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The decision by the Electoral Commission of SA (IEC) to reopen candidate registration is a rational one and probably in keeping with the Constitutional Court’s order that the election be proclaimed again and voter registration be held.

It can only be said “probably” in keeping with what the court intended because until we see the reasons outlining its thinking, we do not know for certain. We will also only know for certain once the matter is argued in court, which it will be if the DA’s plans to interdict the IEC go ahead.

But it is obvious that on getting the order the IEC had to act and could not afford to wait for the full judgment. Several days later that has still not emerged. The choice made by the IEC is the safest and most inclusive option. As we know and were recently reminded by the Constitutional Court itself, every South African over 18 has the right to vote and the right to stand for election.

It was the fact that the Electoral Act did not make provision for this second right (it only caters for parties to stand for election) that caused it to declare the act unconstitutional in June 2020. Parliament has now been given the task of rectifying the Electoral Act to provide for individuals to stand as well.

It is therefore rational that if new people register to vote they should be allowed to stand for election too. This is the simple reasoning that President Cyril Ramaphosa applied in welcoming the IEC decision.

But while we agree, it is not actually that simple. The Constitutional Court order had some ambiguous clauses, to say the least. The most confusing one is that which reads that the current electoral timetable published on August 4 “shall remain applicable ... save that the commission must publish such amendments to the current timetable as may be reasonably necessary”.

Caused difficulty

The IEC has determined that it is reasonably necessary to reopen candidate registration if voter registration is reopened. The DA contends in its public statements — we have not yet seen its papers — that all parties had an equal opportunity to submit their candidate lists by the deadlines that were known well in advance. While the DA and others did succeed in doing so, the ANC and others did not. So it is not reasonable to reopen candidate registration.

The other clause that has caused difficulty is that in which the court explicitly says that the EFF’s conditional plea to reopen the lists is dismissed. This, the IEC has taken to mean, refers only to a particular reopening of the candidates’ list in isolation of the rest of the process. It does not mean that lists cannot be reopened if the timetable as a whole changes.

It is imperative that these be clarified, if not by the Constitutional Court in its full judgment then by whatever court the DA approaches. The lack of clarity and ambiguity has already caused the DA’s federal chair Helen Zille to make reckless allegations about the independence of the apex court and the IEC, based on nothing more than her “suspicions”. It would have been more responsible and in the interests of democracy to await the resolution of these ambiguities before throwing dirt at the entire process.

It is also disturbing that the IEC did not anticipate that its plea for the election to be postponed would not be granted, particularly since it had not done the preparations required by law and held an accessible in-person voter registration process.

As it was widely speculated by legal minds, there was scant chance of the court doing so as it lacks the power to change the constitution. The IEC should have anticipated this when it postponed two voter registration weekends due to the Covid-19 pandemic.

It did not and now there will be an unprecedented scramble. Elections need to be carefully planned down to the counting of the last ballot paper. The IEC needs to up its game if it is to deliver. SA cannot afford a botched election.


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