Constitutional Court ruling on Local Government Elections & IEC readiness; with Minister

Meeting report

Opening remarks by Chairperson
The Chairperson said the joint meeting was convened to receive an update on the outcomes of the order handed down by the Constitutional Court. The Committee had already received a briefing by former Deputy Chief Justice Dikgang Moseneke on the Inquiry into Ensuring Free and Fair Elections during Covid-19 and whose recommendation to postpone the Local Government Elections had been adopted by the IEC. The IEC had approached the Constitutional Court to approve postponing the elections but dismissed this.

The present meeting would note the progress of the IEC’s plans on the voter registration weekend as a result of the Constitutional Court order. It would also report on its overall readiness for the LGE.

The Committee acknowledged Dr Aaron Motsoaledi, Minister of Home Affairs, and Mr Thomas Sigama, Deputy-Director General: Civic Services, who would report on the Department of Home Affairs (DHA) progress in the distribution of identity documents.

The Chairperson said the IEC had consistently declared its readiness to hold the LGE and would outline its plans post the court ruling. Candidate registration was an area on which other political parties had instituted legal proceedings. That matter could not be discussed as it was sub judice.

Opening remarks by IEC Chairperson
Mr Glen Mashinini, IEC Chairperson, said the purpose of the meeting was to outline the IEC’s preparations. It had been seized with preparations since 2019 to ensure elections took place within the legal framework. Among those were the legislative amendments to align its electoral legislative framework with new approaches to managing the elections. Those amendments were approved by both Committees and assented to by Mr Cyril Ramaphosa, President of the Republic of South Africa. The IEC informed the Committee that it was acquiring new technology to assist in the registration of voters. It would enable the IEC to respond to the Constitutional Court judgment on the registration of voters.

The advent of the COVID-19 pandemic necessitated a number of considerations that the IEC had made. That included the consideration for the postponement of the elections. There were also a number of by-elections that were postponed. In dealing with the pandemic the IEC engaged former Deputy Chief Justice Moseneke to inquire if the elections could be conducted freely and fairly during the COVID-19 pandemic. The conclusion of the inquiry indicated that free and fair elections would not be possible. The IEC accepted that report and approached the Constitutional Court for a deferral of the elections until February 2022. On 3 September 2021 the Constitutional Court issued an order instructing the IEC to hold the elections between 27 October and 1 November 2021. The full judgment has yet to be received but the IEC undertook to comply with the court order.

Constitutional Court ruling on Local Government Elections & IEC readiness
Mr Maseko Sheburi, Deputy Chief Electoral Officer, said that the Constitutional Court order directed that the IEC had to determine within three days if it was practically possible to hold a voter registration weekend ahead of elections that ought to be held no later than 1 November 2021. If the Commission determined that it was possible to hold a voter registration, the IEC was directed to do so. On the day following the voter registration weekend, Minister of Cooperative Governance and Traditional Affairs Dlamini-Zuma should issue a proclamation determining a date for the LGE that had to be held no later than 1 November 2021.

The court order further directed that the timetable published by the IEC on 4 August 2021, would notwithstanding the provisions of Section 11(1) of the Municipal Electoral Act, remain applicable, save that as soon as possible after the issuing of the proclamation, the IEC should, in terms of section 11(2) of the Municipal Electoral Act, publish amendments to the current timetable as may be reasonably necessary.

In the alternative, if the IEC determined it was not practically possible to hold a voter registration weekend then the COGTA Minister should not earlier than 10 September 2021, issue a proclamation determining a date for the elections which must not be later than 1 November 2021. Between 3 September and 10 September 2021, eligible voters who wish to register may apply to do so at the relevant municipal office.

The court order also held that the Economic Freedom Fighters’ conditional application for the relief set out in paragraphs 4 and 5 of its notice of motion was dismissed.

Mr Sheburi explained the implications of the court order. Setting aside the proclamation unsealed the voters’ roll that was closed on the proclamation day of 3 August 2021. The net effect was:
- Persons were now entitled to register until 20 September 2021.
- Registration entitles a voter to be included on the roll, to vote, to nominate candidates and to stand for public office.

The timetable published on 4 August 2021 was preserved until a new proclamation. After the proclamation the IEC had to publish amendments as may be reasonably necessary. The IEC’s statutory responsibility to effect adjustments to the timetable for purposes of free and fair elections in section 11(2) was not removed.

Outlining the IEC decisions, Mr Sheburi said it had scheduled a voter registration for 18 and 19 September 2021. After the proclamation it would issue an amended timetable which was consequential to the registration of voters. The amendments implicated included:
- Period of objections to the voters roll
- Period for special vote applications
- Cut off period for candidate nominations
- A period for parties to exercise an election on candidates appearing on multiple lists.

The IEC recommended 1 November 2021 to the COGTA Minister as a preferred date for holding elections. Consultation with role players including political parties in the National Party Liaison Committee (NPLC) had been concluded.

Discussion
Ms M Modise (ANC) appreciated the IEC appointment of former Deputy Chief Justice Dikgang Moseneke in initiating a dialogue with political parties about the process for the elections. It broadened their understanding of free and fair elections. She pointed out that the IEC in a previous meeting had announced its readiness to hold the 2021 elections. It affirmed and demonstrated that as a Chapter Nine institution they were committed to holding the LGE which they ought to be affirmed for.

On the voter registration Weekend planned for 18 and 19 September, Ms Modise asked about the IEC’s state of readiness which had not been communicated in its presentation. She asked about its readiness in terms of materials, training of staff and adherence to COVID-19 precautionary measures. These were uncertain times, so what plans were in place for the voter registration Weekend. She imagined that a greater human resource would be necessary due to COVID-19 and therefore asked for the budgetary implications. There would be queues and staff required to enforce COVID-19 protocols. What were the budget implications?

On the voting devices, she asked about their status. Were they ready for utilisation in the upcoming elections?

Ms Modise asked if the IEC would be willing to consider extending the Special Voter categories that catered for people with disabilities. Citizens over 40 years might have comorbidities that rendered them more vulnerable to COVID-19 and thus hindered them from accessing voting stations. Could the Special Voter categories be extended to include citizens over 40 years?

On the IEC timetable amendment, what implications did it have for opening up of candidate registrations? What powers did the IEC have to amend the timetable? She was aware that reopening candidate registration had been highly contested in the media. Therefore she did not want the IEC to speak on that, but she did want to know its constitutional powers for amending the timetable.

Ms L Tito (EFF) referred to the unrest that took place in Gauteng and Kwa-Zulu Natal. She asked if there were voting stations that had been vandalised. If so, had plans been put in place to ensure people could register and vote?

Ms A Khanyile (DA) said Ms Modise had covered her questions about COVID-19 protocols and the opening of candidate registration. However, she wanted to know what costs were associated with opening candidate registration.

She noted that DHA had stopped processing applications for identity documents under Level Three Lockdown Regulations. That posed a problem for those who did not have identity documents and who wanted to register to vote. Could DHA open its applications for identity documents?

Ms Khanyile stated that the IEC had appeared before the Committee numerous times indicating that it had ordered voting devices. Had the devices been delivered? If so, in a previous meeting Members had asked for the devices to be tested. When would they be tested because she did not want a situation where people had double voted as had taken place in the previous elections?

Ms Khanyile asked if the IEC had enough funding to host the upcoming elections. Lastly, she asked how much the Moseneke Commission, its report and the IEC litigation to postpone the election had cost.

Mr M Tshwaku (EFF) reiterated the comment that the devices ought to be tested on Monday due to the upcoming voter registration weekend. It was important to ensure citizens could vote. He was happy about the use of the Voter Management Device (VMD) which he felt would ensure votes were accurately captured on the voters roll. In the past, EFF supporters found that they were not on the voters roll on voting day and the VMD would put an end to this and ensure our people are loaded.

On COVID-19 precautions, he asked how the IEC would ensure oversight by party agents of votes in terms of the seating arrangements. Did the IEC have enough space required for social distancing to ensure that the party agents of all political parties were seated? Some voting stations were too small so he wanted an assurance that all 23 152 voting stations would have enough space, electricity, sanitation, and security. Had an audit been conducted to ensure readiness as some voting stations did not even have toilets?

He asked what the IEC understood about the court statement that the election timetable published on 4 August 2021 was valid and applicable. What aspect in the timetable remained valid and lawful? Did the IEC believe that the candidate nomination process it conducted was valid and lawful? Did the IEC believe that the court had invalidated the election timetable issued on 4 August 2021 and its candidate nomination process? What law indicated that a court’s opening of the voter registration automatically invalidated the Candidate Nomination process that had been lawful and valid at the time it was conducted? Lastly, the relevance of the NFP case is that when the cut off time for registration of parties to contest the election had passed, there could not be an extension for new candidates – did the IEC accept that?

He was not concerned about voter registration and welcomed people registering to vote. The elephant in the room was the opening of the candidate registration and if the interpretation by the IEC was lawful. Had the IEC received sound legal advice about the opening of the candidate registration? The horse had bolted and the elections would be proceeding but he asked for a thorough explanation on the matter he addressed.

Ms T Legwase (ANC) applauded the IEC for responding to the current difficulties. She reiterated what Ms Modise said about the readiness of the IEC to hold the elections. Acknowledging that the matter was sub judice, she asked what the implications would be if the Democratic Alliance won its case at the Constitutional Court about reopening candidate registration. The rest of her concerns had been covered by the questions already asked.

Ms M Bartlett (ANC) said her questions had been covered by Ms Modise. She added that work on the ground had commenced and people could register until 20 September. She welcomed the reopening of the Voters Roll.

Mr Z Mkiva (ANC) asked if measures were in place to ensure effective communication by the IEC given the restrictions in place. How would they reach people in rural areas? He addressed the language medium of instruction and said he wanted people to be able to follow everything leading up to the elections so that they could be well informed.

Mr Mkiva commended the IEC on its opening of a window period for the submission of the candidates. It was very progressive as the country’s growing democracy could not afford any form of gatekeeping. Meaningful participation was required in the elections. He was concerned about political parties who wanted to shut the door on those who wanted to participate in a democratic election. He questioned what they were afraid of. Instead political parties should wholeheartedly support this window period so they can close ranks to meet the deadline. It was not a deadline for the political parties but for the communities participating in the elections so no one should prevented from participating.

Ms N Nkosi (ANC) welcomed the detailed presentation and applauded the DHA for the work done. She had been covered by the questions already asked.

Mr A Roos (DA) agreed with Chairperson’s opening remarks about the need to receive specific details on readiness. The IEC had apparently been ready for months. He asked if contracts were in place for registration weekend and election day. What plans were in place to communicate with voters where voting stations had moved if prior stations were unavailable? Were all voting stations complemented with staff who had been trained on the VMD? Were municipal warehouse contractual agreements in place and were the registration printed materials ready for distribution. What communication was in place to assure voters it would not be unsafe to vote?

Mr Roos said it was problematic that the IEC told the Committee on 30 July that it was 100% ready and would continue to plan as if the election was on 27 October. The Committee had been told that despite the height of the third wave the IEC continued to prepare itself for the registration weekend. However, on 4 August, a few days later, when it filed a court application for postponement, the IEC said the registration weekend would be impossible unless the election day would be moved to February. When the court ruled on 3 September that the election should proceed, the IEC said it was unsure about its readiness but that it would try. That was followed by an announcement on 6 September that there would be a registration weekend. It was strange how things had moved around and how the IEC had communicated with the Committee. He asked what had changed between the IEC 30 July meeting with the Committee and it submitting its court papers – when did it suddenly realise that it was not ready? Secondly, what had changed from claiming the registration weekend was impossible to announcing its readiness on 4 August?

Mr Roos did not want to talk about the reopening of candidate registration but it was out of order for the IEC to declare that parties were misrepresenting the judgement. There were interpretations which raised questions about the independence of the IEC. He did not appreciate its comments.

Mr K Pillay (ANC) said it was important to take cognisance that the court order had been clear in 5(a) that the IEC must within three calendar days after the date of the order determine if it was practically possible to hold a voter registration weekend to register new voters and change registered voters particulars on the voters roll. That in itself was a clear point that it was practically possible and in keeping with a free and fair election. He welcomed the IEC’s decision to conduct the voter registration weekend.

On the Constitutional Court holding that the election date was invalid and set it aside, Mr Pillay said that in itself meant that a new date had to be proclaimed hence the amendment of the election timetable.

Mr Pillay asked about IEC plans to observe COVID-19 protocols. Marquees erected as temporary voting stations were quite small which made it difficult to observe those protocols. There needed to be sufficient PPE. He asked if it was possible for IEC staff to be tested to mitigate the risk. He asked what would happen to voters who could not visit voting stations – how would they be accommodated?

Mr Pillay said the point of departure was that the IEC at all times was promoting a free and fair election which should be the departure point for everyone. It had to be ensured that all South Africans had the opportunity to cast their votes.

Ms S Shaikh (ANC), Select Committee Chairperson, said the IEC should be commended for opening all voting districts for registration to ensure access to all. The elections are taking place under unique circumstances with the pandemic.

She asked if the categories for special votes could be extended. What would be the implications?

On communications with voters, she asked how the IEC reached out especially those in rural areas so people were aware of the voter registration weekend and the COVID-19 protocols that would be implemented.

Ms Shaikh said the voting stations had to be operational and functional on the day. Had the IEC verified were still functional? What arrangements had been made for the one that had shut down?

On the opening of candidate registration, Ms Shaikh advised that the matter be treated as subjudice,and the focus should be on IEC preparedness to conduct a free and fair election.

The Chairperson advised the IEC to be specific in answering the questions on its implementation phases. The two main areas highlighted by Members was that the IEC has consultation with the NPLC. Secondly, the IEC should not be pressured to comment on the matter before the court. Members had raised the readiness to conduct elections because the IEC had repeatedly been inarticulate on its readiness.

IEC response
Mr Mashinini said a strict approach to answering the questions had to be followed as the candidate registration matter was before the court. What the IEC had said had been sufficient and it would not be appropriate for it to engage any further on the topic. He appealed to Members to take that into consideration. He referred specifically to Mr Tshwaku’s pointed questions on the sub judice matter. The IEC would be making appropriate submissions before the appropriate court.

Mr Mashinini said the IEC had indicated on record to the Committee that it had a constitutional responsibility to discharge. Its mandate clearly stated that elections took place every five years and 90 days after the end of that term. Since 2019 the IEC had incrementally reported on developments and plans for the LGE in addition to addressing any concerns from the Committee.

Indication of readiness was not in absolute terms as Mr Roos had made it appear. Overall, things were on track with a detailed programme and project plans and when those evolved the IEC reported. He was not sure if it was disingenuous to say the IEC had contradicted itself to the Committee and to the court. The IEC reported its readiness based on the plans as at that time. The developments and issues raised with the court had clearly been the IEC pointing out the anticipated risks and its proposed mitigating plan. However, the Constitutional Court not granting it relief did not necessarily mean it had not been consistent in its reporting to the Committee. The IEC had a serious responsibility not to mislead Parliament. The insinuation was taken seriously. The risks pointed out by the IEC were related to COVID-19 which no one had any certainty about. The signs of probabilities and mitigation plans had been stated clearly. The IEC respectfully submitted that it had not misled the Committee. After the Constitutional Court order, the IEC discussed the situation with its administrative team which led to the proposition of the Electoral Timetable which it believed it would be able to carry out. Mr Mashinini said the IEC could not give some of the guarantees Members had asked for. The IEC would do its best as required by the law and professional standards.

On the reach of its communications, Mr Sheburi, Deputy Chief Electoral Officer, confirmed that this coming weekend the IEC would activate communications about the voter registration weekend. It was consistent with research that showed the majority of people still relied on radio as the primary mechanism of receiving information. Thus communication would primarily take place via radio in all languages. Communication would also be televised. Face to face contact sessions in communities had been reduced due to COVID-19 and had been redirected to new and social media.

On broadening the special vote categories, Mr Sheburi said it was possible without any legal intervention. The category was broad, and a person merely had to indicate that they were unable to travel to a voting station which was broad enough to accommodate every category of person without introducing additional categories through the Regulations.

On IEC readiness, Mr Sheburi confirmed that since the IEC began preparations for the election, it was constrained by what the law provided. It knew there was a cut-off time in which it had to deliver free, fair and safe elections. It understood that the only way it could contemplate an election outside of that period would have been through judicial authorisation thus its plans had always contemplated an election within the statutory time period.

The contracts for voting stations were in the process of being updated as the date contracted for the registration weekend had been in July. Therefore the contracts had to be updated. That also entailed the re-confirmation of amenities and facilities at those voting stations.

Mr Sheburi confirmed the IEC staff had begun the process of refresher training which would be concluded within the next week in time to administer the elections.

On logistics, he stated that because the IEC had always planned for elections to take place by no later that 1 November 2021 all logistics for registration were on hand at its local storage facilities. The picking and packing for assignment per voting station would be finalised for use on the weekend of 18 and 19 September 2021.

The VMDs were in the process of being tested and applications developed in-house would be uploaded to facilitate the registration of voters. They would be assigned and used for the first time over the 18 and 19 September 2021 weekend.

Mr Sheburi explained that the voter registration weekend did not take place in July – not because the IEC was unprepared – but rather due to the COVID-19 third wave. The decision was taken that it would be irresponsible to expose the IEC staff and voters to harm by insisting on the voter registration weekend. It was currently possible to host the weekend because of the declining rate of transmission as of the middle of September.

On the IEC powers to amend the electoral timetable, it was not the IEC's understanding that the Constitutional Court intended to amend the law, neither was it its understanding that the court removed the IEC powers to update the timetable. On the contrary, the Court reinforced that by stating that notwithstanding that the election had been set aside, the timetable remained extant but once proclamation was made, the IEC had to amend the timetable. Thus if the intention of the court was to remove that, it would have been very explicit. If the court sought to constrain the IEC power to deal with certain aspects of the timetable, it would have done so. The matter was currently sub judice and the IEC had not opposed the direct access sought by the DA but was of the view that the Constitutional Court should dismiss the application. The court instructed that by 15 and 14 September 2021 interested parties should submit their affidavits to the court. The judgment is awaited so the IEC could prepare for elections on 1 November 2021. IEC was confident the proposed amendments to the election timetable met all the rationality and lawfulness requirements.

On the impact of COVID-19 on elections, Mr Sheburi said that during the Level Five Lockdown the IEC had consulted with political parties which resulted in a protocol for administering elections in the context of COVID-19. It was formulated through the participation of all parliamentary parties. It had been tested in 150 by-elections throughout the country both last and this year. The challenge was for the IEC to replicate those protocols for the upcoming elections on a larger scale of 23 150 voting stations. To that end, PPE had been provided and was in the warehouse to be used at voting stations. The PPE for election day remained unfunded until the current week. Procurement processes had been activated as it could not be activated when there were no funds for the PPE. The funding would come from National Treasury.

On the IEC budget, Mr Mashinini said it was in advanced discussions with Treasury on supplementing the budgetary requirements. Otherwise, all budgetary requirements for the upcoming elections had been covered by Treasury allocations.

Mr Mawethu Mosery, IEC Acting Deputy Chief Electoral Officer for Outreach, said communications had been covered sufficiently by Mr Sheburi. The main media campaign would begin on the upcoming weekend. He repeated what Mr Sheburi had said and added that there was a physical team in every municipality designated to do civic and voter education with a focus on voter registration. The disability community had been singled out to be assisted. Information was posted on social media platforms such as TikTok, YouTube and Facebook.

The Chairperson thanked them for the responses and cautioned that all Members' questions and comments had been grounded in conducting oversight of the IEC's work. He was referring to Mr Mashinini’s statement that Members' comments were an insinuation. That should not be the spirit in which responses should be made. Members were carrying out their oversight function on behalf of their people which should carry a sense of appreciation. Members appreciated the work conducted by the IEC but that did not prohibit Members from conducting their oversight function.

Minister's comments
Minister of Home Affairs, Dr Aaron Motsoaledi, said the DHA’s engagement with the IEC was ongoing and was not restricted to election times. Periodically, the IEC met with Home Affairs officials to discuss the voters roll to update it with new entrants and remove deceased persons.

Minister Motsoaledi said the only time the DHA had stopped issuing identity documents was during Lockdown Levels Four and Five. The only documents that had not been issued were replacement identity documents. Instead the public were issued with Temporary Identification Certificates (TICs) which were applicable for use during elections. The reason was to reduce the number of people visiting Home Affairs offices.

Minister Motsoaledi said the problem was with the collection of identity documents. There were 418 000 documents that had not been collected. People were contacted via SMS to collect their documents but still did not turn up. DHA relied on Parliament to spread the message for people to collect them. During the election weekend, Home Affairs offices would be open to issue identity documents.

The Chairperson thanked the DHA and the IEC for the contributions made. The registration process would be monitored, and the youth would be mobilised to register. The collection of identity documents had been raised before which Members would take on and should be expressed through the IEC as well. The IEC would be invited again before the elections to give an update on its final preparations and responses to issues Members had raised.

Mr Roos asked for a resolution on whether the VMDs would be thoroughly tested.

Mr Tshwaku asked for a response on his question about the set-up and seating arrangements at the voting stations. Would there be generators and adequate sanitation? Secondly, he asked for a physical demonstration on how the VMDs would work.

Ms Shaikh asked if the IEC was clear about its PPE distribution. She commented on special votes that the IEC should maximise this in the context of COVID-19.

Mr Sheburi replied that the parties that wanted to test the VMDs could make arrangements with the IEC via their NPLC representatives and the VMD would be availed for testing.

On PPE, the IEC had a well established logistics network. Social distancing would be enforced at voting stations. At the entrances there would be sanitiser. On voting day, ink pens would not be used because it had to be shared so it would be applied using a single use cotton bud. Voters would be encouraged to bring their own pens even though pens would be sanitised after each use.

Mr Sheburi explained that a special vote allowed people who knew upfront that they would not attend their voting station, to apply for a special vote. That allowed them to vote on any of the two voting days before election day. Similarly, anyone else who could not attend a voting station could have the application made on their behalf. The IEC intended to make use of the category to decongest voting stations on voting day. However, the IEC could not remove the requirement of pre-approval as without it, risks would be introduced into the electoral process. He implored politicians who would be assisting people in the special votes category to list the contact details of the voter and not the representative assisting them.

Mr Mashinini thanked the Committee for the discussion and welcomed the next engagement.

Minister Motsoaledi appealed to Mr Sheburi and Mr Mashinini to allow Mr Tshwaku to test the VMD.

Select Committee Chairperson, Ms Shaikh, thanked the IEC and the DHA for its contributions. The LGE would take place on 1 November 2021 and the IEC had concluded consultations with role-players including political parties. The IEC had scheduled voter registration for 18 and 19 September 2021 which would take place in all regions of the country. It has also put in place risk and mitigation plans and scheduled an extensive communication strategy to get the message out to all voters. The IEC would produce an amended timetable consequential to the registration of voters. She reiterated the oversight role Members had to play in ensuring there was a credible free and fair election. Parliament had to affirm its faith in the IEC to ensure a credible election. She called on all citizens of voting age to register to vote.

Meeting adjourned.