission (“IEC”) in a landmark case regarding the design of South Africa’s electoral system used to elect members of Parliament (“MPs”) and of the 9 provincial legislatures (“MPLs”).
Unlike at municipal level, where independent candidates not affiliated to any political party may stand for election as ward councillors representing specific constituencies, the election of MPs and MPLs is conducted on a closed list proportional representation system, which means that voters can only vote for a political party, and it is the political party that selects the MPs and MPLs to be deployed to Parliament or provincial legislature based on that party’s share of the votes cast. This has been the case since 1994.
The applicants in this case unsuccessfully sought an order in the Cape Town High Court declaring the provisions of the Electoral Act, 1998 to be inconsistent with the Constitution and invalid to the extent that they do not allow independent candidates to be elected directly as MPs or MPLs without the intercession of a political party. They now seek to appeal directly to the Constitutional Court to come to their aid. The Minister of Home Affairs (“Minister”) opposes the appeal, arguing that the Constitution requires that candidates for election as MPs or MPLs must be elected through the multi-party electoral system prescribed by Parliament.
The IEC – for whom we act – presents a more nuanced argument: it contends that while the Constitution may possibly allow candidates to stand for election as MPs or MPLs independently of political parties, it does not require the electoral system to allow this, and that the choice of electoral system has been left to Parliament. That Parliament has elected to use the closed list proportional representation system is therefore not unconstitutional.
‘This is almost certainly the most important constitutional decision that the Constitutional Court will be called upon to make in 2019 and we are privileged, as the country’s leading electoral lawyers, to be representing the IEC in this matter’, said our firm’s founder and director, Moeti Kanyane.”
Follow the Constitutional Court’s media release on twitter via @ConCourtSA: https://t.co/2HEZDUtGkj