As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Sometimes even chartering a helicopter will not allow you to meet an important deadline – with disastrous results. Ask the Inkatha Freedom Party (IFP), whose candidates will not be able to take part in the local government election for the Umzumbe Municipality near Durban because it failed to submit the required documentation to the local office of the Electoral Commission as required by the Local Government: Municipal Electoral Act.
Maybe there is a lesson in there somewhere for politicians who turn up hours late for an event, for students who want to hand in essays and assignments after a deadline has passed and for Public Works Minister Gwen Mahlangu-Nkabinde who – two months after it was issued – is still “studying” (yeah right) the Public Protector’s Report which basically found that she had flouted the law and had acted unethically if not unlawfully.
In the case of Electoral Commission v Inkatha Freedom Party the Constitutional Court, in a judgment written by Chief Justice Sandile Ngcobo, today granted the appeal of the Electoral Commission against the judgment of the Electoral Court which would have allowed the IFP to take part.
The relevant Act states that a party can only contest an election in a municipality if it lodges the requisite paper at the local office of the Commission in that municipality before the prescribed deadline. On its face the Act therefore required the IFP to submit its election documentation to the Umzumbe office of the Commission by 17h00 on 25 March 2011. It did not do so. The reasons for this failure are set out in the judgment and it makes for somewhat bizarre reading.
Mr Bean meets Basil Faulty:
Despite [IFP officials] having “double checked” the documents destined for Gauteng, once in Gauteng, it was discovered that documentation that was destined for Cape Town and Umzumbe had been erroneously included in the Gauteng bundles. This was discovered at “around 10am” on 25 March 2011. Arrangements were made to send the stray documents to their respective destinations by courier. Those destined for Umzumbe could be sent to Durban only on a 14h00 flight that would arrive at King Shaka International Airport in Durban at approximately 15h00. A helicopter was chartered to fly the documents to Umzumbe from Virginia Airport. This would have taken approximately 20 minutes. But a storm in the mid to late afternoon in Durban grounded the helicopter. At approximately 16h25, the IFP was advised that the helicopter had been grounded by the weather and that it would not be able to take off.
The IFP then requested permission from the Commission to lodge the documents at the Durban office of the Commission, but this request was declined. The IFP approached the Electoral Court, which found in favour of the IFP on the basis that in 2006 in the case of African Christian Democratic Party v Electoral Commission and Others, the Constitutional Court had interpreted almost identical provisions which required parties to make election deposits to the Commission at the local office of the Commission to allow for some leeway.
However, the Constitutional Court distinguished that case from the present one, arguing that the previous case had dealt with money, which was fungible, and that there was therefore no central legislative purpose for requiring that deposits be made at the local office of the Electoral Commission.
There are, however, very good reasons why the Act required parties to lodge their papers at the local office of the Electoral Commission. That purpose, argued the court, is to promote the efficient processing and verification of election documents in order to ensure the fairness of an election.
The documentation required to be submitted under the Act would, by its nature, be more efficiently processed at the local level. It makes administrative sense, stated the court, that the processing of documents and checking whether all the required documentation has been properly filed would be done more efficiently in a decentralised manner.
In effect the court argued that there could easily be administrative chaos or gridlock if parties could lodge their papers at any office of the Electoral Commission. One of the benefits of a decentralised system of local document processing and verification is exactly that local offices can expeditiously process documents submitted in relation to the elections they are required to manage, and can coordinate, as necessary, with local parties and candidates to ensure that documents submitted comply with the provisions of the Act.
As Justice Ngcobo put it:
Having parties submit documents in those local offices where they intend to contest elections prevents uneven and unpredictable application flows and resultant pressure in local offices. This helps to avoid uncertainty on the part of the Commission as to how it can best allocate its financial and human resources between its various offices. It therefore prevents the severe administrative burden that would no doubt follow if parties could freely submit documents in the Commission office of their choosing, regardless of the proximity of that office to the location of the election to be contested.
The Court also trotted out an argument which it claimed clinched the deal. The rule, it said, “pays deference to the necessarily local nature of the democratic process in the context of municipal elections”. By providing for the local processing and verification of election documents, the submission requirements of the Act promote participation and transparency in the democratic process “at the very heart of where the democratic process is going to have its effect”. Voters’ perception that elections have been undertaken in a free and fair manner requires that democracy be seen to be done at the local level and these requirements would enhance that perception.
I am not sure I buy this argument. Surely very few voters would know or care where documents are submitted or processed. The symbolic importance of this rule is therefore, at best, overstated by the Court.
Surprisingly, given the rather bizarre circumstances under which the IFP failed to submit their documents and given the length it had gone to to try and meet the deadline, the Court also refused to entertain an argument that an exception should be made in extreme cases like this one. The Act just did not allow for this, it said.
Yet, identical provisions of the Act was interpreted in the ACPD case to allow for just such a flexible approach, albeit regarding the payment of deposits. The big difference was that here – unlike in the ACDP case which dealt with rules that were applicable to all parties – the IFP had requested a special dispensation which was frowned upon by the Court.
It is necessary that the integrity of the electoral process be maintained. Indeed, the acceptance of the election as being free and fair depends upon that integrity. Elections must not only be free and fair, but they must be perceived as being free and fair. Even-handedness in dealing with all political parties and candidates is crucial to that integrity and its perception by voters. The Commission must not be placed in a situation where it has to make ad hoc decisions about political parties and candidates who have not complied with the Act. The requirement that documents must be submitted to the local offices of the Commission does not undermine the right to vote and to stand for election. It simply gives effect to that right and underscores the decentralised and local nature of municipal elections.
Of course, some of us might argue that if a party is so disorganised and incompetent that it cannot even manage to meet the most important deadline of the election, why on earth would any voter trust that party to be effective in government. Why would we not laugh that party off the stage? Maybe die-hard ANC supporters would have more sympathy for the IFP, given the fact that its NorthWest officials had somehow managed to miss the deadline for registering some of its ward councillors in Potchefstroom. But for those of us who are not party-hacks and who try to face the facts head-on, such balls-ups seem to reflect rather badly on the party concerned.
Come to think of it, why would any political party wait until the last minute to submit its election documents to the Electoral Commission? Surely one would make sure that these documents are ready and that they are submitted days before the deadline to ensure that such last-minute problems do not arise. Although the Constitutional Court could therefore be criticised for a rather literal approach to thew interpretation of the Act, it is difficult to have much sympathy for the bumbling IFP.
So, perhaps insisting – for once – that a deadline is kept is not such a bad thing after all.BACK TO TOP