Founding affidavit for the postponement of the Local Government Elections 2021
Whilst the Electoral Commission of South Africa (“Commission”), prepares for the local government elections on 27 October 2021, it has launched an application out of the Constitutional Court. This Court application is an extraordinary one and presumably unprecedented. The issues which are core to the application have a bearing on the political rights, rights to life, bodily and psychological integrity and access to health of citizens of the country. The application will undoubtedly offer the Constitutional Court another opportunity to contribute to the evolving jurisprudence of our constitutional order. The application is also launched on an urgent basis because there is need for certainty in the preparations for the municipal elections.
The nature of the relief sought by the Commission is largely predicated on the impossibility to perform a constitutional obligation which is the conduct of elections of municipal councils by 1 November 2021 due to the COVID 19 pandemic and the measures government instituted to curb the spread of the virus.
The main relief can broadly be described as follows:
- Declaring that the Commission may hold the forthcoming local government elections outside the 90-day period required by section 159(2) of the Constitution and section 24(2) of the Local Government: Municipal Structures Act, 1998;
- Directing the Commission to hold the forthcoming local government elections by no later than the end of February 2022; and
- Authorizing the Minister of CoGTA to withdraw the notice calling the forthcoming local government elections and setting 27 October 2021 as the date on which they will be held; and issue a fresh notice calling and setting a date before 28 February 2022 for the forthcoming local government elections.
In addition to the above, the Commission also seeks:
- alternative relief in the event it is not successful on its preferred option. The alternative relief essentially asks the Constitutional Court to declare that failure to hold the municipal elections by 1 November 2021 is unconstitutional and invalid and suspending the declaration of invalidity until the end of February 2022.
- for the Court to assume ongoing supervisory jurisdiction, requiring the Commission to report to the Court periodically on its progress in arranging constitutionally compliant local government elections in February 2022, and
- an order that the municipal councils remain competent until newly elected councils are declared elected to avoid uncertainty about the legal status of current municipal councils.
This court application affects the rights of all citizens of the country and thus everybody has an interest in the proceedings that will evolve in the Constitutional Court. In order to facilitate access to the court process, the Commission has uploaded its court application on its website and can be accessed via the link below.
Founding affidavit for the postponement of the Local Government Elections
- Notice of Motion together with the Founding Affidavit and Annexures thereto
- Confirmatory Affidavit by the Chief Electoral Officer
- Confirmatory Affidavit by Justice Moseneke
- Confirmatory Affidavit by the Director-General of the Department of Health
- Confirmatory Affidavits by 7 medical experts
- Rule 8 of the Rules of the Constitutional Court
The founding affidavit documents for the postponement of the Local Government Elections are contained herewith
Application for Intervention are contained herewith
Notice to Abide and Explanatory Affidavit by the Minister of Cooperative Governance and Traditional Affairs (COGTA)
The directions issued by the Acting Chief Justice are contained herewith
The Electoral Commission’s Replying Affidavit is contained herewith
Constitutional Court Orders