Local Government elections (“municipal elections”) are held every five years to elect councils for all districts, metropolitan and local municipalities within our nine provinces. The president of the Republic of South Africa announced that the municipal elections will be held on 1 November 2021.
The Electoral Commission of South Africa (“IEC”) applied to the Constitutional Court (“CC”) to postpone the municipal elections to February 2022. The IEC argued that having the municipal elections on 27 October 2021 would render them unfree and unfair due to COVID-19 restrictions.
On 3 September 2021, the CC dismissed the application by the IEC and ordered that the municipal elections must take place between 27 October and 1 November 2021. This served as a confirmation that the sixth municipal elections, since becoming a democracy, must be held this year.
Various role players will be involved in the election process, the most important of which is the IEC which will be tasked with the role of managing a free and fair election process.
What is the IEC?
The IEC was temporarily created in 1993 to manage the first non-racial elections of the national and provincial legislatures in 1994. Following the 1994 elections, the IEC was permanently established on 17 October 1996 as an independent organisation in terms of chapter 9 of the Constitution. The purpose of the IEC is to manage free and fair elections through ensuring the participation of citizens, political parties and civil society in developing our electoral democracy.
Free and fair elections refer to, amongst other things, a transparent election process where everyone eligible to vote is allowed the opportunity to register and then to cast their vote. It also refers to an election that is free from any interference with the election process or anyone being unduly influenced to vote.
What are the powers, duties and functions of the IEC?
Apart from ensuring that the elections are free and fair, section 5 of the Electoral Commission Act 51 of 1996 (“ECA”) provides for various other functions, such as to promote knowledge of the election procedures and to promote cooperation from different stakeholders to achieve a free and fair election.
Before an election, the IEC deals with the registration of political parties and the maintaining of a voters’ roll, which includes the process of registering new voters. After an election, the IEC is tasked with managing the counting of the votes and declaring the election results within seven days after the election.
Can the IEC resolve disputes and complaints in respect of elections?
The ECA provides that the IEC may hear disputes arising from the organisation, administration or conducting of elections. However, the ECA is clear that the IEC can only hear disputes of an administrative nature.
In Electoral Commission of South Africa v Democratic Alliance (1068/2019) (2021) ZASCA 103 (23 July 2021), the Supreme Court of Appeal (“SCA”) provided clarity on what type of action the IEC can take when hearing a dispute. In this matter, a complaint was lodged with the IEC against a political party for contravening the Electoral Act 73 of 1998 and the Electoral Code of Conduct (“Code”) by publishing certain false statements.
After hearing the complaint, the IEC made a finding that the political party was guilty of the contravention, and directed them to issue a public apology and refrain from making such false statements. The SCA held that the IEC has no power under the Constitution, the Electoral Act or the ECA to make a finding that the Electoral Act or Code has been contravened or to impose a sanction for such contravention. The SCA went on further to note that at best, the IEC is empowered under section 103A of the Electoral Act to resolve a complaint about an infringement of the Code through conciliation.
If a dispute is not resolved at the IEC, it may be referred to the Electoral Court. The Electoral Court can give administrative penalties provided under section 96 of the Electoral Act, such as issuing a warning or a fine, prohibiting a political party from using public media, holding public events or disqualifying its candidature entirely.
How can a person file a complaint with the IEC?
Any person or political party may lodge a complaint with the IEC. The IEC is duty bound to investigate all complaints of alleged transgressions of prohibited conduct and provisions of the Code.
A complainant may lodge a complaint with the IEC on their website by clicking here or at one of their branches across the country. When lodging a complaint, include as much detail as possible in order to assist with the IEC’s investigation.
The IEC can be contacted at: