Tlokwe could set local polls’ crisis in motion

Janet Smith

JOHANNESBURG: Julius Malema was still campaigning for the ANC in Tlokwe in 2011, and his drive had its entertainment. This came mostly through his lively crossing of swords with Helen Zille, who was then DA leader, and who Malema had cheekily dubbed “the dancing monkey”.

Certain her party would win in the heavily contested North West town, Zille brushed off her young adversary. After all, a new party, Cope, was also in the area as a disruptive force and the ANC was deeply divided.

But even those two heavyweights – Malema and Zille – could have no idea then how divisions in Tlokwe would play out over a number of years, potentially taking South Africa to the brink of a constitutional crisis.

Set to go to the poll for key by-elections in seven wards on Wednesday, its reputation as a political war zone continued to weigh down on it when those by-elections were postponed at the 11th hour by the Electoral Court on Tuesday.

And these were not only held back in Tlokwe, but also in the City of Cape Town, the Abaqulusi (Vryheid) municipality in KwaZulu-Natal, the Greater Letaba (Duiwelskloof) and Mutale municipalities in Limpopo, and in Oudtshoorn.

The by-elections across what amounts to 47 voting districts concerned at least 61 603 registered voters, and this is what is at the heart not only of the postponements, but also of the considerable challenge which now faces the Independent Electoral Commission (IEC).

The polls in all those areas have now been delayed for six weeks while the IEC and the independent candidates in Tlokwe, who brought the action to stop the process, wait for a detailed judgment to reveal the thinking of the court.

That takes us to mid-April, leaving the IEC with a mere four months thereafter to wrap up the local government elections (LGE). But this is only should it be allowed to proceed without having to verify the addresses of every one of the 25 million-odd voters in the country.

That’s what it could be faced with, after Tlokwe’s independent candidates disputed its interpretation of a Constitutional Court judgment in November.

Should the IEC not be able to run the LGEs in time to make the legislated deadline of August 16 (five years and 90 days to the day after the last local government elections on May 18, 2011), we could indeed be thrown into that constitutional crisis.

Voters suffering from heightened anxiety may see the worst-case scenario: that the LGEs are postponed, thereby potentially delaying the national elections set for 2019. For the IEC – an organisation whose excellent reputation was sullied by the lease scandal involving former chairperson Pansy Tlakula, and by events in Tlokwe in 2013 – there’s no choice. It has to make the August deadline.

The political strife in Tlokwe is, however, at the root of its challenges, particularly as the ANC attempts to realign itself there after dramatic events which began in 2012 when the DA briefly took over the mayoral seat.

The ANC was torn as it faced defiance from its own ward councillors who, like the opposition, were dead-set against its mayor Maphetle Maphetle, who they accused of corruption. The ruling party summarily dismissed its rebels, and the 2013 by-elections, which had to be held as a result of that, were set to be wrecked by the illegal busing in of voters from other wards.

That is what led to the Constitutional Court judgment in November, which said these had to be rerun, having contemplated whether the IEC had erred in its decision to conduct the by-elections, effectively without finalising the voters’ roll and without issuing relevant segments of the national roll to candidates inclusive of the addresses of voters.

The IEC appears to have the view that the Constitutional Court judgment was specifically prospective, meaning that the requirement to obtain an address stems only from the date of the court’s order. Its position was that those voters registered prior to November 30, 2015, in the absence of a conventional address having been provided, could not simply be removed.

While Cope was not fielding any candidates in Tlokwe this week, it spoke out on behalf of some independents it was supporting. It claims the IEC was indeed required to verify every address.

The IEC then insisted it had investigated registration in specific wards, and, as result, more than 2 000 people had already been removed from the roll.

The commission made another important point: if a voter does not have an address, they still have the right to vote. And with intense migration across provinces, it could be difficult to verify addresses of more nomadic South Africans who also have the right to vote, no matter their economic circumstances. The same would be true of the homeless. The only certainty is that it remains a criminal offence to register where you are not ordinarily resident.

The dissension at the Electoral Court could dramatically affect how the IEC approaches the LGE. And those who remember what happened in Tlokwe might feel a slight shiver. Its embattled state harks back to the final day of candidate submissions in 2011. Malema had warned that the ANC’s own infighting could hand the town to its enemies as attempts at list manipulation became ever more obvious.

The party did not have an easy win at that time, and it may not this year, either. But it was not a complainant in the Electoral Court matter this week, and neither was the DA. Presumably one has to look at the independents’ support base, and extrapolate politically. In whose interests is it to hold the by-elections – and perhaps even the LGE – back?

It’s highly likely that before the chaos in Tlokwe, there was simply an agreement behind the scenes that registration in a particular voting area was enough. But since Zuma’s administration, contestation has grown ever more heated.

For now, South Africans urgently need clarity from the Constitutional Court as to whether or not every voter’s address has to be verified before an election can be held. The IEC could appeal, but it would probably be more constructive to have a declaratory order from the Constitutional Court.

To have a constitutional conundrum in an election year is a very serious matter indeed.