Chief Justice Mogoeng Mogoeng has given the strongest signal yet the Constitutional Court may strike a legal compromise in the voters’ address debacle‚ paving the way for this year’s local government elections to take place.
Justice Mogoeng said the “bottom line” was that everyone arguing before the court had a duty to help find a way to ensure the elections could go ahead lawfully.
During Monday’s hearing on the postponed Tlokwe by-election‚ he asked counsel that should the highest court accept it was impractical to require all voters to have addresses‚ an interim remedy could not be crafted for the coming elections.
In the same vein‚ the court could also make an order to ensure that “come 2019‚ we have a common voters’ roll that complies with (section) 16(3)‚ accepting that some people simply do not have addresses”.
The dispute plunged the Electoral Authority of SA (IEC) into a crisis‚ with its credibility taking a knock and raising questions about the validity of prior elections.
The IEC approached the highest court after the Electoral Court ruled that by-elections due to take place in six Tlokwe wards two months ago should be postponed because the electoral authority had not complied with a requirement that the voters’ roll contain the addresses of registered voters.
The IEC has argued that‚ should the judgment stand‚ 12 million voters will be disenfranchised and it would take until 2020 to comply with the ruling.
The core legal question in the case is whether the IEC has a duty to make sure that the roll has the address of every voter on it who has a formal address.
The IEC maintains its duty to obtain and keep addresses applies only to voters who registered after December 2003‚ when an amendment to the Electoral Act came into effect.
Wim Trengove, SC‚ counsel for the IEC‚ said the effect of the Electoral Court’s judgment was that a voter whose address was not on the roll would not be able to vote.
Andre Bosman SC‚ counsel for the Tlokwe independent candidates‚ said the IEC needed to do what it had to do to ensure every person on the voters roll had an address recorded.
Recent voter-registration drives showed 1.4 million people could be registered over two weekends – this should enable the IEC to regi-ster 12 million prospective voters in a month‚ he said.
However‚ he would not oppose a court-crafted remedy that was just and equitable, Bosman said in response to Justice Edwin Cameron and Justice Mogoeng’s questions.
Muzi Sikhakhane, SC‚ for the Minister of Cooperative Governance and Traditional Affairs‚ suggested that the court suspend section 16 (3) of the Electoral Act to deal with the IEC’s conundrum.
Anton Katz, SC‚ counsel for the DA‚ said the party would not oppose an interim solution along the lines proposed by Justice Mogoeng.
Kemp J Kemp, SC‚ counsel for the IFP‚ said everyone wanted the elections to take place.
But any order fashioned by the court should “ameliorate the fact that there has not been full compliance”.
David Kham‚ spokesman for the Tlokwe independent candidates‚ said: “In our view‚ the IEC is still capable of handling free and fair elections.”
“We are content with that.”
Judgment is reserved.
Local elections solution may be found
Justice Mogoeng said the “bottom line” was that everyone arguing before the court had a duty to help find a way to ensure the elections could go ahead lawfully.
During Monday’s hearing on the postponed Tlokwe by-election‚ he asked counsel that should the highest court accept it was impractical to require all voters to have addresses‚ an interim remedy could not be crafted for the coming elections.
In the same vein‚ the court could also make an order to ensure that “come 2019‚ we have a common voters’ roll that complies with (section) 16(3)‚ accepting that some people simply do not have addresses”.
The dispute plunged the Electoral Authority of SA (IEC) into a crisis‚ with its credibility taking a knock and raising questions about the validity of prior elections.
The IEC approached the highest court after the Electoral Court ruled that by-elections due to take place in six Tlokwe wards two months ago should be postponed because the electoral authority had not complied with a requirement that the voters’ roll contain the addresses of registered voters.
The IEC has argued that‚ should the judgment stand‚ 12 million voters will be disenfranchised and it would take until 2020 to comply with the ruling.
The core legal question in the case is whether the IEC has a duty to make sure that the roll has the address of every voter on it who has a formal address.
The IEC maintains its duty to obtain and keep addresses applies only to voters who registered after December 2003‚ when an amendment to the Electoral Act came into effect.
Wim Trengove, SC‚ counsel for the IEC‚ said the effect of the Electoral Court’s judgment was that a voter whose address was not on the roll would not be able to vote.
Andre Bosman SC‚ counsel for the Tlokwe independent candidates‚ said the IEC needed to do what it had to do to ensure every person on the voters roll had an address recorded.
Recent voter-registration drives showed 1.4 million people could be registered over two weekends – this should enable the IEC to regi-ster 12 million prospective voters in a month‚ he said.
However‚ he would not oppose a court-crafted remedy that was just and equitable, Bosman said in response to Justice Edwin Cameron and Justice Mogoeng’s questions.
Muzi Sikhakhane, SC‚ for the Minister of Cooperative Governance and Traditional Affairs‚ suggested that the court suspend section 16 (3) of the Electoral Act to deal with the IEC’s conundrum.
Anton Katz, SC‚ counsel for the DA‚ said the party would not oppose an interim solution along the lines proposed by Justice Mogoeng.
Kemp J Kemp, SC‚ counsel for the IFP‚ said everyone wanted the elections to take place.
But any order fashioned by the court should “ameliorate the fact that there has not been full compliance”.
David Kham‚ spokesman for the Tlokwe independent candidates‚ said: “In our view‚ the IEC is still capable of handling free and fair elections.”
“We are content with that.”
Judgment is reserved.
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