Brief Summary

Constitutional Law — Electoral Act — Constitutionality of provisions regarding voter identification documents — The Democratic Party challenged the constitutionality of the Electoral Act's requirements for voter registration and voting documents, arguing that the provisions unfairly limited the right to vote and discriminated against vulnerable groups. The High Court found the limitations reasonable and justifiable under section 36 of the Constitution. The Constitutional Court held that the provisions did not limit the rights enshrined in the Constitution and dismissed the appeal, agreeing with the reasoning in the New National Party case regarding the validity of the Electoral Act's requirements.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application for leave to appeal (argued together with the merits) to the Constitutional Court against a judgment of a full bench of the Transvaal High Court. The proceedings formed part of urgent constitutional litigation brought shortly before the 1999 general election.

The applicant was The Democratic Party (DP), a political party represented in Parliament and contesting the forthcoming election. The first respondent was the Minister of Home Affairs, responsible for promulgation and implementation of the Electoral Act 73 of 1998. The second respondent was the Electoral Commission, established as an institution supporting constitutional democracy and responsible for administering elections.

The dispute arose against the background of an earlier, similar constitutional challenge launched by the New National Party (NNP) in another High Court. Both High Court challenges were dismissed. The Constitutional Court set both matters down as urgent and, by direction, dispensed with compliance with Rule 18 so that the applications for leave to appeal and (if granted) the merits could be addressed together.

The general subject-matter of the dispute was the constitutionality of Electoral Act provisions prescribing the identity documents required for registration and voting in the 2 June 1999 national election. The DP advanced substantially the same challenge as the NNP, but also raised an equality-based attack and complained that the High Court should have referred the matter for oral evidence.

2. Material Facts

The Electoral Act prescribed which identity documents potential voters needed in order to register and to vote in the impending general election. The DP challenged the constitutionality of those documentary requirements, contending that they unjustifiably excluded or burdened some eligible voters.

A central factual contention advanced by the DP was that bar-coded identity documents offered no advantage over older identity documents for purposes of registration and voting, and that there was therefore no reason to require bar-coded documents, particularly given that legislation existed providing for a future transition to identity cards.

The DP also relied on opinion-poll information gathered during the period August to October 1998, including surveys of the Human Sciences Research Council and a report titled Opinion 1999: Voter Participation in the 1999 Elections. On the DP’s case, these sources suggested that certain categories of potential voters were, in higher proportions, without the “correct” identity documents, and that the impact of the requirements could have partisan implications.

On the equality challenge, the judgment treated as material that the poll information predated the registration periods established after promulgation of the Electoral Act, and that no more recent evidence was furnished to show what happened after eligible voters were given the opportunity to register and, where necessary, obtain documents.

In relation to the DP’s contention about temporary identification certificates, the Court recorded that the reasoning in the related NNP matter did not depend on whether such documents could be issued; however, to the extent it was relevant, it was accepted (with reference to O’Regan J’s analysis in dissent in the NNP matter) that there was no legal impediment to the Department issuing temporary identification certificates under the Identification Act 68 of 1997, and that there was no evidence they were not being issued.

The High Court had held that the impugned Electoral Act provisions constituted a limitation of constitutional rights, but that the limitation was reasonable and justifiable under section 36 of the Constitution. In the Constitutional Court, the majority’s approach (consistent with the reasoning adopted in the NNP matter) was that the High Court’s limitation analysis was unnecessary because the impugned provisions were held not to limit the rights relied upon.

3. Legal Issues

The central legal questions were whether the impugned documentary requirements in the Electoral Act were constitutionally valid, and in particular whether they infringed the right to vote and/or related constitutional protections.

The DP’s main challenge (aligned with that in the NNP case) was framed as a constitutional attack asserting that there was no rational connection between the statutory documentary requirements and any legitimate governmental purpose; that the requirements infringed the right to vote; and that any such infringement was not justifiable under section 36. The DP also advanced the further contention in argument that the requirements were, in the circumstances, unreasonable, and that this unreasonableness rendered them inconsistent with section 19(3)(a) of the Constitution.

Two additional issues, identified as not having been considered in the NNP matter, were whether the impugned provisions produced indirect unfair discrimination (an equality challenge), and whether the High Court erred by refusing to refer the matter to oral evidence.

These issues involved a mixture of legal questions (the applicable constitutional framework and tests), application of law to fact (whether the legislation caused an impermissible disparate impact, and whether the evidentiary threshold was met), and an element of discretionary or evaluative judgment (whether to refer for oral evidence given urgency and materiality).

4. Court’s Reasoning

The Court granted leave to appeal for reasons similar to those given in the NNP matter. On the core constitutional attack against the documentary requirements, the Court held that the issues substantially mirrored those decided in New National Party of South Africa v Government of the Republic of South Africa and others. Goldstone J stated that the relevant arguments had been considered and dismissed in that judgment, and he expressly agreed with the reasoning of Yacoob J there. On that approach, the Court held that the High Court was wrong to treat the Electoral Act requirements as a limitation of rights, and accordingly the High Court’s section 36 limitation analysis was not required.

On the DP’s additional contention concerning temporary identification certificates, the Court indicated that the NNP reasoning did not depend on the Department’s ability to issue them. Nonetheless, it agreed with the conclusion reached by O’Regan J in her dissent in the NNP matter that the Identification Act 68 of 1997 created no legal impediment to issuing temporary identification certificates, and it noted the absence of evidence showing such documents were not being issued.

The equality argument

The DP’s equality submission was that, although facially neutral, the challenged provisions had the effect of indirectly discriminating against discrete vulnerable groups on one or more grounds listed in section 9(3) of the Constitution, including race, age, residence, belief, conscience, or political affiliation. The Court recorded that the DP did not seek to show intentional discrimination.

Assuming the correctness of the poll-based reports relied upon, the Court held that the evidence did not establish that the impugned statutory requirements had, in fact, produced the discriminatory effect alleged. The information relied upon was gathered before the registration opportunities created under the Electoral Act, and the DP presented no evidence showing which categories of people identified in the reports were among those who later applied for, obtained the necessary documents, and registered successfully. In the absence of evidence demonstrating the asserted impact after the Act’s promulgation and implementation, the Court held that it could not find the provisions unconstitutional on the basis advanced.

The Court further reasoned that there was no evidence that the categories identified had registered in smaller numbers proportionately than those outside the categories, and it observed that political parties might have conducted voter education drives to ensure eligible voters obtained correct documentation and registered. It also emphasised that laws of general application often affect different categories of people differently for many reasons, and that without evidence establishing that any differential impact was caused by the impugned legislation (as opposed to other causes), it would not be possible to determine whether the impact constituted unfair discrimination within the principles endorsed by the Court (with reference to Harksen v Lane NO and Others). On that basis, the equality ground failed.

The referral for evidence

The DP argued that the High Court erred by not referring the matter to oral evidence to obtain more accurate information about the numbers registered and those who had not yet received bar-coded identity documents, contending that such information was relevant to the Department’s capacity to issue necessary documents for registration and voting.

The Court held that the DP’s challenge was directed to the constitutionality of the impugned provisions, and did not seek relief aimed at implementation failures or the Department’s operational performance. For reasons given in the NNP matter, the Court held that the number of eligible voters who had not registered would not have been material to the constitutional challenge. It applied the same approach to the proposed enquiry into the Department’s capacity (as at the close of registration) to deliver outstanding bar-coded identity documents to those registered voters who had not yet received them.

The Court further expressed doubt as to whether evidence of subsequent events would be relevant to constitutionality. Even if admissible, it reasoned that evidence would have needed to traverse virtually every issue raised on affidavit, including complex questions of causation and capacity, and there was nothing to show that the evidence would have been decisive. The Court took into account the High Court’s reliance on the urgency of the matter, the need for a quick decision in light of the pending elections, and the absence of real evidence contradicting the Department’s assertion that it would be able to deliver outstanding documentation in time. In these circumstances, the Court held that error by the High Court in refusing a referral to oral evidence had not been shown (with a reference to Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier S.A. Polisie, Noord Transvaal).

Onus

In conclusion, the Court emphasised that the onus of establishing unconstitutionality of the impugned Electoral Act provisions as at the date of promulgation rested on the DP, following from the conclusion in the NNP matter that the provisions did not constitute a limitation of rights. The Court held that the DP did not discharge that onus.

O’Regan J recorded a dissent, stating she could not concur for the reasons given in her dissent in the NNP judgment delivered the same day.

5. Outcome and Relief

The Constitutional Court dismissed the appeal. It made no order as to costs, aligning with the High Court’s approach. In addressing costs, the Court noted the late promulgation of the Electoral Act and the conduct of government referred to in Langa DP’s judgment in the NNP matter as relevant contextual considerations.

Cases Cited

The judgment referred to New National Party of South Africa v The Government of the Republic of South Africa and others (CCT 9/99, Constitutional Court, judgment delivered 13 April 1999, unreported at the time). It cited Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC). It also cited Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier S.A. Polisie, Noord Transvaal 1970 (4) SA 350 (T).

Legislation Cited

The judgment referenced the Electoral Act 73 of 1998. It referred to the Constitution of the Republic of South Africa, 1996, including section 19(3)(a), section 36, section 9(3), and section 181(1)(f). It referenced the Electoral Commission Act 51 of 1996. It also referred to the Identification Act 68 of 1997, and to the continued validity of older identity documents under section 8(3) of the Identification Act 72 of 1986 and section 25(1) of the Identification Act 68 of 1997.

Rules of Court Cited

The Court referred to Rule 18 of the Rules of the Constitutional Court, and recorded that its requirements were dispensed with under directions issued due to urgency.

Held

The Court held that the DP’s constitutional challenge to the Electoral Act’s documentary requirements failed for the reasons addressed in the related NNP decision, with which the Court agreed. It held further that the DP’s equality-based attack could not succeed on the evidence presented, as the alleged disparate impact and causation by the impugned legislation were not established. It also held that the High Court had not been shown to have erred in refusing to refer the matter for oral evidence, given the nature of the constitutional challenge, doubts about relevance of later events, the breadth of issues that evidence would have had to cover, and the urgency surrounding the impending election. The appeal was therefore dismissed, with no costs order.

LEGAL PRINCIPLES

The judgment applied the principle that, where a constitutional challenge is brought to legislation and the impugned provisions are held (on the applicable constitutional framework) not to limit rights, the challenger bears the onus of establishing unconstitutionality on the grounds advanced, including by reference to the position at the date of promulgation.

On equality, the judgment applied the principle that an allegation of indirect discrimination requires a sufficient evidentiary foundation to establish the alleged differential impact and, importantly, that the differential impact is caused by the impugned legislation rather than by other factors. Absent such evidence, a finding of unfair discrimination cannot be made by reference to generalised potential effects or pre-implementation opinion-poll material.

On procedure, the judgment applied the principle that a refusal to refer a matter to oral evidence will not be interfered with where the proposed evidence is not shown to be material to the constitutional question as framed, where the relevance of subsequent events is uncertain, where the evidence would need to traverse extensive and complex issues without a clear prospect of being decisive, and where urgency and the need for a timely determination (particularly in an electoral context) weigh against such a referral.

Democratic Party v Minister of Home Affairs and Another (CCT11/99) [1999] ZACC 4; 1999 (3) SA 254; 1999 (6) BCLR 607 (13 April 1999)