The implications of the Constitutional Court's decision on Friday - that we are to proceed with local government elections in October/November despite a warning from the Electoral Commission of SA (IEC) that they are unlikely to be free and fair - are big enough.
But they had barely begun to sink in before another question was immediately thrown up: what does the court's order mean for the ANC? This after the party revealed in court papers that it had missed the deadline to register candidates for a staggering number of seats.
In an application on August 30, hastily withdrawn the following day, the ANC asked the electoral court to amend the election timetable to give it an extra 36 hours to register its candidates. In its court papers, the party revealed that it had been unable to register candidates in 94 of SA's 278 municipalities.
In her affidavit, ANC deputy secretary-general Jessie Duarte said that, in 35 municipalities, this would "result in a change of government, or change in the main opposition, without a single vote being cast".
If the ConCourt had postponed the election, it would have been a lucky escape for the ANC. Now, the question is whether Friday's order has provided any wriggle room at all for the IEC to make the kind of amendment to the timetable that the ANC wants.
The ConCourt's order was a majority decision delivered without reasons, which are still to come. It scrapped the proclamation that set the date for the elections on October 27. Instead, the poll must be held "on any day in the period from Wednesday 27 October 2021 to Monday, 1 November 2021".
The IEC has three calendar days (Saturday, Sunday and Monday) to figure out whether it is practically possible to hold a voter registration weekend. If it is, it must publicly announce its decision as soon as the decision has been made. It must then conduct the voter registration weekend. The very next day, the minister must issue a proclamation for an election date - on a date between October 27 and November 1. If the IEC cannot do a voter registration weekend, the minister must proclaim a date by September 10 and eligible voters may apply to vote at municipal offices.
Normally, under the Local Government: Municipal Electoral Act, it is at this point - when an election has been called - that the commission publishes a timetable. But the ConCourt's order says that "notwithstanding" the act, the timetable already published remains applicable.
However, there is a proviso: "Save that as soon as possible after the issuing of the proclamation … the Commission must publish such amendments to the current timetable as may be reasonably necessary."
It is under this proviso that the ANC may be pinning its hopes for an amendment to the timetable.
One possible argument by the ANC, or even the IEC, on this score is that in order to be a candidate, a person has to be registered on the voters roll. A voter registration weekend means the voters roll will change
The court's order envisages that it may be reasonably necessary to adjust the election timetable to accommodate the registration of voters. The way the order is formulated, it seems clear the purpose for any adjustment is voter, not candidate, registration. So any adjustment to the candidate registration process would have to be a "reasonably necessary" consequence of the voter registration.
One possible argument by the ANC, or even the IEC, on this score is that in order to be a candidate, a person has to be registered on the voters roll. A voter registration weekend means the voters roll will change.
The IEC said in its court papers that, based on past experience, a voter registration weekend could mean at least 600,000 new voters on the roll, and still more that would change their voting area. By law, all of them would then have a right to stand as candidates, for parties or as independents. This could then make it "reasonably necessary" to amend the election timetable to allow for a new candidate-registration process.
The ANC may try to find two further cracks in the door.
The Local Government: Municipal Electoral Act already, with or without the order, allows the election timetable to be amended in two circumstances - first, in order to ensure the election will be free and fair; and second, if the election is postponed.
The ANC's aborted court application was based on the first, with Duarte saying the IEC's "mechanical" adherence to the timetable had rendered the process not free and fair. Her arguments had not washed with the IEC, which in correspondence flatly refused.
It is not clear why the ANC withdrew its case, but it may struggle to persuade a court on this argument. The ConCourt in 2004 already held that a refusal by the IEC to accept a late candidate list by the Liberal Party did not mean that the local government elections would not be free and fair. However, in the Liberal Party case, there was no fault on the part of the IEC, whereas the ANC, in its withdrawn court papers, was blaming the commission's computer systems. So there may be a fight about that.
Also, the EFF had entered the fray in the ConCourt, also seeking more time for candidate nominations. Friday's order dismissed their application. If the ANC were to go to court and want to make any similar arguments as the EFF made to the ConCourt, it would face the additional hurdle that these had already been rejected by the highest court.
The other crack is that, as a result of the order, the election may be postponed, albeit by a day or two or three. A postponement is, under the act, another basis to amend the election timetable. It could be argued that, with a postponement, the IEC is within its discretion to adjust the election timetable in whatever way will best serve the discharge of its constitutional and legal obligations.
However, Duarte said in her affidavit that the IEC had in its correspondence expressed doubt that it could change anything to the candidate nomination process since this process was complete already - called "functus officio" in law. Since the ConCourt's order arguably relates to adjusting the timetable for voter registration purposes only, and not for purposes of the postponement, the IEC may still consider itself functus officio on any amendment outside the strict limits of the ConCourt's order.
Either way, court battles are likely. The next couple of months may test the strength of the institutions of our constitutional democracy and the integrity and maturity of our political leaders.
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