The two risks are as follows: (a) exclusion of eligible voters from participating in the imminent local government elections, and (b) the consequences of the ConCourt varying the constitutional provision relating to a date/period within which elections should be held, thus usurping powers reserved for the national parliament in terms of sec 74 (1)(a) and (b) of the constitution. I suggest the court skilfully identified and treated these two risks through employing risk mitigation strategies by eliminating the probabilities of each risk from occurring.

Below I unpack the ConCourt's order and how in my view the justices' actions present invaluable lessons for risk managers, both in the public and private sectors.

In tackling the two risks:

The ConCourt creates two scenarios and/or conditionalities through para 5(a) as set out below. Para 5 (a) directs the IEC to "…determine whether it is practically possible to hold a voter registration weekend with a view to registering new voters and changing registered voters' particulars on the national voters' roll…".

SCENARIO 1

If the IEC finds it is possible to host a voter registration weekend as per normal, consequential, and reasonable changes to the elections timetable aimed at allowing for the registration of candidates must be made and published. These changes will be triggered by the new proclamation. Evidently, in this scenario, the court does not limit the changes to the timetable to those which would have been occasioned by the IEC holding a voter registration weekend, ref to para 5(c)(iii). If the court intended to limit candidate registration, it would have been as clear in para 5(c) as it is in para 5(d)(iii).

SCENARIO 2

If the IEC finds it is not possible to hold a voter registration weekend, only eligible voters may apply to register before the 10 Sep 2021. This provision excludes registered voters wishing to update their details. Deductive reasoning leads me to conclude that in this scenario, parties, and independents MAY NOT update their candidate list. Further, according to para 5(d)(iii), the only amendment which will occur in the election timetable in this scenario will be that which is caused by the opportunity created for new, eligible voters to register as per para 5(b)(ii). Consequently, the only other amendment to the election timetable in this scenario will be the insertion of the election date triggered by the proclamation determining a new election date as envisaged by para 5(d)(i).

Lessons and limitations

This experience teaches me that risk management is not meant to immobilise you through fear, but it should enable you to find innovative ways to achieve the ideal outcome. In ensuring that irrespective of the IEC position on holding a voter registration weekend, new eligible voters get to register, the ConCourt successfully mitigated the first risk referred to above. Ultimately, a risk manager must be bold, courageous, but must know their limits. In this instance the ConCourt was fully aware that it cannot usurp responsibilities of the national parliament.

Evidently, it is possible to reduce the probabilities of a risk event from occurring, provided the action plan is implemented. In this case, the ConCourt order Constitute that risk action plan. Lastly, we should learn that risk management is at its most valuable as a preventative exercise.

Let us discuss!!

These are my thoughts as we await the IEC to determine which scenario is possible within the 3 days allocated to it.

Molate Mashifane, writing in my personal capacity. I am not a lawyer