Brief Summary

Constitutional Law — Voting rights of prisoners — Applicants, a convicted prisoner and an awaiting trial prisoner, sought to compel the Electoral Commission to enable prisoners to register and vote in the upcoming elections. The Transvaal High Court held that the Commission had no obligation to facilitate this process, asserting that any inability to register or vote was due to the prisoners' own actions. The Constitutional Court was asked to determine whether the right to vote, as enshrined in the Constitution, extends to prisoners and whether the Commission is required to take steps to ensure their participation in elections. The Court found that the right to vote is indeed a constitutional entitlement for all prisoners, and the Commission has a duty to facilitate their registration and voting, thereby overturning the High Court's decision.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned constitutional proceedings about the voting rights of prisoners in relation to the 1999 general elections. It came before the Constitutional Court as an appeal (with leave sought) against a decision of the Transvaal High Court (per Els J) which had, in effect, declined to require the Electoral Commission to make arrangements enabling prisoners to register and vote.

The parties were two prisoner applicants, Arnold Keith August (a sentenced prisoner) and Veronica Pearl Sibongile Mabutho (an awaiting-trial prisoner), acting in their own interests and on behalf of all prisoners. The respondents were the Electoral Commission, its Chairperson, and the Minister of Home Affairs and Minister of Correctional Services.

Procedurally, after correspondence in which the applicants sought an undertaking that arrangements would be made for prisoner participation in the elections, the applicants launched an application in the High Court in December 1998. The Commission indicated it would not oppose the application in substance and would abide a court decision, while undertaking to do what it could should a court direct it to enable prisoners to register and vote. The High Court nevertheless dismissed the application on the basis that prisoners’ predicament was “of their own making” and that the Commission had not unlawfully limited the right to vote. A certificate under rule 18 was effectively refused (a negative certificate). The applicants then approached the Constitutional Court for leave to appeal, and the Court directed that leave and the merits be argued together on an expedited basis given the proximity of the election date.

The general subject-matter of the dispute was whether, in the absence of legislation disqualifying prisoners from voting, the constitutional right to vote required the Commission (and associated state actors) to take positive steps to ensure that prisoners were afforded a practical opportunity to register on the voters’ roll and to cast their ballots.

2. Material Facts

A central background fact was that, in the first democratic elections in 1994, Parliament had determined that (subject to specified exceptions) prisoners could vote, and the 1993 Electoral Act had disqualified only certain categories, including some prisoners convicted of specified serious offences. Under that regime, the Commission was to make regulations for prisoner voting for those not excluded.

By contrast, for the 1999 general elections, the Electoral Act 73 of 1998 created a general framework for registration and voting and listed disqualifications from registration (including lack of citizenship, certain mental-health related categories, and lack of ordinary residence in the district). Prisoners were not included among the categories of disqualified persons. The statute also provided for special votes for specified categories of persons unable to attend voting stations, but it did not expressly mention prisoners.

It was common cause in the Constitutional Court that Parliament had not enacted a law disqualifying prisoners from voting for the 1999 election, and the Commission conceded that prisoners retained the right to vote in principle. The practical dispute arose because, on the record, no provision had been made in the 1998 Electoral Act, the Electoral Commission Act, or Commission regulations, and no arrangements had been implemented by the Commission, to enable prisoners to register and vote while incarcerated.

The applicants’ personal circumstances illustrated the alleged practical disenfranchisement. The first applicant was a convicted prisoner serving a long sentence for fraud; the second applicant was detained awaiting trial on fraud charges. They sought a declaration that prisoners were entitled to register and vote, and orders requiring the respondents to make necessary arrangements to enable the exercise of these rights.

The Commission’s answering material raised difficulties concerning the statutory requirement that a voter register in the district where the voter is “ordinarily resident”. It posed the interpretive question whether a prisoner’s ordinary residence is the place where they lived before incarceration or the prison itself. The Commission asserted that either interpretation presented difficulties, and it emphasised logistical, financial, and administrative burdens, especially if votes cast in prison would have to be transported for counting in various districts.

The High Court accepted the proposition that prisoners’ predicament was “of their own making” and treated this as a basis for declining relief, particularly given the perceived logistical difficulties. The High Court held that prisoners had the right to register and vote like other citizens, but effectively placed the burden on prisoners, notwithstanding incarceration.

A further set of facts was introduced by the amicus curiae (the Centre for Applied Legal Studies), which relied on prisoner statistics suggesting that a significant proportion of prisoners were awaiting trial and that many were detained because they could not afford bail or pay small fines. In the Constitutional Court’s resolution of the matter, however, it concluded that it was not necessary to decide the amicus’s equality-based argument, given its finding on the right to vote and the threatened infringement.

A key timing fact was that general voter registration closed on 15 March 1999, creating urgency as prisoners incarcerated throughout the registration period would, on the applicants’ case, have been practically unable to register at all.

3. Legal Issues

The central legal questions the Court was required to determine were whether, in the absence of legislation disqualifying prisoners from voting, the failure to make arrangements enabling prisoner registration and voting constituted a threatened infringement of the constitutional right to vote; and whether the Commission was under a positive legal duty to take reasonable steps to facilitate the registration and voting of eligible prisoners.

A significant issue of statutory interpretation arose as to the meaning of “ordinarily resident” in section 7(1)(b) of the Electoral Act 73 of 1998, and whether that concept could accommodate registration by prisoners in the voting district where the prison is situated.

The dispute concerned law and the application of law to fact, specifically the application of constitutional voting rights and statutory obligations to the practical realities of incarceration. It also involved an evaluative component concerning what constituted “reasonable arrangements” and the extent to which administrative or logistical concerns could justify inaction in the absence of a limiting law.

4. Court’s Reasoning

The Court located the dispute within the constitutional architecture of universal adult suffrage and the entrenched right of every adult citizen to vote in elections for legislative bodies. It emphasised that the 1996 Constitution entrenches voting rights in unqualified terms, and unlike the interim Constitution, does not contain an express provision authorising disqualifications by ordinary legislation; accordingly, any limitation would have to meet the requirements of section 36, including the requirement of a law of general application.

The Court accepted as decisive that Parliament had not limited prisoners’ voting rights for the 1999 election. In that setting, it rejected the High Court’s approach that treated prisoners as the authors of their misfortune and therefore as undeserving of special arrangements. The Court considered that the inability of prisoners to access ordinary registration and voting procedures was not simply a matter of personal choice but of physical incapacity imposed by the state through incarceration, with the consequence that inaction would in practice amount to effective disenfranchisement without statutory authority.

In developing this reasoning, the Court drew on the idea that the right to vote “by its very nature” requires positive state action: elections must be proclaimed, voting mechanisms established, and secrecy and integrity secured. It held that this structure of the right carries positive responsibilities for the institutions tasked with electoral administration. The Court relied on the Electoral Commission Act’s provision that the Commission must compile and maintain voters’ rolls by registering eligible voters using government data and voter-supplied information, treating this as reinforcing an affirmative obligation to take reasonable steps to ensure eligible voters are registered.

The Court further placed weight on the common-law principle, reinforced by constitutionalism, that prisoners retain all personal rights not taken away by law or necessarily inconsistent with incarceration. It rejected the notion that incarceration, by itself and without legislation, could operate as a de facto disqualification from voting.

On the interpretive question of “ordinarily resident”, the Court disagreed with the High Court’s narrow construction. It held that the phrase is not a technical term and must be interpreted contextually in light of the Electoral Act’s purposes and constitutional imperatives, including the Act’s direction that it be interpreted to give effect to constitutional guarantees and responsibilities. The Court treated the concept as serving an administrative purpose in allocating voters to districts and enabling manageable voting processes. It reasoned that, because prisoners are compelled to live in prison, and because the relevant date for ordinary residence is the date of registration, many prisoners incarcerated throughout the registration period would generally be ordinarily resident in prison for electoral-registration purposes. The Court recognised that people may have more than one residence and noted that, depending on circumstances, registration in the pre-incarceration district might be permissible, but found that the “ordinary residence” concept could and should be read in a manner that facilitates enfranchisement.

The Court also addressed and discounted the Commission’s reliance on generalized logistical concerns as a basis for declining relief. It observed that prisoners constitute a determinate class in a controlled environment and that no specific evidence had been provided demonstrating insuperable difficulties, particularly when the electoral framework already contemplated special voting arrangements for other categories. The Court rejected the argument that the existence of hypothetical claims by other groups with voting difficulties justified denying relief to prisoners who had brought a concrete, timeous claim and were, by reason of incarceration, unable physically to access ordinary voting procedures.

Given the absence of a disqualifying law, the Court held that there was no basis upon which the respondents could justify the threatened infringement under section 36, because the limitation clause requires a limitation “in terms of law of general application”. In the Court’s view, the practical effect of the existing arrangements was that prisoners would be disenfranchised “by logistics” rather than by law.

In crafting a remedy, the Court approached the matter as one involving a threatened breach of the right to vote and held that the applicants were entitled to effective relief. It tailored relief to those prisoners who had been incarcerated during each and every period of general registration between November 1998 and March 1999, since such persons had been effectively prevented from registering at all. It also declared voting entitlements for prisoners on election day who were registered, whether previously or pursuant to the order.

The Court refrained from prescribing the detailed operational measures for registration and voting, holding that the specifics were pre-eminently for the Commission. However, it required the Commission to file an affidavit setting out how it would comply, to provide certainty and allow public scrutiny. This approach reflected a discretionary remedial judgment shaped by urgency, institutional competence, and the need for practical implementation.

Finally, the Court held that because the applicants had been compelled to litigate in both courts to secure the relief to which they were entitled, costs should follow the result, including the costs of two counsel.

5. Outcome and Relief

The Constitutional Court granted leave to appeal and upheld the appeal. It set aside the High Court’s order and replaced it with declaratory and mandatory relief recognising prisoner voting and registration rights and compelling reasonable arrangements to implement those rights.

The Court declared that all persons who were prisoners during each and every registration period between November 1998 and March 1999, and who were not excluded from voting by section 8(2) of the Electoral Act 73 of 1998, were entitled to register as voters on the national common voters’ roll. It also declared that all persons who were prisoners on the date of the general election were entitled to vote if registered pursuant to the order or otherwise.

The Court ordered the respondents to make all reasonable arrangements necessary to enable registration and voting for the relevant prisoners. It further required the Electoral Commission (first respondent) to serve and lodge, by 16 April 1999, an affidavit explaining how it would comply with the arrangements for registration and voting, with the affidavit forming part of the public record.

The Electoral Commission was ordered to pay the applicants’ costs in the High Court and in the Constitutional Court, including the costs of the application for a certificate and including the costs occasioned by the employment of two counsel.

Cases Cited

Minister of Justice v Hofmeyr [1993] ZASCA 40; 1993 (3) SA 131 (A).

Goldberg and Others v Minister of Prisons and Others 1979 (1) SA 14 (A).

Woods v Minister of Justice, Legal and Parliamentary Affairs 1995 (1) SA 703 (ZSC).

S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391; 1995 (6) BCLR 665 (CC).

O'Brien v Skinner [1974] USSC 11; 414 US 524 (1973).

Minister of the Interior and Another v Harris and Others 1952 (4) SA 769 (A).

Harksen v Lane NO and Others [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (CC).

Buck v Parker 1908 TS 1100.

Biro v Minister of the Interior 1957 (1) SA 234 (T).

Fox v Stirk and another [1970] 2 QB 463 (CA).

Haig v Canada 105 DLR (4th) 577 (SCC).

Sauve v Canada (Attorney General) 7 OR (3rd) 481 (CAO).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 1(d), 19, 36, 38, 181(2), 190(1)(a)–(b)).

Constitution of the Republic of South Africa, Act 200 of 1993 (interim Constitution) (sections 6(c), 21(2)).

Electoral Act 73 of 1998 (sections 2(a), 6, 7(1), 8(2), 14(2), 33, 100).

Electoral Commission Act 51 of 1996 (section 5(1)(e)).

Electoral Act 202 of 1993 (section 16, section 76(1)).

Mental Health Act 18 of 1973.

Prevention and Treatment of Drug Dependency Act 20 of 1992.

Rules of Court Cited

Rule 18 of the Rules of the Constitutional Court.

Held

The Court held that, because no law of general application had been enacted to disqualify prisoners from voting, eligible prisoners retained the constitutional right to vote, and the failure to make arrangements enabling prisoners to register and vote constituted a threatened infringement of section 19 of the Constitution. It held that the Electoral Commission had an obligation to take reasonable steps to facilitate the registration and voting of eligible prisoners and that statutory concepts such as “ordinarily resident” must be interpreted in context in a manner that supports enfranchisement, which could include treating prisoners as ordinarily resident in prison for registration purposes.

The Court accordingly granted declaratory relief confirming prisoners’ entitlements to register (for those incarcerated throughout the registration periods) and to vote (if registered), and it ordered the making of reasonable arrangements as well as the filing of an affidavit detailing compliance. Costs were awarded against the Electoral Commission.

LEGAL PRINCIPLES

The right to vote entrenched in section 19 of the Constitution is expressed in unqualified terms, and any limitation of that right must comply with section 36, including the requirement that the limitation be effected in terms of law of general application.

Constitutional voting rights entail positive obligations on state institutions responsible for elections. In particular, the Electoral Commission’s statutory mandate to compile and maintain voters’ rolls supports an obligation to take reasonable steps to enable eligible citizens to register and vote, rather than treating the franchise as purely voter-driven where the state’s own actions make ordinary participation impossible.

Prisoners retain all rights not taken away by law or necessarily inconsistent with incarceration. Incarceration, without legislative disenfranchisement, cannot operate as a de facto basis for the denial of voting rights through administrative inaction.

Legislation concerning the franchise must be interpreted, where the text allows, in favour of enfranchisement rather than disenfranchisement, and context-sensitive terms such as “ordinarily resident” must be construed to promote the constitutional and statutory objectives of an effective electoral system consistent with universal suffrage.

Where a constitutional right is infringed or threatened, a court may grant appropriate relief, and the existence of a right requires an effective remedy; a right rendered valueless by the absence of practical mechanisms for its exercise is inconsistent with constitutional guarantees.

August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999)