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[2004] ZACC 10
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Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March 2004)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 03/04
MINISTER
OF HOME AFFAIRS
......................................................... Applicant
versus
NATIONAL
INSTITUTE FOR CRIME PREVENTION
AND THE
RE-INTEGRATION OF OFFENDERS (NICRO) .......... First Respondent
ELISE
ERASMUS .........................................................
Second Respondent
ROLAND
SCHWAGERL .........................................................
Third Respondent
THE
ELECTORAL COMMISSION ..........................................Fourth
Respondent
MINISTER
OF CORRECTIONAL SERVICES ........................ Fifth Respondent
Heard
on : 25 February 2004
Decided
on : 3 March 2004
JUDGMENT
CHASKALSON
CJ:
This
application is concerned with the right to vote enshrined in section
19(3) of the Constitution. We have been called upon to
deal with it
as a matter of urgency on the eve of the elections which are to be
held on 14 April 2004, some seven weeks after argument
was addressed
to us.
The
dispute arises out of the Electoral Laws Amendment Act
1
(the Amendment Act) which amends the Electoral Act.
2
The Amendment Act was promulgated on 6 November 2003 and brought
into force on 17 December 2003.
3
It introduced provisions into the Electoral Act which in effect
deprive convicted prisoners serving sentences of imprisonment
without the option of a fine of the right to participate in
elections during the period of their imprisonment. The crisp point
in this application is the constitutionality of these provisions.
The
proceedings have not taken a normal course. Litigation commenced in
the Cape High Court (the High Court) on 23 December 2003,
six days
after the Amendment Act was brought into force. An urgent
application was lodged on that date in the High Court by the
National Institute for Crime Prevention and the Re-integration of
Offenders (Nicro) and two convicted prisoners serving sentences
of
imprisonment, for an order declaring the provisions that deprive
serving prisoners of the right to participate in the upcoming
elections, to be inconsistent with the Constitution and invalid.
The
Minister of Home Affairs (the Minster) only lodged an answering
affidavit in the High Court on 29 January 2004, and on the following
day he applied urgently to this Court, through the State Attorney,
for an order allowing the dispute in the matter pending in the
High
Court to be brought directly to this Court for determination. Nicro
and the two convicted prisoners supported the application.
There is
no satisfactory explanation why this urgent matter was allowed to
stagnate in the High Court for over a month. It should
have been
dealt with promptly. If this had happened a decision could have
been given early in January and if the matter had then
to come to
this Court, it could have been disposed of without the extraordinary
difficulties that have arisen as a direct consequence
of this delay.
To
the knowledge of the parties, the Constitutional Court was not in
session on 30 January 2004. Following the lodging of the

application for direct access the Registrar, on instructions of the
Chief Justice, wrote to the State Attorney on 3 February 2004,
as
follows:
“
1. The delay in this matter
is due to the delay on the part of the respondents in filing their
answering affidavits. Some six weeks
have passed since the
application was served on the respondents and second respondent’s
affidavit has still not yet been lodged.
If that affidavit is lodged
expeditiously, and the applicant’s replying affidavit (if any) is
also lodged expeditiously, it should
be possible for the matter to be
disposed of in the Cape High Court during February. If either party
wishes to take the matter further
after that, the same papers could
be used, and a date allocated within a week of the arguments being
lodged in the Constitutional
Court.
2. The Constitutional Court is
in the process of moving from its existing premises to new premises
on Constitution Hill. That move
will only be completed on 13
February.
3. The papers presently before
us were only completed yesterday when the affidavits in the Cape High
Court were lodged with the registrar.
Arrangements have been made
for the papers to be sent to those judges who do not have access to
their chambers in Johannesburg.
4. As the parties wish the case
to be disposed of urgently they should make arrangements now for the
preparation and exchange of written
arguments which will be necessary
for an expeditious hearing in the High Court. That would be the
desirable course to follow.
5. An application for direct
access can only be granted on request by the Court itself. If there
are differences between the judges,
those will have to be resolved
before a decision can be taken. The Court is reluctant to deal with
matters without a judgment of
another court, and you should not
assume that direct access will be granted.
6. No communication has yet been
received from the attorneys for the respondents with regard to the
application for direct access.
The documents that have been lodged
will be referred to the judges of the Constitutional Court for their
consideration. It is essential,
however, that the communication
referred to in paragraph 16 of the founding affidavit be communicated
to the registrar without any
further delay.”
The
legal representatives of Nicro and the two prisoners took the view
that it was desirable for the matter to be dealt with by
the High
Court and applied for a hearing date there asking that the matter be
dealt with urgently. This was the correct course
to take.
4
The matter should, however, have been dealt with early in January
and not delayed for over a month. The Minister opposed the
application and asked the High Court to stay the proceedings before
it until his application for direct access to this Court had
been
determined.
This
resulted in a further delay. The judge who dealt with the
application in the High Court concluded that a decision by her on
the merits of the application would undermine the application for
direct access. She accordingly reserved judgment on the merits
of
the dispute and postponed the application pending a decision by this
Court whether to grant direct access. This proved to be
doubly
unfortunate. First, it delayed the process in the High Court.
Secondly, owing to an unexpected sad death in her family,
she would
not have been in a position to deliver the reserved judgment on the
merits promptly if this Court had refused direct
access. This
Court, which convened on 16 February 2004 for the current term,
refused the application for direct access. However,
in the light of
the facts set out above it was obliged to recall its order, grant
the application, and deal with the matter urgently
as a court of
first and final instance.
We
heard the application on 25 February 2004. It raises important
issues on which I would have preferred to have had more time
to
formulate a judgment. Unfortunately that is not possible because
further delay would frustrate any relief that this Court might
grant
to the applicants.
For
the purposes of this judgment, the parties will be referred to as
they were in the High Court application. Thus Nicro and the
two
prisoners serving sentences without the option of a fine who brought
the initial application in the High Court will be cited
as the
applicants, and the Minister of Home Affairs, the Electoral
Commission (the Commission) and the Minister of Correctional
Services will be cited as the respondents.
Background
to the impugned provisions
Section
1 of the Electoral Act provides that a “voter” is a South
African citizen who is 18 years old or older and whose name
appears
on the voters’ roll.
5
Section 1 of that Act, read with section 5, defines “voters’
roll” as the national common voters’ roll compiled and
maintained
by the chief electoral officer. It appears from section
8 of the Act that a person’s name will only be entered on the
voters’
roll once that person has registered as a voter.
6
Prior to its amendment, the Electoral Act contained no provisions
dealing specifically with prisoners serving sentences of
imprisonment.
If this had remained so, in terms of the decision of
this Court in
August and Another v Electoral Commission and
Others,
7
the Commission would have been obliged to allow prisoners to
register as voters and to vote in the upcoming elections and would

also have been obliged to provide the necessary facilities to enable
this to be done.
The
changes introduced into the Electoral Act by the Amendment Act
include sections 8(2)(f), and 24B(1) and (2). They read as follows:
“
8(2) The chief electoral
officer may not register a person as a voter if that person — . . .
(f) is serving a sentence of
imprisonment without the option of a fine.”
“
24B(1) In an election for the
National Assembly or a provincial legislature, a person who on
election day is in prison and not serving
a sentence of imprisonment
without the option of a fine and whose name appears on the voters’
roll for another voting district,
is deemed for that election day to
have been registered by his or her name having been entered on the
voters’ roll for the voting
district in which he or she is in
prison.”
“
24B(2) A person who is in
prison on election day may only vote if he or she is not serving a
sentence of imprisonment without the
option of a fine.”
In
effect, these changes disenfranchised prisoners serving sentences of
imprisonment without the option of a fine by precluding
them from
registering as voters and voting whilst in prison. Unsentenced
prisoners, and prisoners incarcerated because of their
failure to
pay fines imposed on them, retained the right to register and vote.
Special
provision was made by the Amendment Act to regulate the voting of
those prisoners who retained the right to vote. Under
section 8, a
person’s name may only be entered on the voters’ roll for the
voting district in which that person is ordinarily
resident. Where
a prisoner is “ordinarily resident” is regulated by two deeming
provisions. For registration purposes, a
prisoner is regarded to be
“ordinarily resident” in the voting district where that person
normally lived when not imprisoned.
8
For voting purposes, section 24B(1) stipulates that a prisoner who
is not serving a sentence of imprisonment without the option
of a
fine and whose name appears on the voters’ roll for another
district will be deemed for that election day to be registered
for
the voting district in which the prison is located.
9
Section
64 of the Electoral Act empowers the Commission to establish mobile
voting stations in a voting district.
10
In terms of section 64(1A)(b), introduced by the Amendment Act,
such mobile voting stations may be employed where necessary for
use
in a prison.
11
The
applicants who challenged the validity of the changes made in
respect of the voting rights of prisoners sought the following
relief in the notice of motion lodged with the urgent application.
First, an order declaring section 8(2)(f), the phrase “and
not
serving a sentence of imprisonment without the option of a fine”
in section 24B(1), and section 24B(2) of the Electoral Act
to be
unconstitutional and invalid; and secondly, an order directing the
second and third respondents to ensure that all prisoners
who are or
will be entitled, in terms of the Electoral Act, to vote in the
forthcoming elections, are afforded a reasonable opportunity
to
register as voters for and to vote in the forthcoming elections. If
granted, this relief would remove the provisions that

disenfranchised them.
I
turn now to deal with the arguments advanced on behalf of the
applicants in support of their claims.
Sections
1 and 3 of the Constitution
In
the founding affidavit the applicants rely in the first instance on
sections 1(d) and 3(2) of the Constitution which form part
of the
first chapter that contains the founding provisions of the
Constitution. They contend that sections 8(2)(f) and 24B(1)
and (2)
of the Electoral Act, which disenfranchise them, are inconsistent
with these provisions which are absolute and not subject
to
limitation in terms of the Constitution.
12
There
is no substance in this contention and counsel for the applicants
correctly did not seek to support it. Section 1 deals with
the
values of the Constitution and section 3 with the rights of
citizenship. Neither of these sections requires voting rights
to be
absolute and immune from limitation.
Section
1 reads as follows:
“
The Republic of South Africa
is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the
achievement of equality and the advancement of human rights and
freedoms.
(b) Non-racialism and
non-sexism.
(c) Supremacy of the
constitution and the rule of law.
(d) Universal adult suffrage, a
national common voters roll, regular elections and a multi-party
system of democratic government,
to ensure accountability,
responsiveness and openness.”
The
values enunciated in section 1 of the Constitution are of
fundamental importance. They inform and give substance to all the
provisions of the Constitution. They do not, however, give rise to
discrete and enforceable rights in themselves. This is clear
not
only from the language of section 1 itself, but also from the way
the Constitution is structured and in particular the provisions
of
Chapter 2 which contains the Bill of Rights.
The
first section of the Bill of Rights (which is section 7 of the
Constitution), provides:
“
(1) The Bill of Rights is a
cornerstone of democracy in South Africa. It enshrines the rights of
all people in our country and affirms
the democratic values of human
dignity, equality and freedom.
(2) The state must respect,
protect, promote and fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of
Rights are subject to the limitations contained or referred to in
section 36, or elsewhere in the Bill.”
The
rights entrenched in the Bill of Rights include equality, dignity,
and various other human rights and freedoms. These rights
give
effect to the founding values and must be construed consistently
with them. They are, however, not absolute and in principle
are
subject to limitation in terms of section 36(1) of the Constitution
which provides:
“
(1) The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including –
the nature of the right;
the importance of the
purpose of the legislation;
the nature and extent of
the limitation;
the relation between the
limitation and its purpose; and
less restrictive means to
achieve that purpose.”
Section
3 of the Constitution makes provision for a common and equal
citizenship. Section 3 provides:
“
(1) There is a common South
African citizenship
(2) All citizens are –
(a) equally entitled to the
rights, privileges and benefits of citizenship; and
(b) equally subject to the
duties and responsibilities of citizenship.
(3) National legislation must
provide for the acquisition, loss and restoration of citizenship.”
This
section includes both an entitlement to the rights that citizens have
and an obligation to comply with the duties and responsibilities
of
citizenship. The rights include the right to vote in elections. The
duties and responsibilities include at least an obligation
to respect
the rights of others and to comply with the law.
To
sum up, the right to vote is vested in all citizens. It is informed
by the foundational values in section 1 of the Constitution
and in
particular section 1(d). It is, however, not an absolute right. It
is subject to limitation in terms of section 36. Citizens
who
commit crimes break the law in breach of their constitutional duty
not to do so. It is within this framework that the challenge
to the
constitutionality of sections 8(2)(f) and 24B(1) and (2) of the
Electoral Act must be determined.
In
their founding affidavit, the applicants contend that various rights
that prisoners have were infringed by the provisions of
the
Electoral Act disenfranchising them. Although they based their
claim initially on the alleged infringement of the rights contained
in sections 9,
13
10,
14
12(1)(a),
15
15(1),
16
33,
17
35(2)(e),
18
and 35(3)(n)
19
of the Constitution, at the hearing they relied only on the right to
vote and the right to equality.
The
right to vote
The
right to vote is entrenched in section 19(3)(a) of the Constitution
which provides:
“
Every adult citizen has the
right –
(a) to vote in elections for any
legislative body established in terms of the Constitution, and to do
so in secret”.
As
Sachs J held in
August
:
“
the universality of the
franchise is important not only for nationhood and democracy. The
vote of each and every citizen is a badge
of dignity and of
personhood. Quite literally, it says that everybody counts.”
20
The right to vote “by its very nature imposes positive obligations
upon the legislature and the executive”.
21
This was reaffirmed in
New National Party of South Africa v
Government of the RSA and Others
22
where the “nature, ambit and importance” of the right to vote
was analysed by Yacoob J. He stressed that this right which is
fundamental to democracy requires proper arrangements to be made for
its effective exercise.
23
This is the task of the legislature and the executive which have the
responsibility of providing the legal framework, and the
infrastructure
and resources necessary for the holding of free and
fair elections.
In
terms of the Constitution, elections for the national assembly are
based on the national common voters’ roll,
24
and elections for provincial legislatures and municipal councils on
the province’s segment
25
and the municipality’s segment
26
of the national common voters’ roll respectively. Inclusion in
the national common voters’ roll is thus essential for the
exercise of the right to vote.
27
The
Constitution requires elections to be managed by the Commission in
accordance with national legislation.
28
The relevant legislation is the Electoral Act. It makes provision
for various matters pertaining to the running of elections
including
the registration of voters and the compilation of a national common
voters’ roll. The voters’ roll must contain
the names of all
registered voters and be kept open for registration until the date
of proclamation of the election date by the
President. Once the
election date has been proclaimed, the voters’ roll is closed and
persons whose names are not on the roll
may not vote in the
elections.
29
The implications of this for the relief claimed by the applicants
are dealt with later in this judgment.
The
Electoral Act curtails the right of convicted prisoners to vote in
elections in two respects. Convicted prisoners who on the
day of
the elections are serving a sentence of imprisonment without the
option of a fine are precluded by section 24B(2) from voting.

Convicted prisoners serving a sentence of imprisonment without the
option of a fine are precluded by section 8(2)(f) from registering
as voters whilst they are in prison. Thus, if they had not
registered before being imprisoned and are released from prison
after
the voters’ roll has closed but before the day of the
elections, they will not be able to vote even though they are no
longer
in prison.
Counsel
for the Minister correctly accepted that these provisions limit the
voting rights of convicted prisoners serving sentences
of
imprisonment without the option of a fine. Counsel contended,
however, that the limitation is justifiable in terms of section
36
of the Constitution. Whether or not that is so is the question that
has to be decided in this application.
The
limitation analysis
Section
36 calls for a proportionality analysis in which the question
ultimately
“
is one of degree to be
assessed in the concrete legislative and social setting of the
measure, paying due regard to the means which
are realistically
available in our country at this stage, but without losing sight of
the ultimate values to be protected.”
30
Counsel for the applicants submitted that the Minister has the onus
of proving that the admitted limitation of the right to vote
is
reasonable and justifiable and, if this cannot be established, the
application must succeed. Although “onus” is not infrequently
used in this context it is, as this Court has had occasion to point
out previously, an onus of a special type.
31
It is not the conventional onus of proof as it is understood in
civil and criminal trials where disputes of fact have to be
resolved.
It is rather a burden to justify a limitation where that
becomes an issue in a section 36 analysis. That is how it is
described
by Somyalo AJ in
Moise v Greater Germiston Transitional
Local Council
,
32
who said:
“
It is also no longer doubted
that, once a limitation has been found to exist, the burden of
justification under s 36(1) rests on the
party asserting that the
limitation is saved by the application of the provisions of the
section. The weighing up exercise is ultimately
concerned with the
proportional assessment of competing interests but, to the extent
that justification rests on factual and/or policy
considerations, the
party contending for justification must put such material before the
Court. It is for this reason that the government
functionary
responsible for legislation that is being challenged on
constitutional grounds must be cited as a party. If the government
wishes to defend the particular enactment, it then has the
opportunity - indeed an obligation - to do so. The obligation
includes
not only the submission of legal argument but the placing
before Court of the requisite factual material and policy
considerations.
Therefore, although the burden of justification
under s 36 is no ordinary
onus
, failure by government to
submit such data and argument may in appropriate cases tip the scales
against it and result in the invalidation
of the challenged
enactment.”
33
This
calls for a different enquiry to that conducted when factual
disputes have to be resolved. In a justification analysis facts
and
policy are often intertwined. There may for instance be cases where
the concerns to which the legislation is addressed are
subjective
and not capable of proof as objective facts. A legislative choice
is not always subject to courtroom fact-finding and
may be based on
reasonable inferences unsupported by empirical data. When policy is
in issue it may not be possible to prove that
a policy directed to a
particular concern will be effective. It does not necessarily
follow from this, however, that the policy
is not reasonable and
justifiable. If the concerns are of sufficient importance, the
risks associated with them sufficiently high,
and there is
sufficient connection between means and ends, that may be enough to
justify action taken to address them.
Where
justification depends on factual material, the party relying on
justification must establish the facts on which the justification
depends. Justification may, however, depend not on disputed facts
but on policies directed to legitimate governmental concerns.
If
that be the case, the party relying on justification should place
sufficient information before the court as to the policy
that is
being furthered, the reasons for that policy, and why it is
considered reasonable in pursuit of that policy to limit a
constitutional right. That is important, for if this is not done
the court may be unable to discern what the policy is, and the
party
making the constitutional challenge does not have the opportunity of
rebutting the contention through countervailing factual
material or
expert opinion. A failure to place such information before the
court, or to spell out the reasons for the limitation,
may be fatal
to the justification claim. There may however be cases where
despite the absence of such information on the record,
a court is
nonetheless able to uphold a claim of justification based on common
sense and judicial knowledge.
34
Ultimately
what is involved in a limitation analysis is the balancing of means
and ends. This entails an analysis of all relevant
considerations
“
to determine the
proportionality between the extent of the limitation of the right
considering the nature and importance of the infringed
right, on the
one hand, and the purpose, importance and effect of the infringing
provision, taking into account the availability
of less restrictive
means available to achieve that purpose.”
35
In this
process, different and sometimes conflicting interests and values may
have to be taken into account. Context is all important
and
sufficient material should always be placed before a court dealing
with such matters to enable it to weigh up and evaluate the
competing
values and interests in their proper context.
With
this in mind, I turn now to an examination of the reasons given on
behalf of the Minister for denying the vote to prisoners
sentenced
to imprisonment without the option of a fine.
Contentions
advanced on behalf of the Minister
Mr
Gilder, the Director-General of Home Affairs, in an answering
affidavit lodged on behalf of the Minister gives the government’s
reasons for limiting the voting rights of prisoners. He says that
prior to the passing of the Amendment Act consideration was
given to
the need to make provision for voting by people qualified to vote,
but who would not be able to find their way to polling
stations on
election day. Arrangements necessary for this purpose would involve
sanctioning the casting of special votes at places
other than
polling stations, and the use of mobile voting stations on election
day to enable people unable to travel to polling
stations to cast
their votes.
According
to Mr Gilder, both these procedures involve risks for the integrity
of the voting process. Scrutiny to ensure that there
is no
tampering with special votes or interference with voters at mobile
voting stations presents certain difficulties. Arrangements
have to
be made for the storage and transportation of the special votes to
places where they can be counted and this too has risks.
Moreover,
the provision of special arrangements of this nature puts a strain
on the logistical and financial resources available
to the
Commission for the purpose of conducting the elections and this too
has to be taken into account.
For
these reasons, the categories of people for whom special
arrangements should be made had to be limited. The favoured
categories
were people unable to travel to polling stations because
of physical infirmities, disabilities or pregnancy, persons and
members
of their household absent from the Republic on government
service, and people who would be absent from their voting districts
on
election day because of duties connected with the elections.
In
addition, attention was given to the position of prisoners. Regard
was had to the decision of this Court in
August
36
where it was held that absent legislation preventing them from doing
so, prisoners have a constitutional right to vote, and the
Commission has no power to disenfranchise them by failing to make
adequate provision for this vote. The question whether legislation
disqualifying prisoners or categories of prisoners from voting could
be justified under section 36 of the Constitution was not
raised in
the
August
case and the judgment specifically refrained from
dealing with that issue.
37
According
to Mr Gilder, it was appreciated that in the light of this judgment,
unless the position of prisoners was addressed in
legislation,
arrangements would have to be made for them to vote. He says that
it was decided that some but not all prisoners
should be allowed to
vote. A distinction was made between three classes of prisoners.
Awaiting trial prisoners were entitled
to the benefit of the
presumption of innocence and should not be excluded from voting.
Prisoners sentenced to a fine with the
alternative of imprisonment
who were in custody because they had not paid the fine should also
be allowed to vote. Their being
in custody was in all probability
due to their inability to pay the fines and they should not lose the
right to vote because of
their poverty. Prisoners serving sentences
of imprisonment without the option of a fine were, however, in a
different category.
It was considered reasonable to deny them the
right to register or vote whilst they were serving their sentences.
Mr
Gilder says that the main rationale for this is that these prisoners
have been deprived of their liberty by a court after a fair
trial.
This has various consequences. Because their liberty has been
curtailed, they are unable to avail themselves of the ordinary
facilities made available for voter registration and voting. If
they were not excluded from registering and voting then, in the
light of the decision in the
August
case,
38
special provision would have had to have been made for them to vote.
There are, however, other categories of persons who for good
reasons have difficulty in getting to registration and voting
stations. Rather than putting the scarce resources of the state
at
the disposal of convicted prisoners, such resources should, he
contends, be used for the provision of facilities to enable law
abiding citizens to register and vote.
The
main thrust of the justification offered by him was that it would be
unfair to make provision for voting by prisoners and not
to do the
same for law abiding citizens unable to vote. Although counsel for
the Minister correctly did not support this contention,
Mr Gilder
went so far as to contend in his affidavit that the prisoners had
not been deprived of their right to vote saying: “There
was no
denial of the right to vote. There was simply a refusal to make
special arrangements.” A similar contention was specifically
rejected by this Court in
August
.
39
When people are incarcerated under the laws of the country and no
arrangements are made for them to vote, it cannot be said that
their
right to vote has not been impaired. The contention is also
untenable in the light of section 24B(2) of the Electoral Act
which
provides in express terms that prisoners may only vote if they are
not serving sentences of imprisonment without the option
of a fine.
Mr
Gilder also referred to the fact that various open and democratic
societies curtail the right of prisoners to vote. He says
that it
is reasonable to do so, particularly in a country like ours where
there are strong feelings against the high level of crime.
It would
not be fair, he says, to devote resources to criminals who are
responsible for their own inability to vote, if similar
provision
cannot be made for deserving categories of people who through no
fault of their own are unable to register or attend
polling stations
on election day. Counsel for the Minister submitted that making
provision for convicted prisoners to vote would
in these
circumstances send an incorrect message to the public that the
government is soft on crime.
Logistics
and expense
Counsel
for the applicants contended that issues such as cost are not
relevant to an enquiry into the limitation of rights. In
Ferreira
v Levin NO and Others: Vryenhoek and Others v Powell NO and Others
,
40
Ackermann J pointed out that problems involving resources cannot be
resolved in the abstract “but must be confronted in the context
of
South African conditions and resources — political, social,
economic and human”.
41
Whilst it is true, as Ackermann J explained in his judgment, that
what is reasonable in “one country with vast resources, does
not
necessarily justify placing an identical burden on a country with
significantly less resources”
42
the right to vote is foundational to democracy which is a core value
of our Constitution. In the light of our history where denial
of
the right to vote was used to entrench white supremacy and to
marginalise the great majority of the people of our country, it
is
for us a precious right which must be vigilantly respected and
protected.
Resources
cannot be ignored in assessing whether reasonable arrangements have
been made for enabling citizens to vote. There is
a difference,
however, between a decision by Parliament or the Commission as to
what is reasonable in that regard, and legislation
that effectively
disenfranchises a category of citizens.
In
the present case, however, it is not necessary to take this issue
further for the factual basis for the justification based on
cost
and the lack of resources has not been established. Arrangements
for registering voters were made at all prisons to accommodate
unsentenced prisoners and those serving sentences because they had
not paid the fines imposed on them. Mobile voting stations
are to
be provided on election day for these prisoners to vote. There is
nothing to suggest that expanding these arrangements
to include
prisoners sentenced without the option of a fine will in fact place
an undue burden on the resources of the Commission.
Apart from
asserting that it would be costly to do so, no information as to the
logistical problems or estimates of the costs
involved were provided
by Mr Gilder. The Commission abided the decision of the Court. It
lodged affidavits to explain its attitude
to the Court, and was
represented by counsel at the hearing. It did not place any
information before the Court in regard to costs
and logistics and
did not suggest that it would be unable to make the arrangements
necessary to enable all prisoners to vote.
It
will no doubt be costly and logistically difficult because of time
pressures to go through the registration process again for
the
benefit of prisoners who were not previously allowed to register.
But if that be necessary, the added cost and allocation
of human
resources will be due largely to the prior exclusion.
In
so far as this aspect of the case is concerned, the burden of
justifying the limitation falls at the first hurdle and it is not
necessary to engage in the proportionality analysis that would have
been necessary if the factual underpinning for the contention
based
on lack of resources had been established.
Favouring
prisoners over other voters
There
is no substance in the contention that prisoners would be favoured
over others who have difficulty in attending polling stations
if
arrangements are made to enable them to register and vote at the
prisons in which they are detained.
Prisoners
are prevented from voting by the provisions of the Electoral Act and
by the action that the state has taken against them.
Their position
cannot be compared to people whose freedom has not been curtailed by
law and who require special arrangements to
be made for them to be
able to vote. Whether the failure to make such arrangements for
particular categories of persons is reasonable
and justifiable will
depend on the facts of those cases. We are not called upon to
consider that in the present case. The mere
fact that it may be
reasonable not to make special arrangements for particular
categories of persons who are unable to reach or
attend polling
stations on election day does not mean that it is reasonable to
disenfranchise prisoners. Whether or not that is
reasonable as a
matter of policy raises different considerations.
Policy
Mr
Gilder says in his affidavit that
“
in a country in which crime
is a major problem and there is a strongly negative attitude to
criminals it would be highly insensitive,
and indeed irresponsible,
to say to law-abiding citizens that some of the resources which could
have been utilised to ameliorate
the effect of the obligation to get
themselves to their voting stations have been diverted to those who
have infringed their rights.
This applies especially to victims of
crimes, whether involving violence or even a crime such as theft.
Confidence in the electoral
process could be seriously undermined.”
Counsel
for the Minister submitted that this gives rise to a concern that if
prisoners are allowed to vote that will send a message
to the public
that the government is soft on crime. Counsel pointed out that this
perception is not correct, and, as appears from
Mr Gilder’s
affidavit, the government has in fact taken various stringent
measures to combat crime.
This
Court has previously expressed concern about the need
“
to ensure that the alarming
level of crime is not used to justify extensive and inappropriate
invasions of individual rights.”
43
A fear
that the public may misunderstand the government’s true attitude to
crime and criminals provides no basis for depriving prisoners
of
fundamental rights that they retain despite their incarceration.
44
It could hardly be suggested that the government is entitled to
disenfranchise prisoners in order to enhance its image; nor could
it
reasonably be argued that the government is entitled to deprive
convicted prisoners of valuable rights that they retain in order
to
correct a public misconception as to its true attitude to crime and
criminals.
I
will assume that Mr Gilder intended to convey something different.
That at the level of policy it is important for the government
to
denounce crime and to communicate to the public that the rights that
citizens have are related to their duties and obligations
as
citizens. Such a purpose would be legitimate and consistent with
the provisions of section 3 of the Constitution.
The justification of such a policy, however, raises difficult and
complex issues. This is well illustrated by the decision of
the
Supreme Court of Canada in
Sauvé v Canada (Chief Electoral
Officer)
.
45
In 1988, Mr Sauvé, a convicted prisoner serving a
sentence of imprisonment, unsuccessfully challenged the
constitutionality
of a provision of the Canada Elections Act
46
which in effect deprived convicted prisoners of their right to vote
whilst serving their sentences.  On appeal, the Supreme
Court
of Canada disposed of the matter summarily in an oral judgment
holding that the legislation did not meet the minimum impairment
test required for the limitation of rights in Canada.
47
Following this decision new legislation was prepared in which
prisoners sentenced to two years’ imprisonment or more were
denied
the right to vote whilst in prison.  That legislation was
preceded by an investigation into the matter by a special
committee
on electoral reform which reviewed a report by a Commission (the
Lortie Commission)
48
which had previously considered the same issue. That Commission had
recommended that only those prisoners who had been convicted
of an
offence punishable by a maximum of life imprisonment and who
had been sentenced to imprisonment for ten years or more
should be
disqualified from voting.  The report of the Special Committee
is referred to in the judgment of Gonthier J who
said that the
Committee
“
spent a great deal of time
trying to determine whether a two year cutoff or five years or seven
years or ten years (as recommended
by the Lortie Commission) was more
justifiable. Eventually the Special Committee recommended a two-year
cutoff since, in their view,
serious offenders may be considered to
be those individuals who have been sentenced to a term of two years
or more in a correctional
institution”.
49
The
Canadian government contended that the disqualification served two
broad objectives: to enhance civic responsibility and respect
for
the rule of law; and to provide additional punishment, or “enhance
the general purposes of the criminal sanction”.
50
It
appears from the judgments in the
Sauvé
case that the record
of evidence included details of the previous reports on whether it
would be appropriate and consistent with
Canadian values to
disqualify prisoners from voting.  There was also a
considerable body of expert evidence dealing with this
issue. In
dealing with the minimum impairment test, the Crown and its experts
gave three reasons for supporting the legislation.
They were:
“
only prisoners serving
sentences of two years or more are disenfranchised, and thus the
provision only targets what Parliament has
identified as those who
have perpetrated ‘serious offences’; the disenfranchisement is
temporary, in the sense that the vote
returns to the offenders once
they leave jail; and the return of the vote once the offender leaves
jail is automatic.”
51
The
Supreme Court of Canada divided 5 to 4 on the decision. The
majority took the view that the government had failed to establish
a
rational connection between the denial of prisoners’ right to vote
and the objectives of enhancing respect for the law and
ensuring
appropriate punishment. McLachlin CJ, writing for the majority,
said:
“
The right of all citizens to
vote, regardless of virtue or mental ability or other distinguishing
features, underpins the legitimacy
of Canadian democracy and
Parliament’s claim to power. A government that restricts the
franchise to a select portion of citizens
is a government that
weakens its ability to function as the legitimate representative of
the excluded citizens, jeopardises its claims
to representative
democracy, and erodes the basis of its right to convict and punish
law-breakers.”
52
She
concluded this part of her judgment as follows:
“
When the facade of rhetoric
is stripped away, little is left of the government’s claim about
punishment other than that criminals
are people who have broken
society’s norms and may therefore be denounced and punished as the
government sees fit, even to the
point of removing fundamental
constitutional rights. Yet, the right to punish and to denounce,
however important, is constitutionally
constrained. It cannot be
used to write entire rights out of the Constitution, it cannot be
arbitrary, and it must serve the constitutionally
recognised goal of
sentencing. On all counts, the case that section 51(e) [of the
Canada Elections Act] furthers lawful punishment
objectives fails.”
53
She
went on to question whether the measure would, if rational, have met
the minimum impairment test and the requirements of proportionality,
and concluded that it did not.
Gonthier
J writing for the minority took a different view, saying:
“
Given that the objectives are
largely symbolic, common sense dictates that social condemnation of
criminal activity and a desire to
promote civic responsibility are
reflected in the disenfranchisement of those who have committed
serious crimes. This justification
is rooted in a reasonable and
rational social and political philosophy which has been adopted by
Parliament. Further, it can hardly
be seen as ‘novel’, as stated
in the Chief Justice’s reasons, at para 41. The view of the courts
below is that generally supported
by democratic countries. Countries
including the United States, the United Kingdom, Australia, New
Zealand, and many European countries
such as France and Germany,
have, by virtue of choosing some form of prisoner disenfranchisement,
also identified a connection between
objectives similar to those
advanced in the case at bar and the means of prisoner
disenfranchisement.”
54
Gonthier J distinguished the first
Sauvé
case
55
on the grounds that it dealt with a blanket exclusion of prisoners
regardless of the duration of their incarceration, and concluded
that the two year line drawn by Parliament after an exhaustive
investigation of the matter was an acceptable line:
“
Since Parliament has drawn a
line which identifies which incarcerated offenders have committed
serious enough crimes to warrant being
deprived of the vote, any
alternative line will not be of equal effectiveness. Equal
effectiveness is a dimension of the analysis
that should not be under
emphasised, as it relates directly to Parliament’s ability to
pursue its legitimate objectives effectively.
Any other line insisted
upon amounts to
second-guessing
Parliament as to what amounts
to a ‘serious’ crime.”
56
Conclusion
In
a case such as this where the government seeks to disenfranchise a
group of its citizens and the purpose is not self-evident,
there is
a need for it to place sufficient information before the Court to
enable it to know exactly what purpose the disenfranchisement
was
intended to serve. In so far as the government relies upon policy
considerations, there should be sufficient information to
enable the
Court to assess and evaluate the policy that is being pursued. In
this regard, and bearing in mind that we are concerned
here with
legislation that disenfranchises voters, I agree with the comments
of McLachlin CJ in the second
Sauvé
case:
“
At the end of the day, people
should not be left guessing about why their
Charter
rights
have been infringed. Demonstrable justification requires that the
objective clearly reveal the harm that the government hopes
to
remedy, and that this objective remains constant throughout the
justification process. As this Court has stated, the objective
‘must
be accurately and precisely defined so as to provide a clear
framework for evaluating its importance, and to assess the precision
with which the means have been crafted to fulfil that objective’”.
57
I
have dealt in some detail with the second
Sauvé
case
58
because the two judgments are both compelling and articulate lucidly
the case for and against prisoner disenfranchisement. What
will be
apparent from the reference to the two judgments is that the present
case is markedly different from
Sauvé
. The main thrust of
the justification in the present case was directed to the logistical
and cost issues which cannot be sustained.
The policy issue has
been introduced into the case almost tangentially. In contrast, the
detailed record in the second
Sauvé
case contained evidence
which addressed the issues relevant to the policy decisions to
disenfranchise prisoners, and the purpose
that it would serve. In
the present case we have only statements such as that made by
counsel that the government does not want
to be seen to be soft on
crime, and that made by Mr Gilder that it would be unfair to others
who cannot vote to allow prisoners
to vote.
Moreover,
we are concerned with a blanket exclusion akin to that which failed
to pass scrutiny in the first
Sauvé
case.
59
Mr Gilder mentions crimes involving violence or even theft, but the
legislation is not tailored to such crimes. Its target is
every
prisoner sentenced to imprisonment without the option of a fine. We
have no information about the sort of offences for which
shorter
periods of imprisonment are likely to be imposed, the sort of
persons who are likely to be imprisoned for such offences,
and the
number of persons who might lose their vote because of comparatively
minor transgressions. In short we have wholly inadequate
information on which to conduct the limitation analysis that is
called for. Moreover, the provisions as formulated appear to

disenfranchise prisoners whose convictions and sentences are under
appeal. Another relevant factor to consider is the fact that
the
Electoral Act prohibits all prisoners sentenced to imprisonment
without the option of a fine from voting, while the Constitution
permits a prisoner serving a sentence of imprisonment of less than
12 months without the option of a fine to stand for election.
60
No explanation is given, and none is apparent, as to why a person
who qualifies to be a candidate should be disqualified from
voting.
In the circumstances, the attempt by the Minister to justify the
limitation fails, and the challenge to the constitutionality
of the
legislation on the ground that it infringes the right to vote must
be upheld. That being so, there is no need to discuss
the case
based on the right to equality, and whether in the circumstances of
this case it should be treated separately or taken
only as
reinforcing the right to vote, which is the primary right on which
the applicants rely.
Remedy
As
stated above, the Commission indicated its intention to abide the
judgment of this Court.
61
Though it did so, it also filed heads of argument and was
represented at the hearing. An affidavit was filed in the
proceedings
before the High Court by the chief electoral officer and
a further affidavit filed in this Court made by the Commission’s
attorney.
In
its heads of argument and in the affidavit filed shortly before the
hearing in this Court, the Commission drew attention to the
fact
that the election date of 14 April 2004 had formally been proclaimed
on 11 February 2004
62
and that the voters’ roll had closed on that date in terms of
section 24 of the Electoral Act. The Commission also noted that
the
voters’ roll had been certified in terms of section 24(2) of the
Electoral Act on 20 February 2004. Accordingly, it was
argued, the
consequential relief sought by the applicants would no longer be
competent as the roll could not be re-opened or supplemented
in
terms of the Electoral Act. Moreover, it was argued that it would
not be competent for this Court to grant an order requiring
the
voters’ roll to be re-opened to permit the registration of
prisoners.
Section
24 of the Electoral Act provides as follows:
“
(1) The voters’ roll, or
the segments of the voters’ roll that must be used for an election,
are those as they exist on the day
the election is proclaimed.
By not later than the relevant
date stated in the election time table, the chief electoral officer
must certify the voters’ roll
to be used in that election and
publish it by making it available for inspection at the following
venues:
At the Commission’s head
office, the segments for all voting districts in which the
election will take place;
in each province, at the
office of the Commission’s provincial representative, the
segments for all voting districts in
the province in which the
election will take place; and
at the office of each
municipality, the segments for all voting districts in that
municipality in which the election will
take place.”
This
provision, counsel for the Commission argued, effectively barred any
further registration once the roll had closed on the date
the
elections were proclaimed.
Section
24 of the Electoral Act is an important provision which promotes the
conduct of free and fair elections in accordance with
the
fundamental values of our Constitution.
63
The process of compilation of the voters’ roll is carefully
regulated by the Electoral Act. It requires timeous completion
of
the roll,
64
and affords voters and political parties an opportunity to examine
and, where appropriate, object to the voters’ roll
65
so that they can be satisfied that the roll has been properly
compiled. Timeous closure of the roll enhances public confidence
in
the elections by avoiding complaints that the roll has been tampered
with at the last minute or in some improper fashion. The
roll
accordingly remains open for inspection as provided for in section
24(2). We must not underestimate the importance of these
provisions
as key to protecting the legitimacy of democratic elections.
In
response to the argument raised by the Commission, the applicants
lodged an application seeking to amend the relief they sought.
They
sought the addition of the following paragraphs to their notice of
motion:
“
3A Insofar as it is
necessary, the second respondent and its duly authorised officials
are ordered and directed forthwith to make
the requisite entries in
the voters’ roll of all prisoners, regardless of whether or not
such prisoners have been sentenced to
imprisonment without the option
of a fine, who are entitled to register as voters in terms of the
relevant provision of
sections 7
and
8
of the
Electoral Act 73 of
1998
.
3B The Second Respondent and its
duly authorised officials are ordered and directed to implement the
relief sought in paragraphs 3
and 3A above within such period as will
enable the prisoners who are entitled to vote, regardless of whether
or not such prisoners
have been sentenced to imprisonment without the
option of a fine, to vote on the date of the election at the voting
stations as determined
by the second respondent.
3C The Second Respondent and its
duly authorised officials are ordered and directed forthwith to amend
if necessary, the election
timetable which it is required to be
published in terms of
section 20(2)
of the
Electoral Act, in
order to
give effect to the relief sought in prayers 3 to 3B.”
Alternatively to paragraphs 3B
and 3C, the applicants sought alternative relief in the event that
the second respondent and its duly
authorised officials were unable
to give effect to the relief sought in prayers 3B and 3C. That
relief was the following:
“
4. The second respondent is
ordered to postpone in terms of
section 22
of the
Electoral Act the
voting on the proclaimed election date to a date which falls within
the period referred to in sections 49(2) and 108(2) of the
Constitution,
in order to ensure that all the prisoners who are
entitled to vote, regardless of whether or not they have been
sentenced to imprisonment
without the option of a fine, will be able
to register as voters and will be able to vote on the date to which
voting has been postponed.”
The
question that arises now for us to consider is whether this Court
can make an order requiring the Commission to make arrangements
to
register prisoners for voting despite the fact that the voters’
roll has now closed in terms of
section 24
of the
Electoral Act.
Section
172(1) of the Constitution provides as follows:
“
When deciding a
constitutional matter within its power, a court ─
must declare that any law
or conduct that is inconsistent with the Constitution is invalid
to the extent of its inconsistency;
and
may make any order that is
just and equitable, including ─
an order limiting the
retrospective effect of the declaration of invalidity; and
an order suspending the
declaration of invalidity for any period and on any conditions,
to allow the competent authority
to correct the defect.”
Another
relevant provision of the Constitution is section 38 which provides
that courts may grant “appropriate relief” for the
infringement
of rights. These two provisions read together require a court, when
providing a remedy for the infringement of a constitutional
right, to
grant appropriate relief to the applicant which must be relief that
is just and equitable in the circumstances of the case.
This Court has said on many occasions that in granting appropriate
relief, and making an order that is just and equitable under
section
172(1)(b), it is imperative that where possible and appropriate
successful litigants should obtain relief
66
and that that relief should be effective. As Ackermann J reasoned
in
Fose v Minister of Safety and Security
:
67
“
This Court has a particular
duty to ensure that, within the bounds of the Constitution, effective
relief be granted for the infringement
of any of the rights
entrenched in it. In our context an appropriate remedy must mean an
effective remedy, for without effective
remedies for breach, the
values underlying and the rights entrenched in the Constitution
cannot properly be upheld or enhanced.
Particularly in a country
where so few have the means to enforce their rights through the
courts, it is essential that on those occasions
when the legal
process does establish that an infringement of an entrenched right
has occurred, it be effectively vindicated. The
courts have
particular responsibility in this regard and are obliged to ‘forge
new tools’ and shape innovative remedies, if needs
be, to achieve
this goal.”
68
Other
considerations, too, are relevant to determining what is just and
equitable. Where possible relief should not be granted only
to the
applicants before a court, but to all those similarly situated to the
applicants.
69
On the other hand, particularly in the context of retrospective
orders, the court must consider the potential disruption and
uncertainty
that an order could occasion.
70
The
Constitution expressly permits courts to suspend an order of
invalidity. When a court does so, the effect of the order is to
permit the unconstitutional provision to continue to operate pending
the end of the suspension period. A court only makes such
an order,
of course, where it is just and equitable to do so in the light of
all the facts of a particular case. Thus the effect
of a suspension
order is to permit a provision in conflict with the Constitution to
continue to operate for a limited period.
In
this case, the Commission has argued that because the voters’ roll
has closed, the provisions of section 24 stand as a complete
bar to
consequential relief in favour of the applicants who have
demonstrated that their constitutional rights have been infringed.

The Commission, however, also states that it is practically possible
for the prisoners to be registered and to be allowed to vote,
and
that the difficulty lies not in the logistical challenge of
rectifying the situation, but simply in the legal impediment caused
by section 24(1).
Section
172(1) states that a court may make any order that is “just and
equitable”. It then includes within that the power
to make an
order suspending the effect of a declaration of invalidity, which
effectively permits the Court to order that an unconstitutional
state of affairs continue for a fixed period. In the light of this,
it would seem strange were the terms “just and equitable”
not
broad to enough to permit a court to make an order which has the
effect of creating a limited exception to the provisions of
a
statute for a short period of time in appropriate circumstances.
The greater power to permit the continued infringement of the
Constitution must imply the lesser power to sanction an exception to
the application of an otherwise mandatory statutory provision
for a
limited period of time to protect a constitutional right. This must
of course be done within the overriding considerations
of justice
and equity. These considerations must be understood in the light of
the constitutional imperative of providing appropriate
relief to
successful litigants. It would be consistent with this imperative
for the Constitution to be interpreted to empower
this Court to
create an exception to the operation of a mandatory statutory
provision to enable successful litigants to enjoy their
constitutional rights. We conclude, in the light of the aforegoing,
that this Court has the competence to order consequential
relief as
sought by the applicant and section 24 will not per se operate as a
bar to such relief. The question that remains for
us to consider is
whether such relief is just and equitable in the circumstances of
this case.
The
consequential relief sought by the applicants requires a
supplementary voters’ roll of a relatively small number of voters
to be compiled. This process of compilation requires the
registration of prisoners who wish to register in prisons, followed

by an opportunity to be afforded to them to appeal any refusal to
register them. It also requires the provision of an opportunity
for
others, including political parties, to inspect and if necessary
object to the supplementary voters’ rolls so compiled.
The
Commission has indicated to the Court that this process will be
logistically possible within the time available before the
election
date.
In
considering whether to grant such consequential relief, a key
consideration is the importance of affording successful litigants
effective relief. A further consideration is the fact that in this
case the applicants have acted as expeditiously as possible
to
ensure they obtain the relief they seek. As mentioned earlier, the
legislation under challenge was promulgated on 17 December
2003 and
the challenge in the High Court was launched six days later. No
blame can therefore attach to the applicants in regard
to the
urgency of this matter. The Court must also consider whether
granting the consequential relief sought will prejudice the
purposes
of section 24 or otherwise threaten the ability of the Commission to
run free and fair elections. We are persuaded that
in this case,
consequential relief will not occasion this risk.
Order
The
following order is made:
It
is declared that the following provisions of the
Electoral Act 73 of
1998
are inconsistent with the Constitution and invalid:
the
whole of section 8(2)(f);
the
phrase “and not serving a sentence of imprisonment without the
option of a fine” in section 24B(1); and
the
whole of section 24B(2).
The
Electoral Commission and the Minister of Correctional Services are
ordered to ensure that all prisoners who are entitled to
vote, in
terms of the
Electoral Act 73 of 1998
and paragraph 1 of this order,
are afforded a reasonable opportunity to register as voters for, and
to vote in, the forthcoming
elections of April 2004.
Notwithstanding
the provisions of Chapter 2 and
section 24
of the
Electoral Act 73
of 1998
, the Electoral Commission is ordered that, not later than 9
April 2004, it must:
give
notice to prisons and prisoners that registration of voters will
take place on a specified date;
visit
prisons and register prisoners who, pursuant to this order, are
entitled to vote;
prepare,
print and distribute to all who are so entitled, a supplementary
voters’ roll of prisoners so registered; and
receive,
properly consider and dispose of any objection or appeal relating
to registration as a voter or the supplementary voters’
roll.
The
time within which the various steps referred to in paragraph 3 of
this order may be taken may be determined by the Electoral
Commission, with due regard to the provisions of paragraph 2 of this
order.
The
Electoral Commission is required on or before Wednesday 10 March
2004 to serve on the Minister of Correctional Services, Nicro
and
the two prisoners with whom it brought this application, and lodge
with the Registrar of this Court, an affidavit setting out
the
manner in which it will comply with paragraphs 2 and 3 of this
order. Any interested person may inspect this affidavit at
the
Registrar’s office once it has been lodged.
The
Minister of Home Affairs is ordered to pay the costs of this
application, including the costs of two counsel.
Langa
DJC, Mokgoro J, Moseneke J, O’Regan J, Sachs J, Skweyiya J, Van der
Westhuizen J and Yacoob J concur in the judgment of Chaskalson
CJ.
MADALA J:
In this matter, the National Institute for Crime Prevention and the
Re-Integration of Offenders (Nicro) and two inmates of Pollsmoor
Prison seek an order as a matter of urgency that certain provisions
which amended the Electoral Act 73 of 1998 (the
Electoral Act) be
declared inconsistent with the Constitution and invalid.
Consequentially, they seek that all prisoners be granted a
reasonable
opportunity to register as voters and to vote in this
country’s forthcoming general elections of the National Assembly
and
provincial legislatures scheduled to be held on 14 April 2004.
The
Minister opposes the application in which the crisp issue is
whether certain limitations imposed on the exercise by certain
prisoners of the right to vote meet the test of reasonableness and
justifiability in the limitation clause.
1
The
first applicant is Nicro, a voluntary association whose head office
is in Cape Town. The second applicant is Elise Erasmus,
an adult
female who is serving a prison sentence of three years at Pollsmoor
Women’s Prison, Cape Town. The third applicant
is Roland
Schwagerl, an adult male serving a sentence of one year at Medium C
Section, Pollsmoor Prison, Cape Town.
The
first respondent is the Minister of Home Affairs. The second
respondent is the Electoral Commission. The third respondent
is
the Minister of Correctional Services.
Prior
to the 1999 elections this Court found itself inundated with a
flurry of urgent applications surrounding the issue of the
right to
vote. We are again finding ourselves in the untenable situation,
where we must rule on another application which is
concerned with
the same right to vote at the eleventh hour with general elections
having been proclaimed for 14 April 2004.
While
it is clearly the right of litigants to approach this Court to seek
a resolution of their disputes where the parties have
seen the
dispute in the making, they ought to approach courts expeditiously
to avoid having their matters being heard in a slap-dash
manner,
and to afford their counsel sufficient leeway to properly prepare
their cases and to afford justices reasonable time
to read and
research the cases.
In
my view, the matter has been dealt with in a slap-dash manner
because the applicants who now approach this Court as a matter
of
urgency were at all times aware of the existence of the legislation
now challenged. The matter could have been heard in the
Cape High
Court (the High Court) and set down as one of urgency and we could
have been favoured with a judgment of that court
– particularly
because of the seminal importance of the issues being canvassed in
this application. This Court in any event
has previously expressed
its reluctance to hear matters as a court of first instance without
having the benefit of a judgment
of the High Court. Of course if
the application for direct access was granted, the matter would be
heard expeditiously and finality
would be reached quickly. But the
Court was in recess and there was no quorum to sit to hear the
matter.
The
dispute in this case arises from certain provisions of the
Electoral Laws Amendment Act 34 of 2003
which came into operation
on 17 December 2003 – having been published as far back as the 6
November 2003.
2
Background
The
full history of how this application came to be moved directly in
this Court, by-passing the High Court where it was initiated,
has
been dealt with fully in the judgment of the Chief Justice and need
not be repeated here.
Suffice
to mention that in the first democratic elections, Parliament
determined that, with certain specified exceptions, all
prisoners
could vote. The interim Constitution had provided for universal
adult suffrage and did not expressly disqualify any
prisoner, but
made the further provision that disqualification
could be
made by law. The Electoral Act 202 of 1993 disqualified certain
persons on four grounds, one of which was imprisonment
for certain
specified serious offences.
Section
16(d) of the 1993 Electoral Act had provided that no person would
be entitled to vote if that person was detained in a
prison after
being convicted and sentenced without the option of a fine in
respect of:
murder,
robbery with aggravating circumstances and rape;
or
any attempt to commit [such an] offence.
Save
for these exceptions all other prisoners could exercise the right
to vote.
Following
upon the decision of this Court in
August and Another v
Electoral Commission and Others
3
in which it ordered that:
“
3.1 It is declared that all
persons who were prisoners during each and every period of
registration between November 1998 and March
1999, and who are not
excluded from voting by the provisions of
section 8(2)
of the
Electoral Act 73 of 1998
, are entitled to register as voters on the
national common voters’ roll.
3.2 It is declared that all
persons who are prisoners on the date of the general election are
entitled to vote in that election
if they have registered to in
terms of prayer 3.1 above or otherwise”.
One
would have expected Parliament to put in place what legislation it
desired in respect of the voting rights of prisoners. This
was not
done.
Besides
the challenge to the right to vote the applicants contend that
their not being able to register and to vote violates the
right to
equal protection and benefit of the law which is enshrined in
section 9(1) of the Constitution.
Furthermore,
it is the applicants’ contention that by not being allowed to
register to vote, prisoners are being unfairly discriminated
against in violation of section 9(3) of the Constitution.
A
denial of the right to register and to vote also infringes the
right to human dignity which is contained in section 10 of the
Constitution.
Finally,
it is the applicants’ case that the limitation placed on
prisoners by not allowing them to register and to vote, is
not
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom in terms of section
36(1) of
the Constitution.
The
impugned provisions
The
amendments which were made to the
Electoral Act and
which are
challenged in this application are
sections 8(2)(f)
and
24B
(1) and
(2). These sections provide as follows:
“
8(2): The chief electoral
officer may not register a person as a voter if that person - …
(f) is serving a sentence of
imprisonment without the option of a fine.”
“
24B(1): In an election for
the National Assembly or a provincial legislature, a person who on
election day is in prison and not
serving a sentence of imprisonment
without the option of a fine and whose name appears on the voters’
roll for another voting
district, is deemed for that election day to
have been registered by his or her name having been entered on the
voter’s roll
for the voting district in which he or she is in
prison.”
“
24B(2) A person who is in
prison on election day may only vote if he or she is not serving a
sentence of imprisonment without the
option of a fine.”
The
applicants contend that the amendments disenfranchise both persons
who will be serving sentences of imprisonment without the
option of
a fine on election day and those who, although released on election
day were not registered prior to their incarceration
but were
serving sentences of imprisonment without the option of a fine on
those days when registration took place.
It
has been said that once a limitation has been found to exist, the
burden of justification under
section 36(1)
rests on the party
asserting that the limitation is justifiable. As was stated by
Somyalo AJ in
Moise v Greater Germiston Transitional
Local
Council
:
Minister of Justice and Constitutional Development
Intervening
(Women’s Legal Centre as Amicus Curiae)
that:
“
The weighing up exercise is
ultimately concerned with the proportional assessment of competing
interests but, to the extent that
justification rests on factual
and/or policy considerations, the party contending for justification
must put such material before
the Court. It is for this reason that
the government functionary responsible for legislation that is being
challenged on constitutional
grounds must be cited as a party. If
the government wishes to defend the particular enactment, it then
has the opportunity - indeed
an obligation - to do so.”
4
Although
the absence and, I would venture to say, the paucity of the
justification evidence and argument does not necessarily
result in
invalidity of the impugned provision, it may tip the scales against
the state in appropriate situations. Whatever
the situation, the
Court is not relieved of the obligation to conduct the
justification analysis and satisfy itself as to the
real status of
the provisions being challenged.
5
In
the present case, the Minister concedes that the overall effect of
the impugned provisions is to limit the constitutional right
to
vote which by inference also includes the right to register as a
voter. The Minister also concedes that he has the responsibility
of establishing that the limitation is reasonable and justifiable
in an open democratic society based on human dignity, equality
and
freedom. We now embark upon that consideration.
Justification
The
limitation analysis is based in our Constitution on section 36(1)
which provides:
“
The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation is
reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including─
(a) the nature of the right;
(b) the importance of the
purpose of the limitation;
(c) the nature and extent of
the limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to
achieve the purpose.”
The
process of analysing whether the limitation of a right is
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom has been described in
S v
Makwanyane and Another
6
as:
“
The weighing up of competing
values, and ultimately an assessment based on proportionality . . .
which calls for the balancing of
different interests.”
The relevant considerations in the balancing process were stated to
include:
“
The nature of the right that
is limited and its importance to an open and democratic society
based on freedom and equality; the
purpose for which the right is
limited and the importance of that purpose to such a society; the
extent of the limitation, its
efficacy and, particularly where the
limitation has to be necessary, whether the desired ends could
reasonably be achieved through
other means less damaging to the
right in question.”
7
It
was stated in
S v Manamela
(Director-General of Justice
Intervening)
that:
“
It should be noted that the
five factors expressly itemised in s 36 are not presented as an
exhaustive list. They are included in
the section as key factors
that have to be considered in an overall assessment as to whether or
not the limitation is reasonable
and justifiable in an open and
democratic society. In essence, the Court must engage in a
balancing exercise and arrive at a global
judgment on
proportionality and not adhere mechanically to a sequential
check-list. As a general rule, the more serious the impact
of the
measure on the right, the more persuasive or compelling the
justification must be. Ultimately, the question is one of degree
to
be assessed in the concrete legislative and social setting of the
measure, paying due regard to the means which are realistically
available in our country at this stage, but without losing sight of
the ultimate values to be protected.”
8
Furthermore,
the standard of proof for a section 36 analysis is that obtaining
in civil matters – preponderance of probabilities
and not the
higher onerous test of proof beyond reasonable doubt.
The
Minister also states that logistical arrangements would be
difficult and costly at this stage and may even amount to unfair
favouritism. I do not think there is any substance to this
argument and, in my view it cannot stand, particularly when one

considers that arrangements have been made or have to be made for
certain other categories of prisoners to vote – provided of
course that they have been registered to vote.
This
case revolves around the question of whether the temporary
suspension of the exercise of the right to vote by prisoners of
a
certain category is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom.
Much
has been written and said about the fact that the right to vote is
guaranteed to every citizen and that it, in fact, lies
at the very
heart of our democracy and cannot without good reason be lightly
dismissed. There can be no doubt about the truth
of this statement
which takes an added meaning to a people that had long been
disenfranchised.
In
the present case the Minister who opposes the relief sought by the
applicants has, rightly in my view, conceded that the provisions
of
the
Electoral Act, as
amended, indeed violate the rights in
question. This means that the impugned provisions are inconsistent
with the Constitution
and are invalid unless they can be justified
under section 36(1) of the Constitution.
I
have had the benefit of reading the judgment prepared by the Chief
Justice and respectfully disagree with the findings and conclusion
which he reaches, particularly on the lack of justification for the
infringement of the said right.
The
objectives of government in denying certain prisoners the right to
vote are multi-pronged and must be treated holistically
as an
attempt by government to inculcate responsibility in a society
which, for decades, suffered the ravages of apartheid; demeaning
its citizens and creating irresponsible persons whose lives have
become a protest.
Unfortunately
what happens in South Africa today results squarely from our
unsavoury recent past. It also means, for me, that
uniquely South
African problems require uniquely South African solutions and that
one cannot simply import into a South African
situation a solution
derived from another country – no matter how democratic it is
said to be. It is true that many old democratic
countries
generally enfranchise the majority if not in fact all their
citizens.
But
just as many temporarily disenfranchise prisoners in the pursuit of
various stated objectives. As was stated by Gonthier
J in
Sauvé
v Canada
(Chief Electoral Officer):
“
Temporarily removing the
vote from serious criminal offenders while they are incarcerated is
both symbolic and concrete in effect.
Returning it on being
released from prison is the same.”
9
I
am in respectful agreement with these sentiments expressed by
Gonthier J. In my view, the temporary removal of the vote and
its
restoration upon the release of the prisoner is salutary to the
development and inculcation of a caring and responsible society.

Even if the prisoner loses the chance to vote by a day, that will
cause him or her to remember the day he or she could not exercise
his or her right because of being on the wrong side of the law.
In
my view, the temporary removal of the right to vote by certain
categories of prisoners is very much in line with the government
objective of balancing individual rights and the values of our
society. This must be more so in a country which is notoriously
plagued by the scourge of crime. You cannot reward
irresponsibility and criminal conduct by affording a person who has
no
respect for the law the right and responsibility of voting.
International
practice in respect of the right to vote
United
States
Professor
L Tribe in
American Constitutional Law
observes:
“
Every state, as well as the
federal government, imposes some restrictions on the franchise.
Although free and open participation
in the electoral process lies
at the core of democratic institutions, the need to confer the
franchise on all who aspire to it
is tempered by the recognition
that completely unlimited voting could subvert the ideal of popular
rule which democracy so ardently
embraces. Moreover, in deciding
who may and who may not vote in its elections, a community takes a
crucial step in defining its
identity. If nothing else, even though
anyone in the world might have some interest in any given election’s
outcome, a community
should be empowered to exclude from its
elections persons with no real nexus to the community as such.
10
In
the United States the Constitution “is not violated if a state
limits voting to citizens or if it deprives a citizen of the
right
to vote if he or she has been convicted of a felony.”
11
It is the states in the United States that have control of
disenfranchising prisoners in both state and federal elections.
Nearly all states disenfranchise prisoners for a felony.
Europe
In
Europe the First Protocol to the European Commission on Human
Rights guarantees free elections, and recognises the principles
of
universal suffrage but also notes that the right to vote is not
absolute.
12
Furthermore,
in Europe the practice of allowing prisoners to vote varies from
country to country. According to Gonthier J:
“
Eighteen European Countries
have no form of electoral ban for incarcerated offenders: Bosnia,
Croatia, Cyprus, Denmark, Iceland,
Ireland, Finland, Latvia,
Lithuania, Macedonia, Netherlands, Poland, Slovenia, Spain, Sweden,
Switzerland and the Ukraine. In
Greece, prisoners serving life
sentences or indefinite sentences are disqualified; otherwise the
matter is left to the discretion
of the court. In some other
European countries, electoral disqualification depends on the crime
committed or the length of the
sentence: Austria, Malta and San
Marino ban all prisoners serving more than one year from voting;
Belgium disqualifies all offenders
serving sentences of four months
or more; Italy disenfranchises based on the crime committed and/or
the sentence length; Norway
removes the vote for prisoners sentenced
for specific offences; and in France and Germany, the
disqualification of a prisoner is
dependent upon the sentence handed
down by the court specifically providing for disenfranchisement (in
France, certain crimes are
identified which carry automatic
forfeiture of political rights; in Germany, prisoners convicted of
offences which target the integrity
of the German state of its
democratic order lose the vote). Armenia, Bulgaria, the Czech
Republic, Estonia, Hungary, Luxembourg,
Romania and Russia all have
complete bans for sentenced offenders.”
13
Australia,
New Zealand and the United Kingdom all disenfranchise at least some
categories of prisoners. It appears from a consideration
of the
above countries that no uniform policy can be deduced but the
majority would appear to disenfranchise prisoners to some
degree or
another.
It
was argued for the Minister that given the nature of the right to
vote, it can safely be assumed that there will be exclusions,
on
practical grounds, of some citizens in every society. The
regulatory mechanism may be a hindrance to the exercise of the
right to vote – thus necessarily excluding many people from
voting.
Prisoners
fall into a special category by virtue of the restrictions imposed
on their freedom of movement. It follows that if
they are to be
allowed to vote, special arrangements have to be made for them to
register and vote. However, they ought not
to be treated more
favourably than others who, for some legitimate reason, are unable
to exercise the right to vote by registering
and voting as
prescribed by the applicable statutory provisions. Examples of
such persons are long distance drivers who are
unlikely to be
within reach of their voting stations on voting day.
It
was also argued that Parliament has made its choice, after a
careful balancing exercise. As is clear, it has considered

carefully the observations made in
August
.
1
For example, it took into account that, in principle, it was
empowered to disenfranchise some prisoners. It also had regard
to
the implied suggestion that detainees and the poor must be given
special consideration when amending the regulatory framework.
The
limitations also serve an important purpose. They ensure that the
integrity of the voting process is protected. They give
the pub
lic the assurance that the interests and the rights of ordinary
law-abiding citizens are as important as those of prisoners.
In
this way, they engender public confidence in the democratic process
and the criminal justice system.
In
respect of the other rights which the applicants allege have been
violated, that is, the right to equality, the right not to
be
unfairly discriminated against, and the right to human dignity, the
Minister contends that it is for Nicro and the inmates
of Pollsmoor
Prison to establish a violation of such rights and further contends
that they
have
not established such violation. In my view no serious effort was
made at establishing such violation.
I
conclude that the Minister has made out a case for justification
and that the application must be dismissed with costs.
NGCOBO J:
This
case raises important issues concerning the right of prisoners to
vote. Ordinarily I would have preferred to have had more
time to
consider the matter, not because I need more time to make up my
mind but to formulate the reasons for my conclusion.
However, the
matter is extremely urgent. It is necessary that I announce my
conclusion and reasons to it, once I have reached
one. I therefore
do so.
The
background to the present application has been fully set out in the
main judgment. It need not be repeated here, save to
the extent
necessary for the purposes of this judgment.
The
Electoral Laws Amendment Act
1
introduced
certain changes to the
Electoral Act
2
(the Act). These changes have the effect of disenfranchising
prisoners serving sentences of imprisonment without an option of
a
fine. They preclude these prisoners from registering as voters and
voting while they are in prison. These changes were brought
into
operation on 17 December 2003. The elections are due to be held on
14 April 2004.
Changes
are contained in sections 8(2)(f) and 24B(1) and (2). These
sections provide:
Section
8(2)(f):
“
The chief electoral officer
may not register a person as a voter if that person –
…
(f) is serving a sentence of
imprisonment without the option of a fine.”
Section
24B(1):
“
In an election for the
National Assembly or a provincial legislature, a person who on
election day is in prison and not serving
a sentence without the
option of a fine and whose name appears on the voters’ roll for
another voting district, is deemed for
that election day to have
been registered by his or her name having been entered on the
voters’ roll for the voting district
in which he or she is in
prison.”
Section
24B(2)
:
“
A person who is in prison
on election day may only vote if he or she is not serving a sentence
of imprisonment without the option
of a fine.”
Whether
these provisions pass constitutional muster is an issue confronting
us in these proceedings.
That
the impugned provisions of the Act limit the right to vote of the
affected prisoners cannot be gainsaid. The concession
by the state
in this regard was properly made. That much appears from the main
judgment. The sole issue for consideration is
therefore whether
such a limitation is justifiable and reasonable under section 36(1)
of the Constitution.
But
first, what is the nature and scope of the enquiry under section
36(1)?
The
nature and the scope of the enquiry required by section 36 is set
out in the main judgment. The nature and scope of the enquiry
under section 36(1) was articulated as follows in
S v Manamela
:
3
“
Although s 36(1) differs in
various respects from s 33 of the interim Constitution, its
application continues to involve the weighing
up of competing values
on a case-by-case basis to reach an assessment founded on
proportionality. Each particular infringement
of a right has
different implications in an open and democratic society based on
dignity, equality and freedom. There can accordingly
be no absolute
standard for determining reasonableness. This is inherent in the
requirement of proportionality, which calls for
the balancing of
different interests. The proportionality of a limitation must be
assessed in the context of its legislative and
social setting.
Accordingly, the factors mentioned in s 36(1) are not exhaustive.
They are key considerations, to be used in
conjunction with any
other relevant factors, in the overall determination whether or not
the limitation of a right is justifiable.”
4
I
agree with the main judgment that in the context of section 36 it
is not appropriate to refer to an “onus”. As the main
judgment
holds, “[i]t is rather a burden to justify a limitation where
that becomes an issue in a section 36 analysis.”
5
That much is borne out by our prior jurisprudence on section 36.
6
In addition, I agree that in the context of section 36, it may not
be possible to prove that a policy will be effective. Nor
does it
follow from that that the policy is not reasonable and justifiable.
In
my view, where the government is pursuing a policy that can be
identified, it seems to me that the enquiry must then focus
on that
policy. The nature of the policy relied upon may be such that it
does not require the state to furnish any reasons for
the pursuit
of the policy. The need to pursue such a policy may be so obvious
that it calls for no explanation. This would
be a case where the
court must rely on common sense and judicial knowledge.
7
In my view, the present is such a case.
As
I understand the government’s case, as it emerges from the
papers, it is this: The level of crime in our country is
unacceptably
high. The government has taken a number of measures
to deal firmly with crime. The government has also embarked upon a
campaign
of zero tolerance. It is against this background that the
following statement by Mr Gilder
must be understood
:
“
In the face of these
measures, it would be sending out the wrong signal were it to make
special arrangements for prisoners whose
freedom has been wrested
from them but at the same time not accord such privileges to other
persons who cannot be held responsible
for their absence from their
voting stations on election day and who are, no matter what measure
of comparison is employed, at
the very least, no less deserving of
special arrangements.”
What
is being conveyed here is that at the level of policy it is
important for the government to denounce crime and to communicate
that policy to the public. The policy that is being pursued here
is one of denouncing crime and sending a message to criminals
that
the rights citizens have are related to their duties and
obligations as citizens. In my view that is a legitimate policy
to
pursue. It requires no reasons to understand the need to pursue
the policy of denouncing crime.
But
should the claim of justification based on the pursuit of this
policy be upheld? This question must be determined by reference
to
the requirements of section 36 of the Constitution.
The
importance of the right to vote cannot be gainsaid. One of the
foundational values of our constitutional democracy is “universal
adult suffrage, a national common voters roll, regular elections”.
8
This foundational value is given expression in section 19(3) of
the Constitution.
9
The importance of this right must, in particular, be understood in
the context of our history. It was a history of denial of
the
franchise to the majority of the citizens of this country. It is a
right that must therefore be zealously guarded. But
like all
rights contained in the Bill of Rights, it is “subject to the
limitations contained or referred to in section 36”.
10
The contention advanced by the applicants that this right is
absolute, in my view, need therefore only be stated to be dismissed
as utterly devoid of substance.
Yet
the importance of the purpose of the limitation cannot be gainsaid
either. The prevalence of crime in this country is not
in dispute.
This Court needs no statistics to establish this fact. The media
tell part of this story of crime. The victims
of crime tell their
part too. The applicants themselves are a testimony to this fact.
Crime
strikes at the very core of the fabric of our society. It
undermines some of the fundamental human rights enshrined in
our
Bill of Rights. It violates the right to life, the right to
freedom and security, the right to property and the right to
dignity to mention a few. It undermines the rule of law, a
foundational value of our constitutional democracy. What is more,
those who commit crimes violate their constitutional duties and
responsibilities as citizens of this country. The state has
a
constitutional duty to eliminate crime. This obligation flows
generally from its obligation to “respect, protect, promote
and
fulfil the rights in the Bill of Rights.”
11
It is also implicit, if not explicit, in the obligation to
establish the national police service whose objects “are to
prevent,
combat and investigate crime, to maintain public order, to
protect and secure the inhabitants of the Republic and their
property,
and to uphold and enforce the law.”
12
In
my view, the government has a legitimate purpose in pursuing a
policy of denouncing crime and to promote a culture of the

observance of civic duties and obligations.
I
accept that the right to vote is an important right. The
limitation, however, is not absolute. It is limited to the period
during which a person is serving the sentence. To a certain extent
the limitation takes into consideration the length of the
sentence
imposed upon the prisoner. Thus depending on the length of a
sentence, a prisoner may lose the right to vote in more
than one
election. Those serving lengthy sentences are likely to lose the
right to vote in more than one election while those
like the two
applicants in this case are likely to lose it in one election only.
This
limited limitation of the right to vote sends an unmistakable
message to the prisoner. If you should be released and again
commit a crime of a nature that attracts the prison sentence
without the option of a fine, you will not vote in the next
elections.
That message is a necessary effort to fight crime. It
is a reminder that the duties and responsibilities of a citizen
also
include an obligation to respect the rights of others and
comply with the law. The convicted prisoners break the law in
breach
of their constitutional duty not to do so.
That
our Constitution does not take kindly to crime, is apparent from
section 47(1)(e) of the Constitution. That section disqualifies
from membership of the National Assembly any person who “is
convicted of an offence and sentenced to more than 12 months

imprisonment without the option of a fine.”
13
There is a similar disqualification from membership in the
provincial parliament.
14
However, disqualification is limited to a period of 5 years after
the sentence has been served. These constitutional provisions
once
again send a clear image that crime will not be tolerated.
As
Madala J demonstrates in his judgment, our country is not alone in
imposing a limitation on this right. Other democratic countries
too do so as well. They do so to send the same message. There is
no uniformity on how to send this message.
Dealing
with the importance of denouncing crime, Linden JA of the Federal
Court of Canada – Court of Appeals in
Sauvé v Canada (Chief
Electoral Officer)
15
said:
“
In addition to electoral
considerations, the main motivations in passing this law were the
retributive and denunciatory aspects
of the penal sanction. The
courts cannot prevent Parliament from proportionately compromising
Charter rights in the name of denouncing
crime, even if they
disagree with Parliament’s penal philosophy. There are salutary
effects of this legislation as well as valid
objectives which were
identified to the Court. Its main salutary effect is to express the
sense of societal values of the community
in relation to serious
criminal behaviour and the right to vote in our society. It sends a
message signalling Canadian values
to the effect that those people
who are found guilty of the most serious crimes will, while
separated from society, lose access
to one of the levers of
electoral power. This legislation proclaims that values of civic
responsibility are important to Canadians.
The signal itself is an
important benefit of the law. Moreover, disenfranchisement is a
meaningful sanction which is noticed
by offenders. Lastly, this
legislation can be seen as a gentler, more humane alternative to
additional incarceration. In the
battle against crime, Courts
cannot limit Parliament to a single punitive tool. On the other
hand, the sole deleterious effect
of the legislation is the
withdrawal of the Charter-guaranteed right to vote. While this
deprivation is serious, several facts
were brought to the attention
of the Court which mitigate its deleterious nature. Viewed as a
civil consequence imposed as an
alternative to additional
incarceration which attaches to the most serious sentences for the
most serious crimes, it must be concluded
that this measure is
proportional.”
16
It
is true that a government that considers itself under siege,
whether from criminal or some other source is more likely to resort
to drastic means to address the problem. In such difficult times
fundamental human rights are more likely to be the first

casualties. It is also true that in such times courts, as
guardians of the constitutional democracy, must be vigilant. There
is nothing to suggest that we have reached the stage of a siege.
What is more, the means resorted to by the state cannot be
described as being drastic. There is a limited limitation on the
right to vote that lasts for the duration of the sentence.
However,
the problem with the present limitation is that it makes no
distinction between those prisoners who are serving a prison
sentence while awaiting the outcome of an appeal and those whose
appeals have been finalised. This distinction is important
because
the former may still be found not guilty on appeal or have their
sentence reduced to a prison sentence with an option
of a fine. To
the impugned legislation this matters not. Yet it does because
once acquitted or the sentence is reduced, the
limitation no longer
applies. If an outcome of the appeal comes after the elections,
the person would have been wrongly deprived
of the right to vote.
To
this extent, and this extent only, the limitation goes too far. It
does not make the distinction which the Constitution makes.
For
this reason it is bad. However, this defect is in my view of the
kind that could adequately be cured by reading in the
following
qualifying phrase: “but no one may be regarded
as
having been sentenced until an appeal against the conviction or
sentence has been determined, or until the time for an appeal
has
expired”, after the phrase “serving a sentence of imprisonment
without the option of a fine”, into the provisions.
For the applicant: V. Soni SC and P. Ngutshana instructed by the
State Attorney (Cape Town).
For the
first to third respondents: I. V. Maleka SC and N. Fourie
instructed by Legal Resources Centre (Cape Town).
For the fourth respondent: M. K. T. Moerane SC and R. J. Salmon
instructed by Heunis & Heunis Prokureurs.
1
Act 34 of
2003.
2
Act 73
of 1998.
3
The Amendment Act was published in Government Gazette 25687 GN 1641,
6 November 2003. However, the proclamation purporting to bring
the
Amendment Act into operation was published in Government Gazette
25672 GN 70, 3 November 2003 – 3 days before the Gazette
containing the Amendment Act was published. Thus a re-proclamation,
Government Gazette 25860 GN 78, was issued on 17 December 2003
announcing the commencement of the Amendment Act.
4
Bruce and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998
(2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) para 9;
Christian
Education South Africa v Minister of Education
1999 (2) SA 83
(CC);
1998 (12) BCLR 1449
(CC) para 4;
Dormehl v Minister of
Justice and Others
2000 (2) SA 987
(CC);
2000 (5) BCLR 471
(CC)
para 5;
National Gambling Board v Premier, KwaZulu-Natal, and
Others
[2001] ZACC 8
;
2002 (2) SA 715
(CC);
2002 (2) BCLR 156
(CC) para 29;
Van
der Spuy v General Council of the Bar of South Africa (Minister of
Justice and Constitutional Development, Advocates for Transformation
and Law Society of South Africa intervening)
[2002] ZACC 17
;
2002 (5) SA 392
(CC);
2002 (10) BCLR 1092
(CC) para 7;
Satchwell v President of
the Republic of South Africa and Another
[2003] ZACC 2
;
2003 (4) SA 266
(CC);
2004 (1) BCLR (1) (CC) para 6;
Ex Parte Omar
2003 (10) BCLR
1087
(CC) para 4.
5
The relevant part of section 1 reads as follows:
“
'voter' means a South African citizen —
(a) who is 18 years old or older; and
(b)
whose name appears on the voters' roll”.
6
Section 8(1) reads as follows:
“
If satisfied that a person's application for
registration complies with this Act, the chief electoral officer
must register that
person as a voter by making the requisite entries
in the voters' roll.”
7
[1999] ZACC 3
;
1999 (3) SA 1
(CC);
1999 (4) BCLR 363
(CC).
8
Section 7(3)(b) reads as follows:
“
For the purpose of registration on the voters' roll
a person is not regarded to be ordinarily resident at a place where
that person
is lawfully imprisoned or detained, but at the last home
or place where that person normally lived when not imprisoned or
detained.”
9
See above para 12.
10
Section 64 reads as follows:
“
The Commission must establish for an election one
voting station, or one voting station and a mobile voting station,
or only a mobile
voting station, in each voting district in which
the election will be held.”
11
Section 64(1A)(b) reads as follows:
“
The Commission may establish a mobile voting station
only if —
. . .
(b)
the mobile voting station is necessary for use at a prison.”
12
Section 36 of the Constitution is dealt with more fully in paragraph
33 and later paragraphs below. It makes provision for the
limitation of rights in the Bill of Rights and the criteria
according to which this can be done.
13
This section entrenches the right to equality.
14
This section entrenches the right to dignity.
15
Section 12(1)(a) of the Constitution provides:
“
Everyone has the right to freedom and security of
the person, which includes the right –
(a)
not to be deprived of freedom arbitrarily or without just cause.”
16
Section 15(1) of the Constitution provides:
“
Everyone has the right to freedom of conscience,
religion, thought, belief and opinion.”
17
Section 33 of the Constitution guarantees the right to
administrative action that is lawful, reasonable and
administratively fair.
18
Section 35(2)(e) of the Constitution provides:
“
Everyone who is detained, including every sentenced
prisoner, has the right –
. . .
(e)
to conditions of detention that are consistent with human dignity”.
19
Section 35(3)(n) of the Constitution provides:
“
Every accused person has the right to a fair trial,
which includes the right –
. . .
(n)
to the benefit of the least severe of the prescribed punishments if
the prescribed punishment for the offence has been changed
between
the time that the offence was committed and the time of sentencing
”.
20
Above n 7 para 16.
21
Id para 16.
22
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5) BCLR 489
(CC).
23
Id para 11.
24
See section 1(d) and section 46(1)(b) of the Constitution which
expressly prescribe that the electoral system for the national
assembly must be “based on the national common voters roll”.
25
Section 105(1)(b) of the Constitution provides that an election for
a provincial legislature “is based on that province’s segment
of
the national common voters roll”.
26
Section 157(2)(a) of the Constitution provides:
“
The election of members to a Municipal Council as
anticipated in subsection (1)(a) must be in accordance with national
legislation,
which must prescribe a system – (a) of proportional
representation based on that municipality’s segment of the
national common
voters roll”.
27
Section 38(2)(b)
of the
Electoral Act provides
:
“
A voter is entitled to vote at a voting station –
. . .
(b)
if that voter's name is in the certified segment of the voters' roll
for the voting district concerned.”
28
Section 190(1)(a) of the Constitution provides:
“
The Electoral Commission must –
(a)
manage elections of national, provincial and municipal legislative
bodies in accordance with national legislation”.
29
Section 24(1)
of the
Electoral Act provides
:
“
The voters’ roll, or the segments of the voters’
roll that must be used for an election, are those as they exist on
the day
the election is proclaimed.”
30
S v Manamela and Another (Director-General of Justice
intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) para 32;
Christian Education South Africa v Minister of Education
[2000] ZACC 11
;
2000
(4) SA 757
(CC);
2000 (10) BCLR 1051
(CC) para 31.
31
Moise v Greater Germiston Transitional Local Council: Minister of
Justice and Constitutional Development intervening (Women’s Legal
Centre as amicus curiae)
[2001] ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC) para 19;
Phillips and Another v Director of Public
Prosecutions, Witwatersrand Local Division and Others
[2003] ZACC 1
;
2003 (3)
SA 345
(CC);
2003 (4) BCLR 357
(CC) para 20.
32
Moise
above n 31.
33
Id para 19.
34
Phillips
above n 31 para 21.
35
Manamela
above n 30 para 66;
Phillips
above n 31 para
22.
36
Above n 7.
37
Id para 31.
38
Above n 7.
39
Id para 21.
40
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC).
41
Id para 133 [footnotes omitted].
42
Id
43
S v Dlamini, S v Dladla and Others, S v Joubert, S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) para 68.
44
Above n 7 para 18.
45
2002 S.C.C. 68.
46
R.S.C. 1985 c. E-2.
47
Sauvé v Canada (Attorney General); Belczowski v Canada
[1993]
2 S. C. R. 438
para 2.
48
Above n 45 para 164.
49
Id
50
Id para 21.
51
Id para 166.
52
Id para 34.
53
Id para 52.
54
Id para 159.
55
Above n 47.
56
Above n 45 para 163.
57
Id para 23 [footnote omitted].
58
Above n 45.
59
Above n 47.
60
Section 47(1)(e) of the Constitution provides:
“
Every citizen who is qualified to vote for the
National Assembly is eligible to be a member of the Assembly, except
–
. . .
(e)
anyone who, after this section took effect, is convicted of an
offence and sentenced to more than 12 months imprisonment without
the option of a fine, either in the Republic, or outside the
Republic if the conduct constituting the offence would have been an
offence in the Republic, but no one may be regarded as having been
sentenced until an appeal against the conviction or sentence
has
been determined, or until the time for appeal has expired. A
disqualification under this paragraph ends five years after the
sentence has been completed.”
61
Above para 49.
62
The President set the date of 14 April 2004 as the date on which the
election of the National Assembly will occur in a proclamation
published in Government Gazette 26020 GN 14, 11 February 2004. On
the same day, the nine Provincial Premiers issued proclamations
designating 14 April 2004 as the date on which the election of the
provincial legislatures would take place.
63
See section 1(d) of the Constitution which provides that amongst the
founding values of our Constitution are “universal adult
suffrage,
a national common voters’ roll, regular elections and a
multi-party system of democratic government, to ensure
accountability,
responsiveness and openness”.
64
See Chapter 2 of the
Electoral Act.
65
See
section 15
of the
Electoral Act.
66
S
v
Bhulwana, S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995
(12) BCLR 1579
(CC) para 32;
Dawood and Another, Shalabi and
Another, Thomas and Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) para 66.
67
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC).
68
Id para 69.
69
Bhulwana
above n 66 para 32.
70
Id
1
Section 36(1) of the Constitution.
2
Government Gazette 25687 GN 1641, 6 November 2003.
3
[1999] ZACC 3
;
1999 (3) SA 1
(CC);
1999 (4) BCLR 363
(CC).
4
[2001] ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC) para 19.
5
Phillips and Another v Director of Public Prosecutions,
Witwatersrand Local Division and Others
[2003] ZACC 1
;
2003 (3) SA 345
(CC);
2003 (4) BCLR 357
(CC) para 20.
6
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) para 104.
7
Id
8
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) para 32.
9
2002 S.C.C 68
para 103.
10
Tribe
American Constitutional Law
2 ed (1988) 1084.
11
L Henkin
et al
Human Rights
(1999) 151.
12
H v Netherlands
[1983] 33 D.R. 242.
13
Above n 9 para 130.
1
Above n 3.
1
Act 34 of
2003.
2
Act 73
of 1998.
3
S v Manamela (Director-General of Justice
intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000
(5) BCLR 491
(CC).
4
Id para 33.
5
Above para 34.
6
Moise v Greater Germiston Transitional Local Council: Minister of
Constitutional Development (Women’s Legal Centre as Amicus Curiae)
[2001] ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC) para 19;
Phillips
and Another v Director of Public Prosecutions, Witwatersrand Local
Division and Others
[2003] ZACC 1
;
2003 (3) SA 345
(CC);
2003 (4) BCLR 357
(CC)
para 20.
7
See in this regard above para 36.
8
Section 1(d) of the Constitution.
9
Section 19(3) provides that:
“
Every adult citizen has the right –
to
vote in elections for any legislative body established in terms of
the Constitution, and to do so in secret; and
to stand for public office and, if elected, to hold
office.”
10
Section 7(3) of the Constitution.
11
Section 7(2) of the Constitution.
12
Section 205(3) of the Constitution.
13
Section 47(1)(e) provides:
“
Every citizen who is qualified to vote for the
National Assembly is eligible to be a member of the Assembly, except
–
. . .
(e) anyone who, after this section took effect, is
convicted of an offence and sentenced to more than 12 months
imprisonment without
the option of a fine, either in the Republic,
or outside the Republic if the conduct constituting the offence
would have been an
offence in the Republic, but no one may be
regarded as having been sentenced until an appeal against the
conviction or sentence
has been determined, or until the time for an
appeal has expired. A disqualification under this paragraph ends
five years after
the sentence has been completed.”
14
Section 106(1)(e) provides that:
“
Every citizen who is qualified to vote for the
National Assembly is eligible to be a member of a provincial
legislature, except
–
. . .
(e) anyone who, after this section took effect, is
convicted of an offence and sentenced to more than 12 months
imprisonment without
the option of a fine, either in the Republic,
or outside the Republic if the conduct constituting the offence
would have been an
offence in the Republic, but no one may be
regarded as having been sentenced until an appeal against the
conviction or sentence
has been determined, or until the time for an
appeal has expired. A disqualification under this paragraph ends
five years after
the sentence has been completed.”
15
[2000] 2 F.C. 117.
16
Id 120-1.