The Committee met virtually with the Electoral Commission (IEC) to receive a briefing on the implications of the Moseneke inquiry report.
The IEC had appointed the inquiry to assess the likelihood that local government elections held in October would be free and fair. It reported that it had instituted the inquiry only after encountering irremediable disagreement among political parties. The inquiry had concluded that it was not reasonably possible or likely that local elections in October would be free and fair, as required by the Constitution. Although the elections were scheduled for a period in which low COVID-19 transmission was projected, the COVID-19 regulations had significantly restricted the ability of political parties to prepare for elections. The inquiry recommended postponing the elections until no later than February 2022, by which time the Department of Health expected to have immunised more than 40 million people and to have achieved community immunity against COVID-19.
The Moseneke inquiry had also found that there were only two ways to effect such a postponement to the local elections. The first option involved amending the Constitution’s founding values, and would therefore require a super-majority of 75% in the National Assembly and the support of at least six provinces. The IEC viewed a constitutional amendment as disproportionate, given the short-term nature of the challenges, and as impractical, given the timeframe. The second option was for the IEC to apply to a court of competent jurisdiction to seek judicial authorisation for the postponement, making the case that an extension was warranted by exceptional circumstances.
The IEC had accepted the Moseneke report and would seek to postpone local elections by the second method. It planned to submit an urgent application to the Constitutional Court by 6 August. It had also postponed the upcoming voter registration weekend (31 July to 1 August) because of the third wave of COVID-19 infections.
The Moseneke report contained 22 other recommendations for augmenting the quality and safety of local elections in February. The IEC would implement some of those recommendations within its legal and financial constraints, and was applying to Treasury for additional funding. One of the report’s recommendations – the implementation of electronic voting – might require parliamentary involvement, but would not be considered until after the elections.
While some Members welcomed the Moseneke report and the IEC’s response, others were wary of deviating from the Constitution without an unassailable justification for doing so. The Committee ultimately decided to seek legal advice before considering whether to support the IEC’s decision and how to participate in the Constitutional Court process.
Members pushed the IEC to define the threshold level of immunisation and campaigning activity at which elections would be considered free and fair. They worried about the possibility that there would be no material improvements by February – either because the pace of vaccination was insufficient or because the risk of further COVID-19 waves had not been accounted for – and about the possibility that further postponements would be sought. There was multi-partisan agreement on the urgent need for a clear electoral timetable, which would allow political parties to prepare appropriately, and to that end Members asked for a timeline for the Constitutional Court process. Some Members questioned whether it had been prudent to announce and prepare for the October elections while the Moseneke inquiry – and now the court process – was ongoing, though the IEC insisted that it was lawful and even legally obligatory for it to have undertaken the processes in parallel.
Members also asked about the IEC’s online voter registration platform, about its readiness to hold the elections and registration weekend sooner than February if necessary, and about the COVID-19 safety protocols it planned to implement and why those protocols were not sufficient to guarantee the safety of elections in October.
The Committee also considered the draft programme for its oversight visit next week, during which it would inspect Home Affairs offices affected by looting and vandalism in KwaZulu-Natal and Gauteng.
Election of Acting Chairperson
The Committee secretary said that Adv B Bongo (ANC) was not present. The Committee therefore had to elect an acting chairperson in line with National Assembly (NA) rule 159.
Mr K Pillay (ANC) nominated Mr M Chabane (ANC).
Ms M Molekwa (ANC) seconded the nomination.
Mr Chabane was elected, unopposed, acting chairperson.
Opening remarks and apologies
The Acting Chairperson said that Adv Bongo had just been released from hospital. He was suffering from COVID-19-related illness but was recovering well, and the Committee wished him a speedy recovery. Members’ attendance during Parliament’s constituency period was appreciated – it reflected their dedication to serving the people of the country.
The Acting Chairperson thanked the security cluster for their work in restoring stability after the recent unrest in KwaZulu-Natal and Gauteng, and appreciated the people who had stood firm in opposition to the unrest and looting. The Committee extended its condolences to the families of those who had died. The Department of Home Affairs (DHA) had not been spared in the unrest, and service delivery had been negatively affected. Some DHA offices had been vandalised and others had been unable to render services. Moreover, the COVID-19 pandemic continued, and he appreciated government’s continuous efforts to curb the spread of the virus. He hoped that people would continue to volunteer to be vaccinated, and he was sure that the leaders of the Electoral Commission (IEC) had already volunteered.
He said that the Committee should affirm its collective appreciation for the IEC’s good work in preparing to deliver free and fair local government elections. The IEC had been attacked from some quarters for launching the elections while the Moseneke inquiry was still ongoing. However, the IEC’s decision to demonstrate its readiness had been correct, especially since legislation required the IEC to prepare for elections in this way. Members would recall that the IEC had previously briefed the Committee on its preparations. The IEC had carefully navigated the process, appointing former Deputy Chief Justice Dikgang Moseneke to ascertain whether the IEC could conduct free and fair elections on 27 October. The Committee supported the process that the IEC had taken – it showed careful consideration on the path to strengthening the country’s democracy.
He said that the Committee had invited the IEC to provide a briefing about the Moseneke inquiry, which had since been concluded and the report of which the IEC had considered. The briefing would cover the process that the IEC planned to take going forward, including whether it planned to approach the Electoral Court or the Constitutional Court. The IEC would presumably also discuss its voter registration efforts and any legislation that it foresaw the need to introduce in Parliament. He appreciated the work of all political parties, civil society organisations, and other stakeholders who had contributed to the Moseneke inquiry.
The Acting Chairperson asked the Committee secretariat whether there were any apologies.
The Committee secretary replied that he had received apologies from Ms M Modise (ANC), who was attending a security cluster meeting, and Ms L Tito (EFF). Ms L van der Merwe (IFP) had indicated that she was currently travelling from Durban to Cape Town, but would join the meeting around 11 o’clock. In her absence, the meeting would be attended by the Chief Whip of the IFP and by the IFP’s advocate. Finally, Ms T Legwase (ANC) was present but would need to leave in thirty-five minutes.
Opening remarks by the Minister and IEC Chairperson
Dr Aaron Motsoaledi, Minister of Home Affairs, said that he was happy to see Members again after such a long time. He suspected that the meeting would not take long, because many issues had already been discussed publicly during the IEC’s press conference. Deputy Minister Njabulo Nzuza would not be able to attend the meeting, and he was not sure whether the DHA Director-General was present. When meetings concerned IEC matters, he usually attended at the political level without departmental managers, because the IEC did not really report to DHA managers.
Mr Glen Mashini, Chairperson, IEC, said that the IEC appreciated the opportunity to update Members on the local government elections. On 20 May, the IEC had appointed Justice Moseneke to assess whether the current conditions were conducive to holding free and fair elections. This had occurred after the IEC had engaged with political stakeholders, who had been unable to reach a consensus. The IEC understood the complexity of the matter, and it had been fortunate to secure the expertise of Justice Moseneke. Justice Moseneke had surveyed considerations which were clearly outlined in his report, which had been broadly canvassed with all stakeholders, and which ranged from legal and constitutional matters, to social and political issues, to health, administrative, and practical concerns. In addition, Justice Moseneke had made recommendations regarding additional initiatives and measures that could be implemented to augment the credibility and safety of the elections.
Mr Mashini said that the inquiry had been pursued in line with section 14(4) of the Electoral Commission Act (ECA), which provided that the IEC “may, if it deems necessary, publish a report on the likelihood or otherwise that it will be able to ensure that any pending election will be free and fair.” The inquiry could not have been conducted sooner, because of the unpredictability of the conditions of the COVID-19 pandemic – even experts were unable to confidently predict the course of the pandemic. Justice Moseneke’s report had been finalised within about 61 days. The IEC had immediately released the report to the public, in the interests of transparency, and then had taken time to study it. On 22 July, the IEC had met with the national Party Liaison Committee (PLC) to deliberate. Thereafter, on the same day, the IEC had announced that it had accepted the report and the report’s recommendations, which obviously had significant consequences for local government.
Mr Mashini said that the IEC was dealing with an extraordinary and unprecedented situation with “unchartered constitutional implications.” It was still consulting with its counsel and, as required by law, with the Minister of Cooperative Governance and Traditional Affairs (COGTA). It was important for Members to understand that there were some issues that the IEC could not speak to – not because it did not want to, but because the situation was “very fluid” and those issues had not been finalised. The IEC had to be cautious – those present could not “take the law into our own hands,” and they had to consider the legal implications of anything they said publicly.
Mr Mashini introduced the Chief Electoral Officer and his team, who would present the briefing.
Mr Sy Mamabola, Chief Electoral Officer, IEC, handed over to his deputy to present.
IEC briefing: implications of the Moseneke inquiry report into free and fair local government elections during the COVID-19 pandemic
Mr Masego Sheburi, Deputy Chief Electoral Officer: Electoral Operations, IEC, presented on behalf of the IEC.
Mr Sheburi said that by mid-2020 the IEC had adopted protocols to minimise the transmission of COVID-19 during elections. Those protocols had been implemented in no fewer than 150 by-elections between November 2020 and May 2021. However, roughly since January, political parties who belonged to the PLC had been debating the feasibility of holding local government elections in 2021. Parties’ views had crystallised into two “diametrically opposed” views. Some parties held that the elections should proceed as scheduled, as required by the regularity provision in the Constitution; others held that the elections should be postponed, because elections held at the scheduled date would not be free and fair.
Mr Sheburi provided background on the appointment of Justice Moseneke and the inquiry’s terms of reference (see slides). From 28 May, the inquiry had invited written submissions – and some oral submissions – from key stakeholders on specific issues. These stakeholders included medical experts, election monitoring bodies, political parties, and members of the public, and their submissions were publicly available on the IEC’s website. The inquiry had also studied international electoral practices during the pandemic.
Findings of the report
Mr Sheburi said that during PLC discussions and oral submissions to the inquiry, stakeholders had tended to elevate certain constitutional provisions over others to advance their own views. Yet the inquiry had concluded that the regularity of elections was complementary to the fairness and freeness of elections – the Constitution did not create an optional binary between these two obligations, and the corresponding rights should not be “pitted against each other.”
The inquiry had concluded that it was not reasonably possible or likely that the local government elections scheduled for October 2021 would be held in a free and fair manner, as required by the Constitution. Restrictions on the ability of candidates and parties to campaign would limit their right to contest elections, as well as the right of the electorate to vote on an informed basis. More specifically, the inquiry found that:
- At the time of the report’s publication, the country was under alert level four, which restricted movement, gatherings, and political activities;
- The alert level four regulations had only been due for review on 25 July, only six days before the scheduled registration weekend; and
- COVID-19 regulations might constrain the activities of the IEC.
This conclusion was also informed by submissions by scientists and health experts, who had agreed on several points, including that:
- At the time of oral submissions, South Africa was amid a third wave of infections;
- In the absence of a new variant, transmission of COVID-19 would be low in October 2021;
- It would not be possible to achieve community immunity by October 2021;
- Election-related gatherings, if held when transmission rates were high, would become “seeding events” and trigger another wave of infections; and
- More people would be vaccinated in February 2022 than in October 2021, so elections in February would result in fewer deaths than elections in October.
Mr Sheburi added that while transmissions would be low in October, elections did not just involve Election Day. There were other pre-election activities that were crucial to the freeness and fairness of elections. As the situation stood, the IEC had not held a registration weekend, had been constrained in its activities under level four regulations, and had observed that the regulations had limited the ability of political parties to organise and to hold meetings in order to mobilise and develop their candidate lists.
The inquiry had concluded that the elections should be deferred to February 2022 – the earliest date which would be safe. The rationale for this was:
- To prevent a slippery slope that might undermine the democratic project;
- To avoid prolonging the stay of incumbents in office;
- To allow newly elected councils to approve their annual budgets timeously.
Finally, the inquiry had concluded that there were only two ways to effect a postponement. The first option was to amend section 1(d) and section 159(2) of the Constitution. Because section 1(d) established a founding value, such an amendment would require a super-majority of 75% of the NA and the support of at least six provinces. Yet the Moseneke report cautioned against amending the Constitution to address temporary difficulties. Alternatively, a court of competent jurisdiction could handle the matter. It would then be the IEC’s responsibility to make the case that the elections would be postponed to a finite date and that the extension was warranted by compelling and exceptional circumstances. The Moseneke report urged that if the IEC accepted the inquiry’s outcome, it should urgently to approach a court of competent jurisdiction to seek an order to defer the local government elections.
The report also made recommendations on how to hold free, fair, and safe elections in February. These included recommendations for campaigning, voter registration, voter education, election observation, and alternative methods of voting (see slides).
IEC decision and implications
The IEC had accepted the report, and accordingly the IEC:
- Had postponed the upcoming registration weekend (31 July to 1 August);
- Would next week launch an application to seek judicial authorisation to conduct the local government elections outside the constitutionally prescribed timeframe; and
- Would implement the report’s other recommendations, within the bounds of current legal prescripts and its financial means.
Mr Sheburi clarified that the registration weekend had been postponed not because the IEC planned to go to court, but because the country was still amid a third wave of COVID-19 infections.
Mr M Tshwaku (EFF) said that the EFF had already welcomed the Moseneke report. The report confirmed the position that the EFF had always held. Decisions had to be based on science and “material conditions.” The EFF had repeatedly warned the IEC about what would happen if elections proceeded – it had seen the science and the projections for rising infections. It had also told the IEC that elections fundamentally had to be free and fair. There was a literature about what exactly freeness and fairness entailed. Yet, in practice, the country had been under lockdown, and politicians had been unable to meet their constituencies face-to-face. Face-to-face meetings were crucial to a party like the EFF, whose constituency was working class and poor and often did not have mobile data. The EFF had wards where it had to choose one candidate from 1 000 members, and candidates had to be chosen through a democratic process, to prevent instability in the party. Yet COVID-19 regulations prevented the party from meeting to choose candidates.
Mr Tshwaku said that the EFF welcomed the consultation between the IEC and political parties through the national PLC. This consultation process had sought to reach agreement among parties about the elections. However, the EFF had been “surprised” that, during the consultation process, the President had become “excited like a molecule” and had announced the election date. Moreover, he had made this announcement at an ANC event, not in a neutral venue. The EFF found that unacceptable. The announcement had made the EFF uncomfortable, because it suggested that stakeholders were negotiating “in bad faith.” Were they merely playing politics? The EFF did not have an ambition to lead at all costs, including at the cost of people’s lives. Similarly, the elections had been launched even while the Moseneke inquiry was ongoing. This had suggested that the elections were going to happen irrespective of what the inquiry ultimately concluded. One could not be blind to the reality, and decide to implement a plan at all costs. He thought that the launch of the elections constituted wasteful and fruitless expenditure. All stakeholders were navigating the situation together, but it seemed that some individuals were not being open or were not collaborating in good faith.
Mr Tshwaku said that the EFF nonetheless welcomed the Moseneke report, and encouraged the IEC to approach a court to postpone the elections. He also advised the IEC to pay close attention to the science and to what was happening – as President Ramaphosa had said before, one had to “smell the coffee.” The country was in the third wave of a pandemic, and there had been serious problems with the vaccination roll-out. The IEC should monitor the implementation of the roll-out closely. The Moseneke report said that community immunity required vaccinating about 67% of the population – about 40 million people. But it was also important to verify that vaccination was working. After the vaccine had been rolled out, there would be a period in which the regulations would be relaxed, and it would then be important to look at the mortality rate. If the mortality rate declined, that meant vaccination was working. Moreover, at this rate, would everybody be vaccinated by October? Ideally, everybody should be vaccinated before then, to allow time to verify the vaccine’s effectiveness in reducing mortality. The IEC needed to use epidemiological expertise to monitor the progress of the pandemic and the vaccination programme. It should meet with epidemiologists or even have epidemiologists in its offices.
Mr Tshwaku said that the IEC had to release a draft timeline. If elections had to be held before February, parties had to be given sufficient “political space” to prepare. The issue of political space was not always given sufficient attention. Parties had to have the space and time to talk to the people.
Finally, Mr Tshwaku said that he agreed with the recommendation of the Moseneke report that the Independent Communications Authority of South Africa (ICASA) should ensure that it distributed broadcasting opportunities equally among political parties. A party might be given airtime only at midnight, which meant that it did not have the opportunity to reach people. The IEC should also address that issue.
Because the Acting Chairperson had been attempting to cut short his contribution, Mr Tshwaku joked that he would be recording the length of time for which other Members spoke.
The Acting Chairperson asked Mr Tshwaku whether he was disrupting the meeting.
Mr Tshwaku replied that Members should be allowed to speak at length on this topic, which was “sensitive.” When the Chairperson “disturbed” him while he was speaking, it interrupted his line of thought.
The Chairperson asked again whether Mr Tshwaku was disrupting the meeting.
Mr Tshwaku replied that he was not. He was raising his concern that the Chairperson had “chased” him while he was attempting to direct the IEC on critical issues.
The Acting Chairperson said that as Members knew, the Committee worked under time constraints. He did not intend to marginalise anybody in the discussion.
Mr A Roos (DA) said that the terms of reference for the Moseneke inquiry concerned whether elections on 27 October would be free and fair, whether they could possibly be free and fair, and what could be done to make free and fair elections happen on that date. Currently, the “big question mark” was the rationale behind the IEC’s decision to seek a postponement. This would entail a major request to various stakeholders, asking them to override a fundamental constitutional right and imperative. The Moseneke report discussed how the inquiry had sought to find an objective and dependable standard to measure whether elections were free and fair – but he had not seen such a standard defined and invoked. Egypt and Ghana were cited as countries where successful elections had been held with COVID-19 protocols observed. The Committee needed clarity on this and other issues. The elections could not be postponed indefinitely because of COVID-19 – there would always be some “element of danger.”
Mr Roos said that the report spoke of the elections as a “superspreader” event. Yet, even at alert level four, every day millions of people in South Africa queued for transport, for the shops, and for work. So on what basis were elections a superspreader event, provided proper COVID-19 protocols were in place? Did the report put forward measures to prevent the elections from becoming a superspreader? Did the IEC see those measures as insufficient and, if so, what additional measures did it plan to put in place? This argument – that a superspreader event would arise from people standing in a voting queue, 1.5 metres apart, in a controlled environment – should be “put to bed.”
Mr Roos said that the Electoral Institute for Sustainable Democracy in Africa, which monitored elections, had recommended that the IEC and Parliament should develop and publish an agreement. That agreement should clearly set out the rationale for postponement, the period for the transitionary mechanisms, the time limits, and a potential date for the elections. Some key questions were outstanding that were needed to develop such an agreement. First, the Moseneke report was not clear about campaigning. What constituted a sufficient opportunity to campaign? How could the mass engagement that was being requested be facilitated? If elections were postponed until parties could hold mass rallies that filled stadiums, they might be postponed for years – in that case, the February deadline was not at all feasible. Second, the report was not clear about immunity. What constituted sufficient immunity? Was there a specific proportion of the population that needed to be vaccinated? The report mentioned the number of vaccinations required for community immunity, and also said that there would be reasonable immunity by February. Was February a sort of cut-off date, with a definitive intention to hold elections in February and to vaccinate as many people as possible by then? Or was the standard a particular vaccination rate, which was expected to be reached in February? If the latter, was there any precedent, anywhere in the world, for requiring community immunity before going ahead with an election? Third, the waves of infections were important for scheduling. There was general consensus that 27 October would have been the safest possible date. But there seemed to be uncertainty about at what stage in a wave it was safe to hold elections or election-related activities, and about at what time it was feasible to make such a forecast. The guidelines should be guided by science, but they also had to be provided to the Committee.
Mr Roos asked about the IEC’s readiness to hold the elections. First, what was the status and projected timeline for the IEC’s application to court? Where was the IEC specifically on that? Had anybody been briefed? Second, he agreed with Mr Tshwaku that the IEC had to provide an election timetable more generally. What was the general plan for elections, either in February or – if the postponement measures failed – in October? What scenarios was the IEC looking at? In this regard, it was also important to consider the projected waves of infections, since the risks varied at different stages in a wave. How was the IEC considering those risks in developing an election timetable? Apart from that, a timetable needed to decide and schedule a fair period for campaigning and for registration, and then schedule the election date and all the processes in-between.
Mr Roos asked what the current timetable was for the registration weekend. Mr Sheburi had said that the planned registration weekend had been postponed because of the third wave. By now, however, there should be some scientific indication of when the third wave would end, and a date for registration should have been selected on that basis. Was the IEC truly ready for the registration period? Had the voter management devices (VMD) been rolled out? Had all the staff been appointed and trained to use the VMD?
Mr Roos asked for an update about the online registration platform, and especially about the progress made in correcting the issues that had arisen with the platform.
Mr Roos said that the Moseneke report mentioned that funding for personal protective equipment (PPE) would have to be obtained from the national Treasury. He believed that the PPE fund would amount to almost R200 million. What was the status of this request to Treasury?
Mr Roos suggested that the Committee should seek legal advice before considering whether to support the IEC’s decision to accept the Moseneke report, and especially its recommendation to seek to deviate from a constitutionally obligatory deadline.
Ms A Khanyile (DA) said that the DA had always been ready for the upcoming local government elections. The DA had held its national meeting virtually even before the inquiry had taken place. It had been, and remained, ready for the elections.
Ms Khanyile said that during the initial COVID-19 outbreak in 2020, elections – including by-elections – had obviously not been held. However, when infections had begun to decrease, the IEC had held successful by-elections. What measures did the IEC have in place to ensure that it would hold safe elections in February, if that was indeed when the elections were held?
Ms Khanyile asked how it would be handled if the need for a further postponement arose. Would another inquiry take place?
Ms Khanyile said that other African countries had held elections in 2021, without seeking postponements. What were the main circumstances that, in the South African case, justified a postponement?
Ms Khanyile said that there had been a technical glitch with the online registration platform announced on 14 July. Had that glitch been attended to? What method was the IEC using to verify the voters? How did the numbers from online registration compare to the numbers from physical registration weekends held in the past?
Ms Molekwa said that the report covered the most important issues, and that she thought the IEC had been “wise” to appoint Justice Moseneke to investigate whether the elections would be free and fair. She appreciated the IEC’s efforts. The IEC had launched online voter registration, and she appreciated its pro-active approach – it was continuing with election work irrespective of the challenging circumstances created by the pandemic. However, though the online registration process might seem simple to Members, there would be people who could not understand it. Were there any plans for online voter registration education, especially for first-time voters?
Ms Molekwa asked whether there was any timeframe set for consultation processes that would take place if the postponement was sought by the alternative route of constitutional amendments.
Mr Pillay said that the prelude to all such discussions and inquiries was a commitment to free and fair elections. Ultimately, South Africans, parliamentarians, and government wanted to ensure that the elections were free and fair. Elections were large-scale, community-based events that thrived on participation and on transparency to ensure credibility. The right to vote was dear and arose directly from the Constitution’s founding values. Since 1994, South Africa had successfully held free and fair elections. But the COVID-19 pandemic carried risks for the integrity of the elections. One such risk was low voter turn-out.
Mr Pillay noted that the IEC had resolved to urgently brief senior counsel to launch a court application to seek judicial authorisation for a postponement. How far along was this process? Ultimately, this would determine the implementation of the Moseneke report’s recommendations. He also congratulated and applauded the IEC and Justice Moseneke on the report.
The Acting Chairperson invited the delegates to respond. He said that the responses should deal directly with Members’ questions and recommendations.
Mr Mashini said that Mr Mamabola and Mr Sheburi could handle the operational questions, while the commissioners could handle the broader strategic questions. He thanked the Members for the constructive input, but stressed again that the IEC had to be cautious in responding to some questions, since the matter would be going to court.
Parallel election and inquiry processes
Mr Mosotho Moepya, Commissioner, IEC, said that the IEC was traversing “very difficult terrain.” The COVID-19 pandemic had created uncertainty even at a scientific level. Yet the IEC’s constitutional obligations were clear and non-negotiable. Despite the difficulties it faced, the IEC could not fail to proceed with an election that, given the Constitution’s regularity provision, had to happen. In the circumstances, as Members knew, the IEC had decided to commission the Moseneke inquiry, because stakeholders held “diametrically opposed” views on the local government elections. It had studied the report and adopted it, as Mr Sheburi had discussed in his presentation. The IEC was very clear in what it was going to request from the court. However, the point was that the IEC did not know what remedies it would ultimately be granted. In the meantime, it had to do the things it was constitutionally mandated to do. It had to proceed with its preparations for the elections, because not to do so would be to improperly pre-empt the outcome of the court process. He thought that the IEC had explained this to the PLC and to the Committee. This was the dilemma that the IEC faced, and it believed that it had to proceed with preparations. It was this dilemma that explained why the election preparations had been launched even while the IEC was currently working “at speed” to deal with the recommendations of the Moseneke report. As Mr Mamabola would discuss, the IEC had sought, even during the height of the current third wave of infections, to prepare itself for a registration weekend.
Ms Janet Love, Vice Chairperson, IEC, said that she thought that the rest of Mr Tshwaku’s comments were his opinions, rather than questions for the IEC. However, she added that just as the IEC could not presume that the court would make any particular decision, the IEC could not presume that it had the support of political parties. It was important to consider new timetables and so on – the plan that would be put in place were the court willing to entertain the IEC’s application – but the IEC was also appealing to all political parties.
Rationale for postponement
Mr Mamabola said that February presented the safest and earliest opportunity to hold elections. This was the “essential thesis” and core rationale of the Moseneke report’s recommendations, and it was based on epidemiological projections and the progress of the national vaccination programme. The report’s findings about the importance of the vaccination rate were informed by international experience. For example, in the United Kingdom, the high vaccination rate had reduced the severity of disease, the hospitalisation rate, and the mortality rate – despite the high transmissibility of the delta variant. The IEC was not saying that there would not be any COVID-19 transmission in February – there might well be. Indeed, there might be another wave of infections in February. The fundamental difference, however, was that the country would have reached population immunity by then. That projection was based on submissions by the Director-General of the Department of Health (DOH). The IEC was not responsible for the vaccination effort, which was led by DOH, the experts in that area. So the IEC was dependent on DOH’s projections of vaccination levels. DOH said that it would have reached the crucial figure – 40 million vaccinated persons – by February.
Mr Moepya said that the Moseneke report addressed Ms Khanyile’s question about why the IEC was “retreating” when other African countries had proceeded with elections. As the report detailed, there had been 42 elections scheduled in African countries, 14 of which had been postponed and 28 of which had proceeded. However, South Africa differed from some of these countries in its constitutional framework. In South Africa, the Constitution was clear that elections had to be both regular and free and fair. That was the challenge, and that was why it was important for the IEC to deal “very carefully” with the local elections. For the IEC to commission a report under section 14(4) of the ECA had not been a simple decision. The IEC had reflected very carefully. Indeed, the difficulty was reflected in the recommendations of the report, and in the fact that “for once” the political parties had had diametrically opposed views.
Mr Moepya said that the challenges persisted. There would not be a period in the foreseeable future in which there were no COVID-19 cases. Even if the elections were held in February, the situation would resemble the situation in Europe earlier that year. European soccer games had been held, with spectators in the stadiums, because vaccination levels were higher and the countries appeared to have reached community immunity.
Minister Motsoaledi said that he had heard people using the phrase “zero mortality” during the current meeting. Because the proceedings were recorded, he wanted to eliminate any impression that any participant in a parliamentary committee believed that zero mortality could ever be achieved, by way of any vaccination rate. Zero mortality did not exist anywhere on earth. Anybody who had been born would eventually die. So the vaccine reduced the risk of hospitalisation and death due to COVID-19-related illness – it did not reduce the risk to zero.
Minister Motsoaledi said that it was good to compare South Africa with other countries, because countries had to learn from each other. Yet as Members made such comparisons, and as they engaged with the IEC briefing and through the PLC, they should accept that the COVID-19 pandemic had affected different countries differently. No country was a mirror image of another. In making international comparisons, one had to keep in mind the differences between the countries under consideration. For example, the most prominent election during the pandemic had been the American elections. Yet, in that election, most people had voted by post, with very few queuing to vote in person. South Africa did not have the ability or capacity to process postal votes. Likewise, Mr Moepya had mentioned that only 14 of 42 African elections had been postponed. But Members should also remember that almost half of the COVID-19-related deaths in Africa had happened in just one country: South Africa. Many African countries had had very few COVID-19-related deaths and therefore had made their decision to proceed with elections under very different circumstances.
Mr Mamabola said that developing an election timetable was not an easy matter. A timetable was needed to provide certainty to stakeholders in their preparations – but, at the same time, the IEC had not yet been granted a court order and could not proceed as though it had. It did not want to create the impression that it considered the case a fait accompli. The IEC would be discussing a draft timetable with the national PLC early next week. After that, it would be able to communicate details.
Mr Mamabola said that the Moseneke report contained a “strong impulse” in favour of avoiding continuous postponements and forestalling a slippery slope. Nobody could promise that there would never be another postponement, but hopefully there would only be one. Nobody knew how long COVID-19 would be a factor, and the country might just have to push through an election at a suboptimal time. Provided 40 million people were vaccinated by the time of the elections, there would be no problem.
Court application and possible constitutional amendment
Mr Mamabola said that the IEC was in the process of finalising its application to the Constitutional Court. It had appointed a team of senior counsel, who were busy drafting the application. As Members could imagine, it was a very complicated application – the IEC was seeking extraordinary relief. The IEC planned to submit the application by 6 August, though it might be sooner than that.
Mr Mamabola said that amending the Constitution was an option, but it was not the IEC’s preferred option. The IEC believed that it was dealing with a short-term challenge, which should not be addressed through a permanent constitutional amendment. Moreover, a constitutional amendment would be impractical in the necessary timeframe, since it would require publication for public comment, as well as votes and super-majorities in both the NA and the NCOP.
Mr Mamabola said that the date of the registration weekend would be determined through the engagements on the election timetable that he had mentioned earlier. The IEC had to present a draft timetable to political parties, discuss it with them, and seek consensus. Thereafter, it could share the timeline with the public.
Mr Mamabola said that the IEC had received delivery of 40 000 VMD units, which were currently in the country and in the IEC’s possession. All the operating software and various applications had been downloaded onto those units. The IEC had trained close to 88% of the staff for the registration weekend. This had not been an easy effort, because the bulk of the training had happened during the third wave of COVID-19 infections. There had been significant disruptions as the IEC staff had themselves been infected. At one point, close to 96 staff members were either infected with COVID-19 or isolating due to exposure to an infected person. Two staff members had also died during that period. The IEC had done its best to “stay the course” through the devastating third wave.
Mr Mamabola said that PPE for the registration weekend had been secured and delivered. What was outstanding was the PPE needed for election day. As he had said, the IEC had received a timeline from the Treasury and would be making a request, which would hopefully be met with assistance.
Online registration platform
Mr Sheburi said that the online registration facility was intended to supplement, not to replace, the existing face-to-face registration options. Therefore there should be no impression that the online registration system marginalised those who did not have access to smartphones or mobile data. As of yesterday, about 33 100 persons had applied to register using the online platform. Most of those applicants were in Gauteng, the Western Cape, the Eastern Cape, and Limpopo, in that order.
To Ms Khanyile’s question about a glitch in the system, Mr Sheburi said that he would not use the word “glitch.” Rather, it was a “safeguard mechanism” intentionally built into the system to ensure that the people who registered were who they claimed to be. The IEC had looked at these features again and had adjusted certain technical things. For example, it had removed the external app used for taking pictures, so that the devices could default to their own settings. With those adjustments, the IEC had seen an improved success rate in attempted applications. The IEC also contacted everybody whose applications had been unsuccessful, to assist them in completing their applications. It was encouraging that applicants’ success rate had significantly increased over the last two days. With the additional measures the IEC was implementing – including contacting those whose applications were unsuccessful – it thought that it should achieve greater numbers next week.
Additional safety measures
Mr Mamabola said that the Moseneke report had made 22 recommendations for additional measures that could be taken to improve the quality and safety of the elections. A broad overview had been provided in the presentation (see slide 14). However, he would outline a few key examples.
Mr Mamabola said that, first, the Moseneke report recommended including an additional day for special votes, so that special votes would take place over three days rather than two. In this way, the IEC could encourage greater uptake of special votes, and thereby “decongest” voting centres on the major election day. This would have huge financial implications, but the IEC would implement it if it received the requisite funds. The IEC was in the process of compiling a budget proposal to be considered as part of the adjustment process, and Treasury had just given the IEC the deadlines for submitting the request.
Mr Mamabola said that the second recommendation of the report was to stagger voters according to their surnames. The IEC had considered this option. However, while it acknowledged the logic of the approach, it believed that it could stagger voters by facilities, instead of staggering them by time. It already had voting centres that could be used in this way, by creating more facilities within a given centre. For example, if the voting centre was a school, voters could be separated between different classrooms, instead of everybody voting in a single classroom. In any case, the IEC’s own analysis showed that most voters voted in the morning, between 7 and 11 a.m.
Mr Mamabola said that the third recommendation was to hold a special campaign to “give life” to, and increase uptake of, the online system. The IEC accepted this recommendation – it wanted to run a more intensive programme to popularise the online system. It was working on such a campaign with its partners, and it would be giving it additional impetus.
Mr Mamabola said that a final example of a recommendation was the report’s proposal to organise two registration weekends, instead of only one. This was a “noble” idea, and the IEC wanted to give people more opportunities to register. However, even if money were made available for this initiative, the IEC thought it impractical. Health experts projected that the period of low COVID-19 transmission would be short, lasting from September to November. That projection assumed that a new variant would not arise and expedite the onset of a fourth wave.
The Acting Chairperson said that he thought it was fair for the IEC to mention that it was embarking on a legal process and therefore had to be cautious in responding to Members’ questions. However, he would still like to know whether there were any legislative amendments which the IEC envisaged as a result of the Moseneke report and which Parliament might have to consider after the Constitutional Case had been decided.
Mr Sheburi replied that the only recommendation that implied legislative amendments was explicitly flagged for the IEC’s future consideration, not for the purposes of the upcoming local elections. The Moseneke report recommended the introduction of electronic voting, which would help to address the kind of difficulties introduced by pandemics in general. Yet election management bodies and election management scholars confirmed that it was not good practice to introduce legislative amendments too close to an election. Doing so could create uncertainty and imperil the legislative process. So the IEC had resolved that it would wait until after the elections to consider any recommendations that required legislative amendments.
The Acting Chairperson said that he thought Mr Tshwaku’s question about the parallel inquiry and election-preparation processes had not received a clear answer.
Mr Mamabola replied that Mr Moepya had responded on this issue. The institution of the inquiry process in terms of section 14(4) of the ECA had not in any way granted the IEC the power to jettison its preparations for the elections. That the Moseneke inquiry was underway had not meant that the preparations should or could have ceased. If the IEC had stopped preparing, that would have implied that the IEC had “pre-decided” the outcome. But, in fact, the IEC had instituted the section 14(4) process with an open mind.
Mr Mamabola said that in addition, Members would recall that the Committee had previously asked why there had been a dearth of public excitement about the elections – why there had been a “lull.” The IEC had launched its campaign to alert South Africans that, in terms of the Constitution, local elections had to happen soon. To that end, a registration weekend had to be held, and that was also announced at the launch. As he had said on previous occasions, he did not believe that the launch had wasted resources. It had been an investment in the democratic project and in the civic education of citizens. It was “immaterial” whether the elections were ultimately held or deferred – citizens still needed to know that the Constitution required an election to be held by 1 November.
Mr Mashini said that the IEC did not want to give the impression that it was “sweeping aside” Mr Tshwaku’s remark that the EFF had been surprised when President Ramaphosa had announced the election date on a party-political platform. The IEC could not answer for President Ramaphosa, but Mr Tshwaku could raise that issue directly through parliamentary processes.
However, Mr Mashini said that the IEC had been in consultation with the Minister, who in turn consulted with Cabinet. The announcement of the elections – who announced the elections, when, and under what circumstances – was decided by the executive. The IEC’s role was to indicate its state of readiness. Therefore it had clearly indicated that it was ready to discharge its statutory obligation to deliver the local government elections in 2020. The IEC was supposed to be ready for the elections, and it had told the country that it was. As he had said in his opening remarks, it was paramount that the IEC did not and would not take the law into its own hands. The IEC was obliged to fulfil the prevailing laws of the country.
Mr Mashini said that the COVID-19 pandemic – and especially the delta variant, which posed additional risks – constituted extraordinary circumstances. After consulting with the political parties, it had been clear to the IEC that it had to pursue the matter through a structured process. So the IEC had taken two routes in parallel – alongside the Moseneke inquiry, it had continued and still continued to fulfil its electoral obligations. Even while it appealed to the court for relief, it could not be seen to have taken the law into its own hands; it still had to follow the law as it currently stood. It would continue to do this until the court made an order authorising it to do otherwise. Perhaps there had been a misunderstanding about the IEC’s intentions in instituting the parallel process. Another misperception created among the public was the view that launching the elections had been fruitless, wasteful, and therefore “reckless.” However, the IEC had done what it believed was lawful. The IEC would leave it to the Auditor General’s audit to evaluate the charge of wastefulness, and it would leave the rest of the debate to the courts, to whom it was now appealing for relief.
Mr Mashini concluded that the current challenge required absolute non-partisanship. Like everybody else, scientists included, the IEC did not have guarantees about some things. As Justice Moseneke had said, the relevant decisions were based on the science of probabilities. Probabilities were not necessarily certainties. The IEC respected the divergence of views, but the “landmines” before the country were a collective challenge, which Members, as elected representative, shared with the IEC.
Minister Motsoaledi said that the issue of the parallel processes had slipped his mind in the first round of discussion. Mr Tshwaku had said that President Ramaphosa had become “excited” about announcing the election dates, and that he should not have made the announcement before the Moseneke inquiry and related processes had been concluded. Yet President Ramaphosa, like everybody else, was enjoined by the Constitution. Specifically, in this case, he was enjoined by section 1(d) of the Constitution, which provided for the regularity of elections, and by section 159(1) of the Constitution, which established municipal terms. President Ramaphosa would have been “amiss” to decline to announce the election dates purely because he felt there was a possibility that those elections might ultimately not take place. In announcing the election dates, he was rightly doing his constitutional duty. If he had not made the announcement, he would have run afoul of the Constitution.
Mr Tshwaku asked whether the IEC could review the ICASA issue to ensure that political parties were given sufficient and desirable airtime. This would ensure that parties did not have to air their advertisements during “the graveyard shift,” and that their message would be heard.
Mr Mamabola replied that the IEC would be writing to ICASA to formally bring the Moseneke report to its attention. It would alert ICASA to the report’s recommendation that more broadcasting slots should be availed to all electoral participants so that broadcasting platforms like radio could be used more widely to reach voters.
Mr Tshwaku said that the issue of opening up the “political space” – in order for parties to campaign – remained central. The IEC was not clearly communicating when the political space would be opened.
Mr Mamabola replied that the IEC wanted all political players to have “maximum opportunity” to sell their political programme and policy platform to the electorate. It would not be in the IEC’s interests for political parties to lack access to the electorate. At the same time, the IEC was not responsible for the Disaster Management Act and for the regulations issued in terms thereof. At best, the IEC could “lobby for” the creation of political space, especially during the low transmission period which the country was now entering. The IEC would pursue the issue through the consultation mechanisms available to it.
Mr Tshwaku said that he wanted a comment from the IEC on his suggestion that it should constantly interact with epidemiologists, epidemiological modellers, and DOH officials. Perhaps there should be daily consultations, and some experts could move into the IEC offices to provide updates and advice.
Mr Mamabola replied that the IEC was in consultation with epidemiologists, and met occasionally with them. He did not think it would be practical to locate them in the IEC office. However, they were available to the IEC whenever it requested data or advice. The IEC used that resource in its decision-making and did not lack access to epidemiological data.
Mr Tshwaku said that he belonged to the national PLC. Communication in the PLC was generally good, with emails being received by members. However, given the current time pressures, the PLC had to be very “open.” The communications platform was key. At one point, the PLC had considered interacting through Whatsapp, though some members had had reservations, including for security reasons. There was sometimes uncertainty about what the plan was, what decisions had been made, and what the IEC was going to do next. Mr Mamabola had said that the IEC would be discussing a draft timetable with the PLC next week. That invitation had not been sent to PLC members yet but the meeting should be held as soon as possible. He also urged the PLC – and any members of the PLC who were present – to consider the issue of the opening of the political space. The draft timetable had to take that issue into account. It was not just about the election date, but also about the preparations that had to take place before then.
Mr Mamabola confirmed that the IEC would discuss the timetable with the PLC in “the not-too-distance future” – before the end of next week. After that, the IEC should be able to disclose more about the timetable.
Mr Tshwaku said that the IEC should monitor the vaccination programme, and should even remind DOH to monitor and verify the vaccine’s efficacy. Even if the vaccination roll-out was quick enough, South Africa should avoid a situation like that in India, where large numbers of people were dying because they had not been vaccinated or because the vaccine had not been efficacious. It had already been seen that there were issues with the Johnson & Johnson vaccine, and he thought that there were developments in the United States suggesting that booster shots were needed for the AstraZeneca vaccine. As the vaccination roll-out was proceeding, it was important to monitor the South African situation and compare it with that of international counterparts. If the country was serious about holding elections, it also needed to procure the Chinese vaccine and the Sputnik vaccine, which had been demonstrated to be “fine.” The country had to avoid a situation in which people had been vaccinated but not adequately immunised to withstand, for example, a new variant of COVID-19.
Mr Mamabola replied that the roll-out and efficacy of vaccines was outside the purview and the control of the IEC. The IEC was “a creature of statute,” with only the powers and functions set out in the relevant legislation. It was mandated to set up voting stations, conduct voting education, run a communication campaign, register parties and candidates, and so on. It was not entitled to work outside its mandate. Yet it could and would interact with DOH and relay Members’ views. It was certainly in the IEC’s interests for a majority of South Africans to be vaccinated and for the incidence of severe illness to be reduced. So the IEC would use its consultation forums to raise Members’ concerns, even when those concerns were not strictly within its purview.
Mr Roos repeated his question about what the IEC thought qualified as a sufficient opportunity to campaign. Insufficient campaigning opportunities had been raised as a major concern in the Moseneke report, but the report did not seem to provide any answers. How should that challenge be overcome? Though much of the discussion was theoretical and based on hypothetical scenarios, he expected the IEC to have given the issue some thought.
Mr Mamabola replied that this issue was covered in the report, and in fact in the submission that he had made on behalf of the IEC. Mr Roos’s question was covered because his question had to be dealt with in the context of a broader question: what was the constitutional standard for free and fair elections? First in that regard was the ability of political parties to communicate with the electorate. An informed political choice was a choice made on the basis of information provided by different political role-players, so it was central that political parties should be able to present their policy programmes to the electorate. Second, free and fair elections involved the right to stand for public office and, if elected, to hold such office. Those section 19 rights were hollow and nugatory unless, as Mr Tshwaru had said, people had the “political space” to have political discussions, to select candidates, and so on. So the issue of political space was at the heart of the constitutional standard for elections. Yet the Constitution did not prescribe how political campaigning should proceed. Circumstances may well require political parties to adjust the manner in which they engaged the electorate – including by moving away from direct, physical forms of campaigning. This was why the Moseneke report recommended that the IEC should engage ICASA to facilitate a greater number of public election broadcasts.
Mr Sheburi added that there was a seminal Constitutional Court judgement which discredited the notion that there was a golden standard for free and fair elections. The Constitutional Court had decided that each case had to be judged on its own merits and in its own context. While there were broad indicators of freeness and fairness, they could not be inflexible and had to respond to the context. COVID-19 had intervened to create a new context which required flexibility in the preparations of the IEC, as an election management body. Equally, however, the new context required flexibility from political parties, as the key contestants in the elections. The standard could not require that free and fair campaigning had to be identical to campaigning as it had occurred in earlier elections. COVID-19 had altered the context, and the standards for free and fair elections had to be applied within that new context.
Mr Roos said that he was not sure that he had understood Mr Mamabola’s earlier response correctly. Mr Mamabola seemed to have said that herd immunity would be a condition for the elections proceeding in February. That would require the vaccination of 40 million people. Yet only about 15.5 million people could be expected to vote – around 25.5 million people were registered, and there had been around 57% turn-out in the last election. Did it make sense to require 40 million people to get vaccinated in order for 15.5 million people to vote?
Mr Mamabola replied that even if only 15 million people cast their ballots, an election involved more people than that. There would be political agents going house-to-house and talking to people at shopping centres and on street corners. The electoral process involved not just voters but a range of individuals and groups. It was difficult to say that a certain person was going to be approached by a certain party agent on a particular date, and ascertain those individuals’ vaccination status or vaccinate them accordingly. Instead, the country had to rely on national population immunity. As Mr Moepya had said, population immunity did not mean that there would not be viral transmissions; nor did it mean that unvaccinated people would not participate in the elections. However, immunity reduced the severity of the disease, and thus the rates of morbidity and mortality – though, as Minister Motsoaledi had pointed out, those rates were not reduced to zero. The objective was to vaccinate a large proportion of society.
Minister Motsoaledi said that Mr Roos was trying to draw a mathematical link between the number of voters and the number of vaccinated persons required to achieve herd immunity. But, unfortunately, such a link did not exist at all. For example, European governments had banned sports, including soccer, which was very popular. Soccer was played by only 22 people at any time, but literally millions of people had to be immunised before those 22 players could be allowed on the pitch. Even after the ban had been relaxed, spectators had not been allowed. At most 120 000 spectators could fit in any stadium, but millions of people had to be vaccinated before those 120 000 could be allowed to attend matches. Herd immunity should not be confused with the number of people involved in any one activity. The fact that herd immunity required 40 million vaccinated people was unrelated to any activities that might take place in an immunised population – whether soccer matches, elections, church services, or cultural activities. What mattered for herd immunity was the number of people who had to be immunised to stop the advance of a particular disease in the population – which, in this case, happened to be 40 million.
Minister Motsoaledi added that it was not the first invocation of the concept of herd immunity. It was known that there would be a measles outbreak unless 85% of children were vaccinated against it. Likewise, at a 2014 conference of the International Aids Society, scientists had developed the 90-90-90 strategy: to, in any population or setting, diagnose 90% of HIV-positive people, treat 90% of diagnosed people, and achieve viral suppression in 90% of treated people. At that point, there would be some form of herd immunity against HIV, because transmission would be greatly reduced.
Ms Khanyile repeated her question about what method the IEC used to verify the voters who were registering online.
Mr Sheburi replied that, first, applicants created a profile on the IEC website, providing their contact details – either an email address or cellphone number. After that, they could begin the registration process, and would receive a one-time pin that they had to input within a given time frame to proceed with the application. They would then be asked to enter their details and capture an address. The website would automatically recognise most suburban street addresses, but the IEC knew that not all addresses were included in the national address database. People who lived in rural areas might have to take some time to pan through maps to find their area of ordinary residence. After that, applicants scanned the back side of their smart ID cards or the front page of their green ID books. The system would automatically compare the inputted details with the details held by DHA on the national population register, to verify their citizenship status. Legally, only citizens could be enrolled as voters. This system had been endorsed by the PLC. The IEC had also invited political party technicians to attend a workshop with the IEC’s systems developers, to check the security features and satisfy themselves that the systems were solid and left no opportunity for “mischief.”
The Acting Chairperson said that Ms Khanyile had asked about “glitches” in the online application process. What were these glitches or limitations, and how had the IEC responded to ensure the quality of the system?
Mr Sheburi replied that he would repeat his earlier response. What Ms Khanyile referred to as glitches were primarily two things. One of those things was indeed a glitch – a delay that people had experienced between creating a profile and receiving a one-time pin. The IEC had since resolved that issue with its service providers. The other things that might be perceived as glitches were in fact deliberate safeguards in the system. For example, the system required people to scan the reverse of their smart ID card, which displayed the bar codes for their national population register ID number. Alternatively, they could scan the front page of the green ID book, which displayed their picture and the barcode for their ID number. The system required this so that it could harvest DHS data and compare it with the applicant-inputted data, to confirm the applicant’s citizenship status. A less robust system might accept a scan of a blank page or a profane image. The robustness was intended to deal with that. However, the IEC had reviewed the feature without sacrificing the security imperative that it served.
Mr Sheburi added that the IEC had the details of all people who had tried and failed to register online. There was a team who contacted those people to help them conclude their applications, so those were not wasted attempts. At the end of each day, the IEC took stock of how many applications that day had been successful and unsuccessful, and then contacted those whose applications had been unsuccessful. Having made such changes, the IEC had seen that the rate of failure had fallen substantially in the last two days.
Mr Pillay repeated his question about the timeframes for the Constitutional Court process. Had the IEC made progress in briefing counsel and so on?
Mr Mamabola replied that the IEC had appointed a team of counsel, who were busy drafting a court application and would even work over the weekend to finalise it. The IEC would have to review the application early next week. If it agreed with the contents of the application, it would then give the legal team the go-ahead to submit. The IEC planned to submit the application before Friday 6 August. It might submit earlier, but it could not commit to that, because it was also dependent on confirmatory evidence from people outside the IEC over whom and over whose time the IEC did not have control. All the information required for the application was being gathered. Political parties obviously had a substantial interest in the matter and would probably be cited. The application would be published on the IEC website so that it would be easily accessible to the public, because every voter had an interest in the matter.
Dr Nomsa Masuku, Commissioner, IEC, was present but said that she had nothing to add to her colleagues’ responses.
The Acting Chairperson said that he thought it was important that Members had followed up on unclear matters. The current meeting concerned very important matters, and Parliament and the IEC had to ensure that local government elections were free and fair.
Mr Moepya said that he had a thought to leave the Committee with, responding to an issue that had been raised implicitly rather than explicitly. When the IEC went to court, it would seek to postpone the elections within the law, and would ask for the court’s assistance in finding a way of doing so. In this process, the IEC’s position might well have consequences for other parties and entities, including – as Mr Roos had implied – Parliament itself. Parliament might want to look at the issue and consider what to do, whether in approaching the court or in otherwise reacting to the IEC’s application. From previous experience with such matters, he thought it would be fair for everybody to look at the court papers and help the court to reach an appropriate decision.
Mr Mashini said that Ms Molekwa had asked a question about consultation, and he thought it important to make the IEC’s process as transparent as possible. The IEC was legally required to consult continuously with political parties, and the PLCs served as a platform for continuous liaison of this kind. Hopefully, the IEC could identify any gaps which had to be supplemented to ensure that sufficient consultation took place. He thought that the IEC’s transparency measures and mechanisms were “quite optimal.” Throughout this process, every stage had been in the public domain, including documentation, presentations, and steps taken by the IEC. The IEC had also been consulting with the Minister of COGTA throughout. It did so to fulfil another legal obligation, but also to ensure that there was “optimum synchronisation” among stakeholders in dealing with this complex and unprecedented matter. A coordinated response would prevent those involved from creating confusion among the public or even among international stakeholders, and from creating the perception that South Africa or South African democracy were “floundering” or otherwise threatened. The situation was fully under control and was being steered with “utmost sensitivity.” It was a structured process, leaving no room for any “reckless activity” or unintended consequences. The IEC engaged fully with stakeholders and, through the inter-ministerial committee, with the Cabinet.
The Acting Chairperson thanked Members for interacting with the briefing, and thanked the IEC and the Ministry for their contributions. The Committee also had to appreciate the IEC’s efforts in instituting the parallel Moseneke inquiry process, and it thanked the political parties, civil society organisations, and other entities that had been involved in generating the Moseneke report. Collectively, stakeholders had to navigate the pandemic, while also ensuring free and fair elections. The meeting had provided important clarity on the concerns of Members and of the public.
The Acting Chairperson said that the Committee noted the Moseneke report, and would closely monitor the process as the IEC approached the Constitutional Court. Later, the Committee would invite the IEC to brief it about the way forward, including about the IEC’s plans for voter registration and other processes that would facilitate free and fair elections. However, the Committee would seek legal advice from parliamentary experts before deciding whether and how to involve itself in the process.
The Acting Chairperson added that both delegates, as IEC officials, and Members, as public representatives, had to mobilise people to volunteer for the COVID-19 vaccination programme. He excused the IEC from the remainder of the meeting.
Draft Committee oversight visit programme
The Committee secretary presented the draft programme for the Committee’s oversight visit to KwaZulu-Natal and Gauteng, scheduled for next week. The Committee would stay at the Protea Hotel Fire and Ice in Durban from 1 August to 4 August, and at the Premier Hotel in Johannesburg from 4 August to 6 August. According to the reports he had received, the following programme would take the Committee to all the DHA offices that had been affected by looting and vandalism:
- 2 August: Briefing at Umgeni regional office by the provincial manager on the extent of the damages and looting at DHA in Kwa-Zulu Natal, and inspection of Eshowe office;
- 3 August: Inspection of Impendle and Vulamehlo offices; and
- 5 August: Briefing at Braamfontein regional office by the provincial manager on the extent of the damages and looting at DHA in Gauteng, and inspection of Bara and Mamelodi offices.
The Committee secretary said that Mr Pillay and Ms van der Merwe would only participate in the KwaZulu-Natal leg of the trip. He asked Members not to change their flight details – because of the limited number of flights, it was difficult to find alternative flights. Members should contact the Committee secretariat if they had not been sent their flight details.
The Chairperson thanked Members and the Committee secretariat. The Committee would continue to monitor the IEC process.
The meeting was adjourned.
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