Tlokwe judgment: Steering a careful middle course

Norman McFarlane

Yet again, our Constitutional Court has demonstrated its vision in the hotly debated Tlokwe matter, handing down a unanimous judgment which neatly avoids a constitutional crisis, while at the same time setting the stage for much-needed corrective action to the voters roll, by the Independent Electoral Commission (IEC).

Depending upon which side one sits of the political divide, the judgment is a blessing or a curse, but irrespective of one’s view, it was the correct decision.

In a stinging judgment, Chief Justice Mogoeng Mogoeng noted that the IEC had failed in its statutory obligation to record physical addresses for all eligible voters on the voters roll, citing Section 16(3) of the Electoral Act (effective December 17 2003) which binds it to do so.

It found that the IEC’s inaction in this regard is inconsistent with its rule of law obligations imposed by section 1(c) of the Constitution – and is, therefore, invalid.

Addresses serve two purposes: allowing candidates in municipal elections (and by-elections) to target voters efficiently when canvassing, and to verify that voters in a particular voting district, are legitimately registered to vote there.

It was the contention of independent candidates in the 2013 Tlokwe municipal by-election, that lack of physical addresses on the voters roll failed both of the above tests, making it possible for bussed in voters to dramatically affect the outcome of an election.

The Constitutional Court upheld this view (November 30 2015), ordering the by-election outcome set aside and that fresh elections be held, once the IEC had rectified the defects in the Tlokwe voters roll.

In attempting to rectify the inequities in the Tlokwe segment of the voters roll, the IEC found that 1 000 voters were registered in incorrect segments of the voters roll, and that 4 500 voters potentially fell outside of the voting districts in which they were registered.

The IEC sent out notices of intention to remove said voters from the voters roll, and ended up removing 749 and 1 600 of these respective groups.

Eight days before the rescheduled Tlokwe by-election (February 16 2016), the independent candidates lodged a complaint with the IEC, that 4 160 voters still had no addresses included in the voters roll. the IEC explained that its understanding was that only available addresses – those already recorded in the voters roll – need be provided, along with any voters who had registered or re-registered since the original court ruling on the matter.

The Electoral Court, to which the independent candidates now turned, rejected the IEC’s argument, and made an order requiring the IEC to update the voters roll for Tlokwe with all available addresses, to whit addresses for all voters who had a physical address at that time.

The IEC appealed the ruling on the grounds that the Electoral Court’s ruling had much wider application, since by its reckoning the national voters roll lacks fully 12.2 million addresses.

The IEC appealed the ruling, applying for direct access to the Constitutional Court, and for good reason – an order either way would have potentially grave implications for our democracy.

With a local government election imminent – Wednesday August 3 – the Electoral Court’s ruling meant that the outstanding 12.2 million addresses not on the voters roll, would need to be recorded before the election, an impossible task.

Delaying the election is also not an option, because constitutionally (Chapter 7, Clause 159), that local government election must take place by no later than Thursday August 18, 90 days after the expiry of the five-year term of office of local authorities elected in the election of May 18 2011.

Faced with a Catch-22, the Concourt had to navigate a course which would avoid a constitutional crisis, while at the same time, not being seen to pander to any particular interest group. (There are those who want the poll delayed, and those who don’t, all for entirely selfish reasons.)

It did so by suspending its declaration of invalidity of the voters roll, and its order for the IEC to record all addresses on the national common voters roll (excepting Tlokwe Municipality) in time for the August 3 poll, by 18 months.

With an eye on the 2019 national and provincial government elections, the Concourt ordered the IEC to rectify the voters roll, by recording the addresses of all voters on the voters roll, that were reasonably available, as at December 17 2003 (the date Section 16(3) of the Electoral Act came into effect) by June 30 2018, and to show meaningful progress with the recording of addresses of voters registered post-December 2003, at six-monthly intervals thereafter.

The task faced by the IEC is not to be underestimated. If you live in a leafy suburb it is easy to have, and prove that you have, a physical address.

If you live in an informal settlement, it is infinitely more difficult to do so, but why should that disqualify you from casting your ballot?

The problem is solvable, and the IEC is already making progress in this regard, recording physical addresses of dwellings in relation to fixed landmarks, and even by GPS location, but that requires an IEC official to complete the task.

If you live in a leafy suburb, all you need to do, is present physical proof of address, such as a municipal account, a luxury most informal settlement dwel-lers do not have.

To have delayed the election for the time it is estimated the IEC will require to rectify the voters roll would violate the Constitution, and those who argue that the lack of addresses does make room for finagling, should remember that with the voters roll now officially closed – the August 3 poll has been promulgated – these addressless voters can only vote where they are registered, so no bussing can occur.

And besides, the 12.2 million registered voters with recorded addresses have voted since they first registered anyway, so why should this pose a challenge now?

Caught between a rock and a hard place, the Concourt once more applied its razor-sharp collective legal mind to a potentially disastrous constitutional conundrum, and crafted a creative solution that allows the August poll to proceed, while still holding the IEC to account for its legal obligations.