Picture: BLOOMBERG/WALDO SWIEGERS
Picture: BLOOMBERG/WALDO SWIEGERS

As if the judiciary was not under enough pressure with outgoing chief justice Mogoeng Mogoeng on long leave, five Constitutional Court posts becoming vacant in October and the head of the Western Cape High Court, John Hlophe, facing impeachment.

The courts have now been tasked with deciding key aspects of the 2021 local government election, plunging them into a controversy that could unnecessarily bring into question their credibility at a crucial time for SA’s democracy.

Late on Tuesday, the DA lodged cases in the Constitutional Court and the Electoral Court challenging the reopening of registration for local government candidates. Both courts are now tasked with deciding matters that straddle the line between law and politics, which is  precarious legal terrain.

Friday’s apex court ruling paved the way for the Electoral Commission of SA (IEC) to register would-be candidates after the original cut-off date, which threw the ANC a lifeline and outraged some of its opponents. Now, 911 independent figures are among the 77,970 candidates registered and unless legal threats to the IEC’s decision prevail, this figure will rise.

On Monday, the IEC shunned some political parties’ view that the Constitutional Court order does not allow for reopening candidate nominations. The IEC took legal advice that “amending the timetable to reopen nominations is reasonably necessary in the circumstances”, which, in its view, falls within what the apex court order allows.

A week earlier, the IEC had rejected the ANC’s call to reopen the nomination process but made an about-turn based on the Constitutional Court order, something that President Cyril Ramaphosa welcomed. He asserted it was the “right thing to do to deepen democracy”.

Jump hurdles

What has gone largely unnoticed is that the IEC, which is a chapter 9 institution that as a matter of course must run local government elections every five years, sought rescue from the apex court, without first approaching parliament about running local polls during a pandemic.

The IEC’s move demonstrates that, when faced with a political dilemma, players often head to the courts, before exhausting other remedies. That the IEC did not seek parliament’s help suggests doubt in its process. Probably, it would have taken longer to jump hurdles in parliament than seek an urgent audience with the top court.

Chapter 9 institutions are creatures of statute intended to strengthen democracy. It is incredible that, after running a panel that made findings that were not legally binding, the IEC approached the apex court hoping to delay local polls until early 2022. On being denied, the IEC read the court’s order as allowing yet another round of candidate registrations, which disproportionately benefits the tardy ANC.

This is not an instance of political parties “running” to the courts, though that has — of course — happened before.

The highest court’s ruling was the product of a majority, but the identity of the justices who concurred with that order and the names of those who disagreed are unknown. The logic that led to the ruling is also a mystery as the reasons were not provided. These insights are essential. Their absence in such a fraught political climate is irrational, unfair and unreasonable on the people of SA, millions of whom are set to vote in the upcoming polls.

SA is a constitutional democracy, but it runs the risk of only carrying the title notionally. Countries including Hungary and Zimbabwe have the veneer of democracy but lack its function. Brazil is at risk of going the same way. Just this week, the world was treated to the sight of President Jair Bolsonaro attacking the country’s Supreme Court and casting doubt on the integrity of elections planned for 2022. Some are talking about a coup in the making. 

If populism overtakes the rule of law and too many actors in public affairs scurry to the courts as their first remedy, it risks politicising the courts and making “constitutional democracy” ring increasingly hollow.

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