An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Its a pity to have to say this, but ANC spokesperson, Brian Sokuto, is shockingly uninformed about the law and the Constitution. Either that, or he is deliberately trying to mislead the public. When denying a news report on Tuesday that early elections would be held on March 25, 2009, he is quoted at IOL as having said the following:
“Reports to the effect that the ANC has come up with a date are totally untrue,” said African National Congress spokesperson Brian Sokutu. He said it was the prerogative of the Independent Electoral Commission (IEC) to set a date for the election.
“No political party can set the date for the elections… The ANC has not done so in the past three elections. Only the IEC is charged with setting a date for the elections. “The ANC will not interfere with the work of the IEC,” said Sokutu.
The problem is, Sokuto is talking utter balderdash. The IEC does NOT set the date for the election. The Constitution determines that the President of the country sets a date for the election of the National Assembly, while Premiers set the date for elections of the various provincial legislatures. This can be done in three different situations.
First the President or Premier must call and set a date for an election by proclamation within 90 days after the term of the legislature has expired. This would mean an election date could be set for anytime between 15 April 2009 and 15 July 2009.
Second, the President or the Premiers can call and set a date for an election by proclamation after the legislature had adopted a resolution to dissolve with a supporting vote of a majority of its members; and at least three years have passed since the last election for that legislature; and the President or Premier was consequently required to dissolve the legislature. This means the ANC can force an election nationally and in each of the provinces any time from now until 15 April 2009, merely by getting the various legislatures to adopt resolutions to dissolve. This would be the way to go if the ANC wants to force an election on March 25 next year.
Thirdly, the President or the Premiers can set an election date by proclamation if the President and/or Premiers resign or are removed from office by the legislatures; and the legislatures then fail to elect a new President and/or Premier within 30 days after the vacancy occurred; and the President and/or Premier is consequently required to dissolve the legislatures. This is a very cumbersome process and will probably not be used by the ANC if it wants the election to be held on 25 March 2009.
The Electoral Act also makes clear that the decision about the date for an election is in the hands of the President and the Premiers, although it makes clear that the voting day must be determined “after consultation with” the Electoral Commission. While the IEC must therefore be consulted, it has no veto over the date set for the election as Sokuto so confidently stated.
One would hope Sokuto will be asked to correct this mistake to avoid further embarrassment . Either that or he will have to produce a more plausible denial. As it stands, Sokuto’s denial does not hold water.
UPDATE: The ANC has now issued a statement which reads in part:
The ANC wishes to point out that responsibility for setting the election date lies with the President of South Africa in consultation with the Independent Electoral Commission (IEC). The ANC is engaged in internal discussions on possible dates for the election should the views of political parties be sought on the matter. The ANC has not taken a decision on which date or dates it would suggest.
This statement is not correct as the date is not set “in consultation with” the IEC as stated, but “after consultation with” the IEC. In legal terms the former suggests the IEC has a veto right on the setting of an election date, but the latter does not. Big difference.
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