Former Deputy Chief Justice Dikgang Moseneke has recommended that the 2021 municipal elections be postponed to early 2022. There is no constitutional possibility of this recommendation being carried through legally. In the absence of a constitutional amendment, it can only be achieved unlawfully, despite what any court might say about it.

American law professors Randy Barnett and Lawrence Solum have written widely on the fundamental importance of the distinction between “interpretation” and “construction” in law. This is not yet a widely recognised distinction in South African legal circles, but this article should illustrate why it must be.

A simple example of the difference between interpretation and construction is as follows:

“We are going out to dinner at 17h00.” “We are going out to dinner at sundown.”

The first sentence is an example of something to be interpreted. There is no need to construct meaning. The meaning is plain from the text. The relevant people are leaving for dinner at five o’clock in the afternoon.

The second sentence is an example of a text that requires construction. When exactly “sundown” is, is vague. It could be anywhere between 16h30 and 18h00, even earlier or later, depending on where you are or how you subjectively judge the angle of the Sun. In such a case, meaning must be constructed. There must be elaboration and inquiry, and the conversing parties must have regard to certain “aids” or “rules”, like their past with another and how they have gone about their prior dinner arrangements.

Section 159(1) and (2) of the Constitution provide as follows:

“Terms of Municipal Councils

159. (1) The term of a Municipal Council may be no more than five years, as determined by national legislation. 

(2) If a Municipal Council is dissolved in terms of national legislation, or when its term expires, an election must be held within 90 days of the date that Council was dissolved or its term expired.” (my emphasis)

Within the relevant emphasised portions, the only word that might require construction, is “days”, as this could refer to business days or calendar days. When a legal term is undefined – and the Constitution does not define what it means by a “day” – it must be given its ordinary meaning. Throughout, the Constitution uses “days” in only two manners: “court days” and “days”. In this context, “court days” is irrelevant, and is limited to the provision on the rights of accused, detained, and arrested persons. Only “days” is relevant, and the ordinary meaning of “days” refers to calendar days.

The Constitution, in other words, is clear about when a municipal election must be held: within 90 days of the end of a municipal council’s term. 

The previous municipal elections took place on 3 August 2016. 3 August 2021 would be “five years” from that date. The next municipal elections must therefore take place anywhere between 5 May 2021 and 1 November 2021. On this the Constitution leaves no room for doubt, for vagueness, or for construction. What the Constitution says needs simply be read and complied with – interpreted.

If the Constitution provided that there must be an election “within a reasonable time”, or “a reasonably short time”, after the end of a municipal council’s term, there would be room aplenty for a court to intervene and potentially postpone the election. But this is simply not the case. The Constitution provides for a period of 90 days. The meaning is plain from the text, and there is no need for the construction of meaning. In fact, it would be unlawful to construct meaning where meaning is plain.

Moseneke’s recommendation clearly falls outside of what the law allows. 

As attorney Daniël Eloff explained in a recent interview with the Centre for Risk Analysis, the Rule of Law hangs in the balance. If we simply allow institutions like the Independent Electoral Commission (IEC) or even the courts to regard the provisions of the Constitution as mere guidelines or suggestions, the usefulness of the Constitution becomes questionable. Professor Barnett, in his Restoring the Lost Constitution, similarly argues that when construction is willy-nilly used to replace interpretation, the function of a constitution – to “lock-in” legal meaning, to safeguard rights, freedoms, and institutions – is undermined.

The Constitutional Court, which will likely be called upon to decide the issue of the postponement of the elections if the IEC implements Moseneke’s misguided recommendation, must itself operate within the confines of the law. Too many South Africans believe that the courts make the law from scratch, and what they say is automatically correct. This is not the case. The Constitutional Court cannot legally endorse the postponement of the municipal election past 1 November 2021, any more than it could turn the President into an absolute monarch or add ten more seats to its own bench. The Constitution leaves it no room to do so.

That the court cannot legally allow the postponement of the election does not mean that it will not do so unlawfully. It is a widely misrecognised fact in South Africa that even the courts can engage in unlawful behaviour. When a lower court misapplies the law and is overruled by a higher court, that lower court has effectively done something unlawful (bearing in mind that not everything that is unlawful means one is fined, imprisoned, or otherwise sanctioned). Even the highest court can, and does, get the law wrong. That is why the highest court can reverse its own prior decisions. 

A postponement of the 2021 municipal elections by the Constitutional Court will be unlawful, there is no room for debate.

If the precedent is set that elections can be postponed outside of the allowable limits contained in the Constitution, there is no reason to believe the government will restrain itself in the future. As Eloff explained, any number of future reasons could be given to justify another postponement. 

Term limits are a crucial feature in a constitutional democracy. They are not merely practical tools but exist for good political-philosophical reasons. No one politician or political entity may be allowed to occupy a position for too long a period, lest it start entrenching itself against any kind of political dissent. It might even be an unfortunate constitutional oversight – in South Africa and across the world – that it is allowable for a single political party to be returned to power ad infinitum. These limitations are crucial to the protection of freedom and civil society.

South Africans must rally to the defence of the Constitution and insist that the IEC not meddle with constitutional provisions with plain meanings. Above all, South Africans must not be intimidated – or flattered – by the fact that such luminaries like Moseneke and soon perhaps the Constitutional Court itself, might get the law wrong. It is the Constitution that is supreme, not the judges, and not the courts. 

The views of the writer are not necessarily the views of the Daily Friend or the IRR

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