Picture: EPA/KEVIN SUTHERLAND
Picture: EPA/KEVIN SUTHERLAND

A potentially close electoral battle in the 2019 general election has been put forward by the DA as a reason the Electoral Commission of SA (IEC) should not be granted an extension of the Constitutional Court-imposed deadline to fix the voters rolls.

Granting the IEC the extension could adversely affect the legitimacy of the country’s constitutional democracy, the DA argued in court papers.

The DA is among the parties opposing the IEC’s application to the Constitutional Court for an extension of the court-imposed deadline to obtain addresses for citizens on the voters roll by the end of June 2018.

The IEC has asked the Constitutional Court for an extension of a further 17 months — from June 30 to November 29 2019 — to comply with an earlier order from the same court on fixing the voters roll. If the IEC is unable to complete the roll, it may have to invoke sections 11 and 12 of the Electoral Act as well as regulations that would result in about 1.3-million voters being removed from the roll.

The IEC cautioned in its application that failing to extend the deadline could open the 2019 national election to legal challenges. The court has granted the IEC an extension to September and is set to hear arguments on the 17-month extension in August.

In an affidavit to the Constitutional Court, the DA’s Mike Moriarty, who represents the official opposition on the IEC’s party liaison committee, argues that the IEC’s application for an extension is simply aimed at "immunising" the commission from potential court challenges to the outcome of the election.

The invalidity and unconstitutionality of the voters roll — as ruled by the Constitutional Court — would not have been remedied, but the commission would be spared from legal challenge.

He argued that this could have an effect on whether the election is indeed free and fair, particularly in provinces where the race between political parties is expected to be a close one.

"By way of example, it is conceivable that a particular party may win a majority in a particular province by a handful of votes in 2019. In such an instance, the number and extent of any incorrectly registered voters will be highly material to whether the elections are free and fair," he said.

In 2016, the Constitutional Court held that the failure to compile a voters roll with available addresses was inconsistent with the Constitution and invalid, but the declaration of invalidity was suspended until June 30 2018.

In its papers, the IEC says that should people be removed from the roll, "there is a very real chance that parties dissatisfied with the 2019 electoral results will seek to challenge the outcome".

Moriarty also argued that it was clear in November 2017 that the IEC was battling to meet the June deadline, yet it only applied for the extension a few weeks before that date.

"The effect of this delay is to place this court, the other parties to this litigation and the electorate in general in an invidious position, in that, because of the timeframes…, there is little alternative except for an extension of time to be granted, with the only question remaining being the length of that extension," he said.

The IFP has also opposed the IEC’s bid for the extension.

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