An Election Postponement as a Change of the Constitution: Its Democratic and Constitutional Implications

Abstract

ABSTRACT The impact of the COVID-19 pandemic on a possible postponement of the 2021 South African local government elections is analysed. The question was whether a court of law could constitutionally postpone the election and if so, would such a postponement constitute a legal amendment of the Constitution? In a brief literature review, four themes were identified, namely the ‘unamendability’ of a constitution, unconstitutional constitutional amendments, the ‘basic structure’ of constitutions’ doctrine and the ‘implicit limitations’ on amendments doctrine. The Electoral Commission of SA appointed the Moseneke inquiry for advice on whether the election will be free and fair while subject to the pandemic regulations. It recommended an election postponement beyond the constitutional time-limits which was tested by the Constitutional Court. The Court did not allow for a postponement but insisted on additional voter registrations. The conclusions are that the judiciary regarded ‘regular elections’ as a more binding constitutional principle than ‘free and fair elections’. Judicial amendments of the Constitution would be possible only in exceptional cases, which excluded the pandemic. The positive public perceptions about the election are qualified by a lower voter turnout, which results in compromising the quality of South Africa’s democracy, but only temporarily.