Premiers will be entitled to call a referendum soon

On the 23rd of January 2024, the Constitutional Court handed down a judgment dismissing the case by Kaapse Forum in their application to have the current Referendum Act of 1983 declared unconstitutional.

From the judgment:

“The Court considers that the […] respondents have a sufficient interest in the matter to justify their joinder and the joinder application should thus be granted. […] the Court considers that the case […] would in the ordinary course be sufficient to justify hearing the application.

However, the Court has concluded that it is not in the interests of justice to hear the application, having regard to the fact that the Electoral Commission Amendment Bill, B 15-2023 is pending before Parliament, which Bill seeks to address Parliament’s alleged failure to enact legislation to regulate the calling and holding of provincial referenda. The applicants will be entitled to apply for appropriate relief if the said Bill is not enacted within a reasonable period of time or is enacted in a form that is alleged to be inconsistent with the Constitution. The application must therefore be refused. The Court has decided not to award costs.”

The Bill in question, on which there is a great degree of pressure to pass in a reasonable amount of time, especially considering the delays caused by ConCourt appeals by independent candidates, there is an explicit provision for provincial elections to be held, and to be called by their respective Premiers:

“(3) Notwithstanding anything to the contrary in any other law contained, the Premier of a province may, in accordance with section 127(2)(f) of the Constitution, 1996, and after consultation with the Commission, by proclamation in the Gazette and in the Official Gazette of the province concerned-

(a) declare that a provincial referendum shall be held to ascertain the views of voters in all voting districts in that province on a matter specified in the proclamation;

(b) determine that the provincial referendum shall be held on a day or consecutive days and, subject to this Act, during the hours so specified;

(c) declare that all voters in all voting districts in the relevant province shall be entitled, in accordance with this Act, to vote at the provincial referendum;

(d) determine what question or questions to ascertain the views of voters in that province, must appear on the ballot paper; and (e) determine that more than one provincial referendum for the relevant province shall be held simultaneously to ascertain the views of voters in all voting districts in that province, on different matters.”

Despite delays, the IEC is preparing for the election within the constitutional 90-day window after the current National Assembly’s term ends in mid-May 2024. The IEC is concerned about low youth representation on the voters’ roll and is conducting voter education campaigns, including dedicated registration weekends and online registration, to increase youth participation.

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