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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 9/99
THE NEW NATIONAL PARTY OF SOUTH AFRICA Applicant
versus
THE
GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA First Respondent
THE MINISTER OF HOME AFFAIRS Second Respondent
THE MINISTER OF FINANCE Third Respondent
THE CHAIRMAN OF THE ELECTORAL COMMISSION Fourth Respondent
THE CHIEF ELECTORAL OFFICER Fifth Respondent
Heard on : 15-16 March 1999
Decided on : 13 April 1999
YACOOB
J:
Introduction
[1] The applicant, to whom I will
refer as the appellant, applied for leave to appeal against the judgment of the
full bench of the
Cape of Good Hope High Court given on 26 February 1999. The
appellant is a political party, the official opposition in the House
of Assembly
which is intent upon contesting the 1999 national and provincial elections. It
challenges the constitutionality of certain
provisions of national legislation
prescribing the documents which otherwise qualified voters must possess in order
to register as
voters and to vote. It also challenges certain actions of the
first, second and third respondents (“the government”)
which were
said to interfere with the independence and impartiality of the Electoral
Commission[1] (“the
Commission”). The fourth respondent is the Chairperson of the Commission
and the fifth respondent is the Chief
Electoral Officer of the Commission. The
High Court dismissed the application with costs.
[2] After the delivery
of the judgment, the attorneys for the appellant wrote to this Court seeking
directions. The High Court application
was concerned with issues which might
have a bearing on the integrity and fairness of national and provincial
elections for members
of the National Assembly and provincial legislatures
which, we are informed are to take place on 2 June 1999. The date for the
elections
has not yet formally been promulgated. The case accordingly was and
remains of considerable public importance because a free, fair
and credible
election is both essential and fundamental to the continued deepening of the new
South African democracy. The determination
of the matters foreshadowed in the
application was also of the utmost urgency.
[3] For these reasons the
President of this Court responded on the same day and stated that, in view of
the urgency of the matter,
he was prepared, if the parties agreed, to direct
that the requirements of Rule 18[2] of
this Court be dispensed with, that the application for leave to appeal
containing the grounds of appeal as well as heads of argument
by the parties
should be filed within specified shortened periods and that the application be
set down for hearing on 15 and 16 March
1999. The directions also required the
parties to address the merits of the appeal so that, if the application for
leave to appeal
were to be granted, the matter could be disposed of without a
further hearing. The parties did so agree, the intended directions
became a
reality, and the matter was heard pursuant to them.
[4] The Democratic
Party, which is also a political party that intends to contest the elections,
brought a similar application in
the Transvaal High Court seeking an order that
the documentary requirements in issue in this case were unconstitutional. On 12
March
1999, the Transvaal High Court dismissed the application before it, with
the result that the Democratic Party, too, sought directions
in respect of an
application for leave to appeal. The President of this Court replied in terms
similar to those set out in the previous
paragraph of this judgment. The
parties in that case also reached an appropriate agreement with the result that
the Democratic Party’s
application for leave to appeal was heard on 29
March 1999. We decided to defer our decision in this case until the hearing in
the
Democratic Party case was concluded. The judgment of Goldstone J in the
Democratic Party case will be delivered immediately after
judgment in this
matter has been handed down.
Application for leave to appeal
[5] Leave to appeal to this
Court will be granted if it is in the interests of justice to do so. The
factors to be weighed are set
out in the judgment of Chaskalson P in Member
of the Executive Council for Development, Planning and Local Government, Gauteng
v Democratic Party and Others where he stated as follows:
“Relevant factors to be considered in such cases will, on [the] one hand, be the importance of the constitutional issues, the saving in time and costs that might result if a direct appeal is allowed, the urgency, if any, in having a final determination of the matters in issue and the prospects of success, and, on the other hand, the disadvantages to the management of the Court's roll and to the ultimate decision of the case if the SCA is bypassed.”[3]
[6] All
the issues raised by the appeal are constitutional issues. They are not only of
importance to the parties, but also of considerable
public importance. The
matter is one of the utmost urgency. It is possible to accommodate the matter
on the Court roll. The public
importance and interest in the matter are of such
magnitude that it is manifestly in the interests of justice that any appeal be
noted directly to this Court. The merits of the appeal have been fully argued
and we have accordingly dealt with this matter as
if leave to appeal had been
granted.
[7] The attack on the constitutionality of the statutory
provisions on the one hand and on the actions of the government on the
other,
turned out to be two distinct aspects of the case. This judgment deals only
with the former.
Constitutionality of the statutory
provisions
[8] The appellant impugned the provisions of section
1(xii)[4] and section
6(2)[5] read
with section
38(2)[6] of the Electoral
Act[0] which, to the extent relevant
to this application, prescribe that South African citizens otherwise entitled to
vote may:
(a) Register as voters and have their names included in the common voters roll only if they are in possession of and produce an identity document (“the bar-coded ID”) issued after 1 July 1986 in accordance with the provisions of the Identification Act 72 of 1986 (“the 1986 Act”), a temporary identity certificate (“a TIC”) issued pursuant to the provisions of section 16 of the Identification Act 68 of 1997 (“the 1997 Act”) or a temporary registration certificate (“a TRC”) issued in terms of section 6(2) of the Electoral Act.
(b) Vote only if they are registered on the common voters roll and in possession of and produce the bar-coded ID or a TIC. The complaint was and is that these provisions infringe the right enshrined 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 . . . ”.
[9] The order sought in
the notice of motion was for a declaration:
“ . . . [T]hat the provisions of Section 1(vii) read with Sections 6(2) and 38(2) of the Electoral Act, No 73 of 1998 (‘the Electoral Act’) are inconsistent with the Constitution of the Republic of South Africa, . . . and therefore Invalid [sic] to the extent of its inconsistency as they exclude eligible voters included in the population register from voting in the 1999 elections.”
An order in such terms would
enable all South African citizens who otherwise qualify, and whose names are on
the population register,
to register and vote irrespective of whether they were
in possession of an identification document. It also means that no attack
is
directed at the exclusion of those South African citizens who would otherwise
qualify to vote, but whose names are not on the
population register. When this
was put to appellant’s counsel, they applied to amend this part of the
order and asked that
it be substituted by the following order:
“1. The definition of ‘identity document’ in Section 1 (xii) of the Electoral Act, No 73 of 1998, is declared unconstitutional and invalid to the extent that it excludes those documents recognised as identity documents under Section 8(3) of the Identification Act, No 72 of 1986.
2. Section 6(2) of the Electoral Act, No 73 of 1998 is declared unconstitutional and invalid to the extent that it limits the issue of temporary registration certificates to those South African citizens whose particulars are contained in the population register and by failing to provide for the issue of temporary registration certificates to South African citizens whose particulars are not contained in the population register and who have applied for an identity document.
3. The invalidity of the provisions referred to are suspended pending appropriate amendments which have to be effected before . . .”
This application was opposed, but I have come to the
conclusion that the respondent will suffer no prejudice if this aspect of the
matter were to be disposed of on the broader basis contended for by the
appellant.
Constitutional and statutory context of the
right
[10] The aspects of the Electoral Act in issue regulate the way in
which citizens must register and vote. The question which must
be answered is
whether these requirements constitute an infringement of the right to vote.
This can only properly be done in the
context of an analysis of the nature,
ambit and importance of the right in question, the effect and importance of
other related constitutional
rights, the inter-relationship of all these rights,
the importance of the need for an effective exercise of the right to vote and
the degree of regulation required to facilitate the effective exercise of the
right.
[11] The Constitution effectively confers the right to vote for
legislative bodies at all levels of government only on those South
African
citizens who are 18 years or older.[8]
It must be emphasised at this stage that the right to vote is not available to
everyone in South Africa irrespective of age or citizenship.
The importance of
the right to vote is self-evident and can never be overstated. There is however
no point in belabouring its importance
and it is sufficient to say that the
right is fundamental to a democracy for without it there can be no democracy.
But the mere
existence of the right to vote without proper arrangements for its
effective exercise does nothing for a democracy; it is both empty
and
useless.
[12] The Constitution takes an important step in the
recognition of the importance of the right to exercise the vote by providing
that all South African citizens have the right to free, fair and regular
elections.[9] It is to be noted that
all South African citizens irrespective of their age have a right to these
elections. The right to vote
is of course indispensable to, and empty without,
the right to free and fair elections; the latter gives content and meaning to
the
former. The right to free and fair elections underlines the importance of
the exercise of the right to vote and the requirement
that every election should
be fair has implications for the way in which the right to vote can be given
more substantive content
and legitimately exercised. Two of these implications
are material for this case: each citizen entitled to do so must not vote more
than once in any election; any person not entitled to vote must not be permitted
to do so. The extent to which these deviations
occur will have an impact on the
fairness of the election. This means that the regulation of the exercise of the
right to vote is
necessary so that these deviations can be eliminated or
restricted in order to ensure the proper implementation of the right to vote.
[13] The Constitution recognises that it is necessary to regulate the
exercise of the right to vote so as to give substantive content
to the right.
Section 1(d)1[0] contemplates the
existence of a national common voters roll. Sections
46(1)1[1],
105(1)1[2] and
157(5)1[3] of the Constitution all
make significant provisions relevant to the regulation of the exercise of the
right to vote. Their effect
is the following:
(a) National, provincial and municipal elections must be held in terms of an electoral system which must be prescribed by national legislation.
(b) The electoral system must, in general, result in proportional representation.
(c) Elections for the national assembly must be based on the national common voters roll.
(d) Elections for provincial legislatures and municipal councils must be based on the province’s segment and the municipality’s segment of the national common voters roll respectively.
The
existence of, and the proper functioning of a voters roll, is therefore a
constitutional requirement integral both to the elections
mandated by the
Constitution and to the right to vote in any of them.
[14] The right to
vote contemplated by section 19(3) is therefore a right to vote in free and fair
elections in terms of an electoral
system prescribed by national legislation
which complies with the aforementioned requirements laid down by the
Constitution. The
details of the system are left to Parliament. The national
legislation which prescribes the electoral system is the Electoral Act.
It
repeats the requirements for voting as being South African citizenship, a
minimum age of 18 years, and enrolment on the national
common voters
roll.1[4] These are requirements
set by the Constitution for the exercise of the franchise.
[15] The
requirement that only those persons whose names appear on the national voters
roll may vote, renders the requirement that
South African citizens must register
before they can exercise their vote, a constitutional imperative. It is a
constitutional requirement
of the right to vote, and not a limitation of the
right.
[16] The process of registration and voting needs to be managed
and regulated in order to ensure that the elections are free and
fair. The
creation of a Commission to manage the elections is a further essential though,
not sufficient ingredient in this process.
In order to understand the enormity
of the problem, one has just to picture the spectre of millions of South
Africans arriving at
registration points or voting stations armed with all
manner of evidence that they are entitled to register or to vote, only to have
the registration or electoral officer sift through this evidence in order to
determine whether or not each of such persons is entitled
to register or to
vote. It is to avoid this difficulty that the Electoral Act makes detailed
provisions concerning registration,
voting and related matters including the way
in which voters are to identify themselves in order to register on the common
voters
roll and to vote.
[17] The detailed provisions of the Electoral
Act serve the important purpose of ensuring that those who qualify for the vote
can
register as voters, that the names of these persons are placed on a national
common voters roll, and that each such person exercises
the right to vote only
once. Some form of easy and reliable identification is necessary to facilitate
this process. It is in this
context that the statutory provision for the
production of certain identity documents must be located. The absence of such a
provision
could render the exercise of the right to vote nugatory and have grave
implications for the fairness of the elections. The legislature
is therefore
obliged to make such provision.
The nature of the
enquiry
[18] The appellant did not dispute that proof of identity
and citizenship for registration, and proof of enrolment on the voters
roll for
voting, are necessary components of the electoral system contemplated by the
Constitution. What was disputed was whether
the Electoral Act could prescribe
that the only means for such proof was a bar-coded ID or TRC for registering and
a bar-coded ID
or TIC for voting. The submissions on behalf of the appellant
were advanced at two levels. In the first place, it was contended
that the
relevant provisions on their face and evaluated in relation to the
constitutional right to vote infringe this right. The
question of the facial
inconsistency of the impugned provisions with the right to vote and the right to
free and fair elections as
encapsulated in the Constitution must be addressed
both in relation to the rationality of the provision and to whether it infringes
the right. Although it was specifically mentioned in response to questions by a
member of the Court that the appellant relied on
facial inconsistency, no
substantial argument was advanced in support of such a contention. Secondly, the
argument was that the consequences
of the documentary requirements constituted a
denial of the right to vote to millions of South African citizens who were not
in possession
of the bar-coded ID. Many of these persons (millions of people),
so it was argued, would not be able to vote for a variety of inter-related
reasons. The submissions were that the Department of Home Affairs (“the
department”), charged with the responsibility
of issuing these documents,
did not have the capacity to produce them timeously, that the cost of acquiring
the documents constituted
a real impediment and that potential voters were not
aware, or had not been made sufficiently aware, of the documentary requirements
to enable them to apply for the documents in time. It was contended in this
context that South African citizens who were in possession
of identity documents
issued pursuant to legislation which was operative before the 1986 Act came into
force ought to have been allowed
to use them.
[19] It is to be
emphasised that it is for Parliament to determine the means by which voters must
identify themselves. This is not
the function of a court. But this does not
mean that Parliament is at large in determining the way in which the electoral
scheme
is to be structured. There are important safeguards aimed at ensuring
appropriate protection for citizens who desire to exercise
this foundational
right. The first of the constitutional constraints placed upon Parliament is
that there must be a rational relationship
between the scheme which it adopts
and the achievement of a legitimate governmental purpose. Parliament cannot act
capriciously
or arbitrarily. The absence of such a rational connection will
result in the measure being unconstitutional. An objector who challenges
the
electoral scheme on these grounds bears the onus of establishing the absence of
a legitimate government purpose, or the absence
of a rational relationship
between the measure and that purpose.
[20] A second constraint is that
the electoral scheme must not infringe any of the fundamental rights enshrined
in chapter 2 of the
Constitution. The onus is once again on the party who
alleges an infringement of the right to establish it. The contention in this
appeal is that the impugned provisions of the Electoral Act constitute a denial
of the right to vote to a substantial number of South
African citizens. Any
scheme designed to facilitate the exercise of this right carries with it the
possibility that some people
will not comply with its provisions. But that does
not make the scheme unconstitutional. The decisive question which arises for
consideration in this case is the following: when can it legitimately be said
that a legislative measure designed to enable people
to vote in fact results in
a denial of that right? What a party alleging that an Act of Parliament has
infringed the right to vote
is required to establish in order to succeed will
emerge in the process of answering this question.
[21] The exercise to be carried out by a court entails an evaluation of
the consequences of a statutory provision in the process
of its implementation
which occurs at some time in the future. It is necessary, at the outset of the
enquiry, to determine the nature
of the consequence that is impermissible. The
consequence that will be impermissible in the present case can best be
determined
by focussing on the question as to what Parliament must achieve.
Parliament must ensure that people who would otherwise be eligible
to vote are
able to do so if they want to vote and if they take reasonable steps in pursuit
of the right to vote. More cannot be
expected of Parliament. It follows that
an impermissible consequence will ensue if those who wish to vote and who take
reasonable
steps in pursuit of the right, are unable to do so.
[22] It
is necessary to determine the circumstances that are to be taken into account in
deciding whether the impugned provisions
infringe the right to vote. There are
two possibilities. A court can make an evaluation in the light of the
circumstances pertaining
at the time the provisions were enacted, or those which
exist at some later date when the constitutionality of the provisions are
challenged. This Court has adopted an objective approach to the issue of the
constitutionality of statutory
provisions.1[5] A pre-existing law
becomes invalid to the extent of its inconsistency with the Constitution, the
moment the Constitution comes into
force. It is irrelevant that this Court may
declare it to be inconsistent only several years later. Similarly, a statutory
provision
which is passed after the Constitution comes into operation is invalid
to the extent of its inconsistency with the Constitution,
the moment the
provision is enacted. This is so regardless of the fact that its invalidity is
only attacked, or the concrete circumstances
that form the basis of the attack
only become apparent, long after its enactment. Consistent with this objective
approach to statutory
invalidity, the circumstances which become apparent at the
time when the validity of the provision is considered by a court are not
necessarily irrelevant to the question of its consequential invalidity.
However, a statute cannot have limping validity, valid one
day, invalid the
next, depending upon changing circumstances. Its validity must ordinarily be
determined as at the date it was passed.
Nevertheless, the implementation of an
Act which passes constitutional scrutiny at the time of its enactment, may well
give rise
to a constitutional complaint, if, as a result of circumstances which
become apparent later, its implementation would infringe a
constitutional right.
In assessing the validity of such a complaint, it becomes necessary to
determine whether the proximate cause
of the infringement of the right is the
statutory provision itself, or whether the infringement of the right has been
precipitated
by some other cause, such as the failure of a governmental agency
to fulfill its responsibilities. If it is established that the
proximate cause
of the infringement, in the light of the circumstances, lies in the statutory
provision under consideration, that
provision infringes the right. This is not
a departure from the objective approach to unconstitutionality. It is merely a
recognition
of the fact that a constitutional defect in a statutory provision is
not always readily apparent at the time of its enactment, but
may only emerge
later when a concrete case presents itself for adjudication.
[23] It is
necessary to apply an objective test in deciding whether the Act of Parliament,
which makes provision for the electoral
scheme challenged in the present case,
is valid. Parliament is obliged to provide for the machinery, mechanism or
process that is
reasonably capable of achieving the goal of ensuring that all
persons who want to vote, and who take reasonable steps in pursuit
of that
right, are able to do so. I conclude, therefore, that the Act would infringe
the right to vote if it is shown that, as at
the date of the adoption of the
measure, its probable consequence would be that those who want to vote would not
have been able to
do so, even though they acted reasonably in pursuit of the
right. Any scheme which is not sufficiently flexible to be reasonably
capable
of achieving the goal of ensuring that people who want to vote will be able to
do so if they act reasonably in pursuit of
the right, has the potential of
infringing the right. That potential becomes apparent only when a concrete case
is brought before
a court. The appellant bears the onus of establishing that
the machinery or process provided for is not reasonably capable of achieving
that purpose. As pointed out in the previous paragraph, it might well happen
that the right may be infringed or threatened because
a governmental agency does
not perform efficiently in the implementation of the statute. This will not
mean that the statute is
invalid. The remedy for this lies elsewhere. The
appellant must fail if it does not establish that the right is infringed by the
impugned provisions in the manner described earlier. This Court held in
August and Another v The Electoral Commission and
Others1[6] that all
prisoners would have been effectively disenfranchised without constitutional or
statutory authority by the system of voting
and registration which had been put
into place by the Commission. This case is different, however, because the
alleged disenfranchisement
is said to arise from the terms of the statute and
not from the acts or omissions of the agency charged with implementing the
statute.
[24] O’Regan J in her dissenting judgment measures the
importance of the purpose of the statutory provision in relation to
its effect,
and asks the question whether the electoral scheme is reasonable. She goes on
to conclude that the scheme is not reasonable,
and for that reason, to hold that
the relevant provisions of the Electoral Act are inconsistent with the
Constitution. In my view
this is not the correct approach to the problem.
Decisions as to the reasonableness of statutory provisions are ordinarily
matters
within the exclusive competence of Parliament. This is fundamental to
the doctrine of separation of powers and to the role of courts
in a democratic
society. Courts do not review provisions of Acts of Parliament on the grounds
that they are unreasonable. They
will do so only if they are satisfied that the
legislation is not rationally connected to a legitimate government purpose. In
such
circumstances, review is competent because the legislation is arbitrary.
Arbitrariness is inconsistent with the rule of law which
is a core value of the
Constitution.1[7] It was within the
power of Parliament to determine what scheme should be adopted for the election.
If the legislation defining the
scheme is rational, the Act of Parliament cannot
be challenged on the grounds of “unreasonableness”. Reasonableness
will only become relevant if it is established that the scheme, though rational,
has the effect of infringing the right of citizens
to vote. The question would
then arise whether the limitation is justifiable under the provisions of section
36 of the Constitution,
and it is only as part of this section 36 enquiry that
reasonableness becomes relevant. It follows that it is only at that stage
of
enquiry that the question of reasonableness has to be considered. The first
question to be decided, therefore, is whether the
scheme prescribed by the
Electoral Act is rational.
Rationality of the statutory
provisions
[25] It is, in my view, convenient to determine whether
the impugned provisions are rationally related to a legitimate governmental
purpose in two stages. The first part of the enquiry is whether a facial
analysis of the provisions in issue, in relation to the
Constitution, has been
shown to lack rationality; the second is whether these provisions can be said to
be arbitrary or capricious
in the light of certain circumstances existing as at
the date of the adoption of the statute.
[26] An examination of the
1986 Act shows that the requirement of the bar-coded ID as the principal method
of identification is,
on the face of it, rationally connected to the legitimate
governmental purpose of enabling the effective exercise of the vote. The
document contains the photograph of the holder, the holder’s name and
particulars from which the age of the person to whom
it was issued can be
readily established.1[8] The bar-
code on the document facilitates quick, easy and reliable verification of the
fact that the name of the person has been
entered on the population register.
In addition, it is much easier for officers charged with the verification of the
necessary particulars
at the point of registration and voting to perform this
task if they are to do so consistently by reference to a single type of identity
document. Recognition of a multiplicity of documents for this purpose could be
potentially confusing, give rise to error and slow
down the
process.
[27] Finally, there is the advantage of the bar-coded ID
arising out of the fact that it is a prerequisite to the issue of this document
that fingerprints are recorded on the population register. The issue of most
other identity documents, apart from the reference
books, is not subject to this
prerequisite. Although this advantage is not specifically elaborated on in the
papers, the importance
of the document having a recent photograph of the person
concerned and sets of his/her fingerprints was emphasised by Mr Mokoena
in his
answering affidavit. Mr Mokoena also stated that there was consensus across all
political formations that bar-coded IDs were
the most satisfactory document to
prevent electoral fraud. It is significant in this regard that the Electoral
Act authorises electoral
officers to take the fingerprints of potential
voters1[9] so that they can satisfy
themselves of the identity of the person to whom it was issued. The only
conceivable reason for the conferment
of this power is to enable its utilisation
to set in motion a process for the resolution of disputes or doubts concerning
the identity
of a would be voter, should the occasion arise. Furthermore, the
knowledge of the possibility that fingerprint comparisons could
be resorted to
if there is a dispute or doubt, would have an inhibiting effect on a person
intending to use someone else’s
bar-coded ID for the purposes of
voting.
Effect of the relevant circumstances
[28] The
facial analysis demonstrates that the statutory provisions asserting the
disputed documentary requirements are rationally
related to the legitimate
governmental purpose of ensuring the effective exercise of the right to vote. I
will now examine whether
the disputed measures can be said to be arbitrary or
capricious in the light of the circumstances which, according to the appellant,
were relevant.
[29] The appellant relied on two reports of the Human
Sciences Research Council (“the HSRC”) of surveys conducted during
the period mid-June to the latter half of July 1998 and the report of a survey
by Markinor released in November 1998. These surveys
were concerned with the
number of people in possession of various types of identity documents or not in
possession of any identity
documents at all, as the case may be. The question
as to whether and to what extent the results of these surveys can properly be
regarded as circumstances relevant for evaluation for rationality of the
legislative purpose is a difficult one, but I am, for the
purposes of this
judgment, prepared to assume that they are, subject to the qualifications in
this paragraph. There are no material
differences in the results of these
surveys. The results of surveys cannot, of course, be accepted as accurate to
the last detail
but they can be accepted as being a reasonable guide to what
some of the relevant circumstances were at the time the Act was passed.
Various
surveys and estimates referred to in the papers have put the eligible voting
South African population at between 23.6 and
25.9 million people. The
difference in these estimates is not material and I think it will be safe to use
an eligible voting population
figure of 25 million people for the purpose of
setting out and highlighting relevant findings of these reports and their
implications.
The regional survey conducted by the HSRC is used as a point of
departure.
[30] The results indicate that:
(a) About 20 million people (approximately 80 percent) of the estimated South African voting population were already in possession of bar-coded IDs at the time of the survey.
(b) It follows that about 5 million people who were eligible to vote did not
have bar-coded IDs.
(c) Approximately half of these five million people (10 percent of the total voting population) had no identity document at all, while the other half possessed identity documents issued in terms of old legislation or by one of the TBVC2[0] states.
(d) The names of all the two and a half million people who have some form of
identity document other than the bar-coded ID will have
been included on the
population register save for about one hundred and fifty thousand people
(estimated 0,6 percent of the estimated
total voting population) who, according
to the survey, are in possession of identity documents issued by the TBVC
states.
[31] Although the appellant relied on the circumstances which
emerged from these surveys wholly in support of the contention that
the
statutory provision constituted a denial of the vote, this Court is not relieved
of the obligation to test the rationality of
the provisions in the light of
these circumstances. There can be nothing irrational, arbitrary or capricious
about the bar-coded
ID serving as the main identification instrument which will
show at a glance the citizenship and the age of the holder. According
to the
survey, approximately 80 percent of South Africans had this document.
[32] About two and a half million people had no identity document at
all at the time of the surveys. Once it is accepted, however,
that the
bar-coded ID is appropriate as the main identification document for the purpose
of registration and voting and that some
reliable form of identification is
indispensable, it follows, that it is futile to require people in this category
to acquire some
other form of identity document instead of the bar-coded ID.
Those who have no identification documents have been obliged to apply
for them
and have not done so. Indeed, the 1986 Act obliged all persons over the age of
sixteen years to apply for the bar-coded
ID on pain of criminal
sanction.2[1] It follows that it is
also rational that the bar-coded ID should be the main identification document
for this category as well.
[33] The next question to be answered is
whether it is arbitrary not to provide that the two and a half million people
who have other
identity documents be allowed to use them as alternative methods
of identification for purposes of registration and voting. Some
of the factors
which establish the rationality of the requirement of the bar-coded ID as the
method of identification have been discussed.
It has been mentioned that it is
easier and less confusing for officers charged with the task of verification to
do so consistently
by reference to a single type of identity document than by
reference to a multiplicity of them. The people who are in possession
of other
forms of identification could have one of seven different identity documents: a
blue identity document issued in terms of
pre-1986 South African legislation, a
green one also issued in terms of this legislation, reference books issued in
terms of old
South African law and one of four identity documents issued by each
of the TBVC states in terms of their legislation.
[34] It is true that
the 1986 Act has been repealed, that the validity of the bar-coded ID and all
identity documents issued in terms
of previous legislation have nonetheless been
preserved,2[2] and that all identity
documents are to be replaced by an identity card issued pursuant to the 1997 Act
at some time in the future.
The implication of all of this is that those who
are in possession of forms of valid identification other than the bar-coded ID
are compelled to obtain the bar-coded ID for the purpose of registration and
voting. The argument is that those in this category
are being unfairly treated,
more particularly because they will soon be required to obtain identity cards in
terms of the 1997 Act.
There is no evidence of precisely when the new scheme
will be introduced nor of the details of the scheme by which more than twenty
two million identity documents are to be replaced with identity
cards.
[35] There are three essential differences between the bar-coded
ID and other forms of identity documents. The first is the presence
of the
bar-code while the second is that, unlike in the case of the bar-coded ID, other
forms of identification (except for the few
reference books which are still in
existence) do not require the fingerprints of the holder to be recorded in the
population register.
The advantages of a bar-code and the fingerprints have
been traversed. The third difference is that other forms of identification
contended for have a common feature: they constitute a powerful symbol and
reminder of a shameful past characterised by racial discrimination,
oppression
and exploitation, untold misery and suffering and the denial to the majority of
South African citizens not merely of their
right to vote but also of their
essential humanity. This is a factor of considerable significance. These
documents were issued
on a racial basis, and reflect the race of the person to
whom they were issued. They constituted a pillar on which racialism could
be
effectively structured. For many in our country the use of these documents for
electoral purposes would be highly embarrassing
if not positively
offensive.
[36] On the other hand, the documentary requirements pose no
real disadvantage to most people in this category concerning registration
and
voting. The evidence is that, except for the small number in possession of
identity documents issued by the TBVC states, their
names are already on the
population register with the result that TRCs can be issued to them within 24
hours. Furthermore, there
is no evidence that the cost and inconvenience
mentioned in argument is a real factor. The affidavits filed in the application
did
not raise the issue that the costs attendant upon the acquisition of the
required documents represented an undue burden. It appears,
however, that some
agreement was reached between counsel as to the costs of acquiring these
documents. Because the matter was not
dealt with on the papers, there is
nothing on record indicating whether there should be arrangements in place to
accommodate those
who are too poor to afford to pay for the photographs which
must be tendered as part of the application for the bar-coded ID and
the TRC.
The application does not seek to make out the case that the impugned provisions
discriminate against people on the ground
of their poverty. No finding can
therefore be made on this aspect. It follows that the provisions in issue are
neither arbitrary
nor capricious even if regard is had to the suggested
circumstances.
Denial of the right to vote
[37] The facial
analysis reveals nothing that suggests any denial of the right to vote. The
argument on this leg of the enquiry
was advanced largely on the basis that the
legislative provision in issue would have the effect of depriving millions of
people of
the right to vote because the department did not have the capacity to
issue the relevant documents to all persons entitled to vote
within the limited
time available. The evidence was also largely directed at supporting such a
contention and, to this end, was
focussed on the inability of the department to
meet the anticipated demand on the basis of its performance both before and
after
the passage of the legislation. However, the issue we have to determine
is not whether the department or other organs of state have
performed their
functions in a manner which has resulted in a denial of the vote to a
substantial number of South Africans, but
whether the measure itself constitutes
such denial and is on that account an infringement of the right to vote. To
establish this,
the appellant must show that the machinery, mechanism or process
provided for by the Electoral Act is not reasonably capable of ensuring
that
those who want to vote and who take reasonable steps in pursuit of the right,
are able to exercise it.
[38] The appellant’s counsel conceded
that there could be no constitutional complaint if the Electoral Act imposing
the relevant
requirements had been in force for a period of more than 4 years.
The arguments relating to the absence of knowledge and opportunity
and the
incapacity of the department to issue the relevant documents were really founded
on the criticism that the Electoral Act
which set out these requirements was
promulgated as late as 16 October 1998. This criticism is not devoid of
substance and is cause
for concern. There can be no doubt that the Electoral
Act should have been promulgated much earlier than it was, more particularly
because the elections had to be held before 25 July 1999. This is the first
time that registration and the compilation of a national
common voters roll are
necessary and the shortness of time could make compliance with the
constitutional imperatives of an election,
the registration of voters, and the
compilation of an accurate voters roll, difficult.
[39] The crucial
question to be answered here is whether it has been established that the time
was so short that the scheme prescribed
by the Act for registration and voting
was not reasonably capable of achieving its purpose of ensuring that those who
wanted to vote
and who acted reasonably in pursuit of that purpose would have
been able to do so. It is contended, on the basis of the finding
of the HSRC to
the effect that more than 60 percent of respondents in the survey did not know
that the bar-coded ID was a registration
and voting requirement, that there was
an insufficient campaign by the department to make people aware that they needed
the bar-coded
ID to vote. It was further submitted that the consequence of this
was that the lack of knowledge and absence of a campaign taken
together denied
many people their right to register and to vote. Such contentions however
relate to the implementation of the scheme
rather than to the constitutionality
of the Act, and in particular to whether the scheme was able to achieve the
stated purpose.
[40] The evidence shows that about 80 percent of
potential voters were already in possession of bar-coded IDs by July last year,
that there had been publicity of the fact that an identity document was required
for registration and voting from about April last
year and that there was a more
pointed campaign concerning the bar-coded ID requirement since about September
last year. There is
no evidence of any current survey indicating the state of
knowledge of the electorate. The Act was promulgated nine months before
elections had to be held so that the relevant circumstance prevailing as at the
promulgation of the Act was that people who wanted
to vote and took reasonable
steps to do so would have had six months within which to apply for the necessary
documents.2[3] Furthermore, any
person who seriously intended to vote could reasonably have been expected to
make the necessary enquiries concerning
the documentary requirements for
registration.
[41] A prevailing circumstance of some importance is that
all people who had a genuine desire to vote would have had to cast their
ballot
in favour of one or other political party. It must be borne in mind that the
responsibility of ensuring that people know of
the requirements for voting is
not only that of the government. Indispensable to any democratic process is
that political parties
will ensure that their potential supporters are aware of
the prerequisites of voting and comply with them. It was also reasonable
to
expect that the Commission would perform its functions effectively and that it
was likely to take reasonable steps to ensure that
documentary requirements as
well as the need for registration would be publicised before and during the
period of registration.
Finally, it would have been apparent in October 1998
that people who wanted to vote and went to register would probably have been
informed of the documentary requirements by registration officials. It may also
be mentioned that, as it happens, a period of at
least 9 days was set aside for
registration at more than 14 000 registration points, consisting of 3 separate
periods of 3 days each,
interspersed over a period of 3 months. Following that,
the Commission deemed it appropriate to close general registration. It
must
have been satisfied that it was appropriate to do so. In these circumstances it
has not been established that the time was
so limited that the machinery
established by the Act was not reasonably capable of enabling those who wished
to register to do so.
[42] It remains to consider the capacity
argument. The essence of this contention has always been that the department is
building
up a backlog in relation to the processing and issuing of bar-coded
IDs, and that the history of it’s performance shows that,
if all those who
had not yet applied for bar-coded IDs applied for them by the date on which it
was anticipated that registration
would close, the department would be inundated
with applications and unable to cope. It was contended on behalf of the
respondents
that the assumption that all people who are entitled to register and
vote and who do not have bar-coded IDs would want to do so was
unfounded. In
any event, the department gave the assurance that it did have the capacity to
cope even if this were to happen and
gave details of the contingency
arrangements which had been made to satisfy an unprecedented demand for
bar-coded IDs at the last
minute.
[43] The circumstances which existed
at the time that the Act was adopted which have a bearing on the issue as to
whether the department
would probably have the capacity to issue TRCs and
identity documents to all people who wanted to vote, are the following:
(a) The HSRC expressed doubt about the capacity of the department to issue
the necessary documents to all those who would require
them on the basis of the
substantial numbers who did not have such documents and survey results which
indicated that, as at July
1998, there were considerable delays in the issuing
of bar-coded IDs experienced by a large proportion of people who applied for
them.
(b) In the light of this report the Commission expressed reservations about the department’s capacity to meet the demand for bar-coded IDs.
(c) The department assured the national assembly that it did have the necessary capacity and if necessary, would increase its capacity to meet the demand.
(d) The HSRC and the Commission had not made any investigation into the ability and commitment of the department to increase its capacity in order to ensure that people who wanted to vote were able to obtain the necessary documents timeously.
(e) Subsequent to the HSRC report and the Commission’s reaction to it, a decision was taken to allow registration to proceed on the basis of TRCs which meant that bar-coded IDs would not be required for the purpose of registration.
(f) Holders of blue IDs could therefore get registration documents within twenty four hours.
(g) Adequate time was available for TRCs to be procured before registration
would close.
In the circumstances, the machinery provided by the Act was
reasonably capable of achieving the purpose of registration for a common
voters
roll. Bar-coded IDs would be needed only for those who registered on TRCs.
When registration closed it would be known how
many such IDs had to be issued
before the date of the election. If it transpired that the department would not
be able to provide
bar-coded IDs timeously to those who needed them, appropriate
arrangements could be made at that stage. It was always within the
power of
Parliament to amend the Act if it transpired that the department’s
assurances were not correct, or that it was necessary
to do so for any other
purpose. In this regard, Parliament could derive comfort from the fact that the
elections were to be facilitated,
managed and controlled by the
Commission2[4] which was independent
and impartial, and had a continuing duty to satisfy itself that the elections
would be free and fair. The
Commission would be under a duty to report to
Parliament if prospective voters were in fact unable to register or if it
appeared
that they would be unable to vote because of the department’s
failure or inability to implement its assurances. No such report
has been
made.
[44] It follows that the dispute about whether the department has
been performing efficiently in issuing the required documentation
and whether it
presently has the capacity to issue these documents to all those who require
them is, strictly speaking, irrelevant
to the determination of the
constitutionality of the impugned provisions. The possible consequences of the
adoption of the statutory
measure by Parliament existing on the date of the
adoption are limitless: some people may have found the documentary requirements
too burdensome; some may not have wanted to register at all; other people may
have applied for their documentation and not have received
them on time; the
department’s capacity may have turned out to be utterly insufficient and
nothing may have been done to remedy
that. But, as has been indicated, this
relates to the question of implementation, not to that of constitutionality.
The mere possibility
of people not being able to register does not begin to
carry the day. The only relevant enquiry is concerned with the probable
consequences
of the statutory provision. On the evidence before this Court,
there is no probability that potential voters who really wanted to
register
would not have been able to do so.
[45] The appellant contended that the
department has in fact failed to meet its assurance, and that this failure is
evidence on which
it can rely to show that it was probable at the time the Act
was passed, that this would happen. It is not clear to me whether the
evidence
tendered is relevant to the question whether the provisions of the Act
constituted a denial of the right to vote. But even
if such evidence were
relevant, it does not establish the necessary facts. The particulars on which
this broad contention was based
changed periodically because the department was
continuously receiving, processing and issuing bar-coded IDs. This meant that
the
contention had to be adjusted to suit the new circumstances but it was
always based on three propositions: the department’s
statistics were
unreliable; the department was inefficient and was continuously building a
backlog; there was no reason to believe
the assurances of the department that
it could cope with the issue of the required bar-coded IDs. The High Court
rejected these
contentions holding that, on the statistics then available, there
was insufficient reason to assume, on a speculative basis, that
there would be a
huge number of applications with which the department would not be able to cope
and that there was an insufficient
basis upon which the assurances given by the
department could be gainsaid. I agree with this conclusion.
[46] [ This does not mean however, that the only remaining alternative to declaring the legislation unconstitutional, is that the freeness and fairness of the election must be determined after the election is held. If the Commission did not allow sufficient time for registration, had too few registration points, or acted in any other way that was tantamount to a denial of the vote, any aggrieved party could apply for an appropriate mandamus against the Commission. This indeed happened in August2[5] in which this Court was asked to, and did issue orders, aimed at the reasonable facilitation of voting by prisoners. If, on the other hand, the department conducted itself in a way which materially prejudiced the right to vote, any aggrieved party could similarly have engaged a court in pursuit of an appropriate order. This is because the right to vote and the corresponding duty of all relevant organs of state to facilitate the exercise of that right are continuous rights and obligations respectively.
[47] Finally, it should be
mentioned that the available statistics point away from the conclusion that the
imposition of the contested
documentary requirements have resulted in a denial
of the right to vote to millions of South African citizens. According to the
results of the HSRC survey, twenty million people already had bar-coded IDs as
at the end of July 1998. Despite the dispute as to
the reliability of the
statistics provided by the department, it can safely be accepted that at least
two and a half million people
have been issued with bar-coded IDs since the date
of the HSRC survey. Yet only about seventeen million people have registered.
This means that the reasons why people have not registered are probably complex
and varied and at best for the appellant, not determinable
at this stage. A
contention that those who are otherwise qualified to register would not do so
because of the disputed documentation
requirement is accordingly of no
substance.
[48] Before this Court, the appellant advanced an argument
based on what was alleged to be a breach of sections 9(1) and 9(2) of
the
Constitution. However, it is clear from what has been said in this judgment
that although the documentary requirements in issue
may be said to differentiate
between different categories of people, there is a rational connection between
the measure and the legitimate
governmental purpose of facilitating the
effective exercise of the important right to vote. No discrimination or
unfairness has
been
established.2[6]
[49] The attack on the constitutionality of these provisions fails.
[50] I have read the judgment of Langa DP
concerning the challenge to the constitutionality of certain actions of the
government
which were said to interfere with the independence and impartiality
of the Commission and agree that for the reasons set out in that
judgment, no
order should be made concerning this aspect of the matter.
[51] The
appeal fails. The question of costs must be determined. The High Court awarded
costs to the respondents. There is no
valid reason for us to disturb the
exercise of a discretion by that Court. But this Court is not obliged to award
the respondents
their costs consequent upon the failure of the appeal. Although
the appellant has effectively lost, it raised important matters
which needed to
be finally determined in the public interest. In particular, some of the
matters raised by the appellant concerning
the infringement of the independence
of the Commission raised important matters of public concern. Furthermore, the
government cannot
be said to have contributed to the administrative and
financial independence of the Commission with any particular rigour, vigour
or
urgency. In the circumstances there will be no order of costs in the appeal.
Order
[52] The appeal is dismissed with no order as to costs.
Chaskalson P,
Langa DP, Ackermann J, Goldstone J, Madala J, Mokgoro J and Sachs J concur in
the judgment of Yacoob J.
LANGA DP:
The independence of the
Commission
[53] I have read the judgment of Yacoob J and agree, for
the reasons he has set out, with his conclusions and with the order proposed
by
him. It is however necessary for me to deal with a further matter which was
raised by the appellant with regard to the constitutionality
of the conduct of
the government in its dealings with the Commission.
[54] In its founding
affidavit the appellant contended that the independence of the Commission had
not been respected by the government
and that as a result, the Commission was
unable to exercise its powers and perform its duties under the Electoral
Commission Act.
Two complaints were made in this regard. Firstly, that the
government’s refusal to accept the advice of the Commission that
bar-coded
IDs should not be the only identification documents acceptable for the purposes
of registering and voting, had resulted
in a delay in the passing of the
Electoral Act, and in the introduction of an electoral system which was unfair.
Secondly, that
inadequate funding had been provided to the Commission as a
result of which it had been unable to appoint the necessary officials
to attend
to the registration of voters, and this had led to such functions being taken
over by the government.
[55] The order sought by the appellant in
respect of these contentions was set out in paragraph 3 of the notice of motion
in the
following terms:
“3. Declaring the following conduct of First, Second and Third Respondents insofar as it infringes the independence and/or impartiality of Fourth and/of [sic] Fifth Respondent to be inconsistent with the Constitution read with the Electoral Act and the Electoral Commission Act 51 of 1996 (“Electoral Commission Act”), and therefore invalid to the extent of its inconsistency therewith:
3.1 The financial constraints placed upon Fourth and/or Fifth Respondent;
3.2 The usurpation of, alternatively interference with, alternatively deprivation of Fourth and/or Fifth Respondent’s powers, duties and functions set out in Sections 5 and 12 of the Electoral Commission Act and Sections 4, 5 and 14 of the Electoral Act read with sections 181 and 190 of the Constitution.
3.3 The withholding of bar-coded identity documents issued by Second Respondent’s department at Second Respondent’s offices throughout the country without delivery thereof to those having applied therefor, alternatively, without proper notification thereof to those applicants.”
[56] The allegations made by
the appellant in its founding affidavit in support of the relief claimed by it
in prayer 3 of the notice
of motion were as follows:
(a) The financial constraints imposed upon the Commission arose out of
inadequate funding. As a result of this inadequate funding
it was and is not
possible for the Commission to perform its functions under the Constitution and
the Electoral Commission Act.
(b) Because of the inadequate funding referred to in paragraph (a) above, the Commission was unable to employ the staff needed, in particular for registration, and as a result that task was taken over by the government and directed out of the office of the Deputy President.
c) ( The government caused the Electoral Act to be passed notwithstanding the fact that the Commission was of the opinion that this legislation might well lead to the disenfranchisement of voters.
d) (A substantial number of bar-coded IDs which had been issued to applicants were retained by the Department of Home Affairs (“the department”) in its offices, instead of being delivered to the applicants concerned.
[57] These claims were dismissed by the High Court which held that
“ . . . the applicant has made out no case whatever for
any of the relief
claimed by it. The application must hence fail.”
[58] In support
of its contention that the provisions of the Electoral Act requiring bar-coded
IDs for registering and voting infringed
the independence of the Commission, the
appellant referred to the findings of the HSRC and Markinor reports, both of
which are dealt
with fully in the judgment of Yacoob J. As appears from the
judgment of Yacoob J, the proposal that a bar-coded ID be required for
registering and voting originated in the recommendation of the Commission. The
Commission subsequently expressed concern as to the
capacity of the department
to provide bar-coded IDs to those prospective voters who did not yet have such a
document, but who were
otherwise qualified to vote, and who wished to register
and vote in the election. This led to the commissioning of the HSRC report.
After such report had been received, the Commission recommended that the
requirement that a bar-coded ID be the only identification
document acceptable
for registration and voting, be amended, and that provision be made for other
suitable identification documents
to be used for such purposes. As appears from
the judgment of Yacoob J, Parliament did not accept this
recommendation.
[59] Parliament’s decision to retain the provision
requiring bar-coded IDs for voting cannot be said to infringe the independence
or impartiality of the Commission. The competence to pass the Electoral Act
vested in Parliament and not in the Commission. This
has been accepted by the
Commission. In his affidavit on behalf of the Commission, its Chairperson dealt
with the issues which had
been raised in the HSRC report and by the appellant
concerning the use of bar-coded IDs. He expressed concern as to the capacity
of
the department to meet the demand which would be made for such documents by
those who did not have them. He went on to say:
“On the other hand, the founding affidavit errs . . . in averring that
the rejection of the IEC’s proposal with regard
to barcoded identity
documents constituted an interference by first, second and third respondents
with the administrative independence
of the IEC. The IEC, having received the
report of the HSRC regarding the incidence and distribution of eligible voters
not in possession
of such documents, was of the view that the requirement should
be relaxed. It made its view known to the Executive and to the Legislature.
After debate, however, the legislature decided otherwise. The IEC thought that
the Legislature’s decision was a mistake, and
that the constitutionality
thereof would be dependent upon whether the Department of Home Affairs could
timeously provide sufficient
numbers of voters with new identity documents (as
the second respondent and others asserted it could). Accordingly, the IEC
resolved
to perform its duties in terms of the law as made by the Legislature.
It has done so since. Nothing in that sequence of events was
in any way an
interference with the independence of the IEC.”
[60] The
Commission is under a duty to satisfy itself that the elections are free and
fair, and to report to Parliament if they are
not or are likely not to be. As
Yacoob J points out in his judgment, that is a continuing obligation. If it
transpires that as
a result of the legislative framework, the elections will not
be free and fair, the Commission must say so, and there is no reason
to believe
that it will not do so. As Yacoob J shows in his judgment, however, it has not
been established that insufficient time
was allowed in the circumstances which
existed when the Electoral Act was passed, for all who wished to register and
vote to apply
for the bar-coded IDs that were required for such purpose; nor has
it been established that those who have applied for bar-coded
IDs and have
registered on the strength of such application, will not receive such documents
in time to vote, or be provided with
temporary identification certificates which
can be used for such purposes.
[61] Once the attack on the validity of the
Electoral Act fails, the contention that the independence of the Commission was
infringed
by the requirements of that Act, must also fail. The
Commission’s responsibility is to manage the elections in accordance
with
the provisions of the Act. There is nothing in the provisions of the Act which
detract from the independence of the Commission.
[62] The issue relating
to the funding of the Commission is set out in somewhat general terms in the
founding affidavit in which
a comparison is made between the funding made
available to the Commission for the first democratic elections, and the funding
available
to the Commission for the current elections. It was contended that
less money had been made available for the current elections,
yet a great deal
more work was required of the Commission in the light of the constitutional
requirement that a national voters roll
be compiled.
[63] The question
of the funding made available to the Commission is dealt with fully in the
affidavit of the Chairperson of the
Commission. His affidavit shows that the
Commission has always been allocated less money than it asked for and which, in
its estimation,
it required for the performance of its functions. There were
extensive negotiations concerning the money which the Commission would
require
for the 1998/99 financial year. The Commission was of the view that it could
not fulfill its responsibilities with an amount
of less than R965 million. The
Department of Finance would not accept this figure. On 4 March 1998 (the
financial year runs from
1 April to 31 March) it indicated that approval would
be given for the following amounts in respect of the Commission’s budget:
1998/9 R500 million; 1999/2000 R300 million; 2000/1 R200 million. It also
indicated that these amounts would be reviewed on a periodic
basis, and on the
strength of this, and in the belief that adequate funding would indeed be made
available if it was required, the
Commission continued to perform its duties.
In October 1998 the Commission was advised by the department that an additional
amount
of R100 million would be made available during the 1998/9 financial year.
The Commission took the view that it could not conduct
the registration of
voters on the limited budget of R600 million for that financial year, which was
more than R300 million less than
it required.
[64] It appears from the
affidavit of the Chairperson of the Commission that a process of discussions and
correspondence between
the Commission and the government was then entered into
which culminated in a meeting with the government chaired by the Deputy
President
and attended by the Acting Minister of Home Affairs and the Deputy
Minister of Home Affairs. A solution to the problem was reached
at this
meeting, which was described by the chairperson of the Commission as
follows:
“Through the good offices of the Deputy President a solution to the
impasse was formulated. In substance it amounted to this.
Instead of the IEC
continuing with the recruitment, training and deployment of remunerated
registration officers, the government
service would from its ranks and at its
own cost make available the approximately 72 500 registration officers needed
for the first
phase of the voter registration process scheduled to take place at
the end of November 1998. A sub-committee consisting of representatives
of the
Deputy President’s office, the Department of Home Affairs and the IEC was
appointed to implement the decision.”
[65] The affidavit reveals
that as a result of this arrangement some ten million voters were registered
during the first registration
drive which took place at the end of November in
the five northern provinces and at the beginning of December in the remaining
four
provinces. Although problems were experienced during the course of
registration, and the solution devised at the meeting between
the Commission and
representatives of the government was not considered by the Commission to be
ideal, the Commission was of the
opinion that at the time of the lodging of its
affidavit it could not be said that the arrangement would not be satisfactory.
In
his affidavit the Chairperson of the Commission said:
“I can say at this stage, however, that if sufficient staff is engaged
in good time for the IEC to attain [the improvement which
would ensue from the
employment and training of key personnel] the second phase of voter registration
will probably prove successful.
However, should it transpire during that phase
at the end January 1999 that the IEC cannot attain and maintain operational
control
over government servants seconded to it as registration staff, it will
not hesitate to inform government and the public accordingly.
The IEC will not
permit the use of government servants should this impair its ability manifestly
to perform its constitutional mandate
impartially. In this regard I wish to
draw attention to the provisions of section 14(4) of the Electoral Commission
Act which empower
the IEC “if it deems it necessary [to] publish a report
on the likelihood or otherwise that it will be able to ensure that
any pending
election will be free and fair.”
[66] The affidavit of the
Chairperson of the Commission was attested to on 7 January 1999. Since then
there have been two further
registration drives. There is nothing in the papers
to suggest that the Commission was not able to maintain operational control
over
the public servants seconded to the Commission for the purpose of conducting the
registration, nor that this arrangement interfered
with its constitutional
mandate to perform its duties impartially.
[67] According to the
Chairperson’s affidavit, the cost of the registration process was a
material cause of the difference
between the Department of Finance and the
Commission concerning the amount of money that would be required during the
1998/9 financial
year. That was addressed by the arrangement whereby members of
the public service would be seconded to the Commission without cost
to it for
the purposes of conducting the registration. No evidence was placed before the
High Court, or this Court, to show that
in the light of the arrangement made for
the registration of voters, the Commission has insufficient funds to carry out
its mandate.
What is significant is that the Commission does not make that
contention itself, and did not approach the High Court, or seek to
intervene in
the proceedings before this Court, to claim such relief.
[68] On the
information before it, the High Court correctly held that the appellant had
failed to establish the allegation that insufficient
funds had been made
available to the Commission to enable it to perform its functions and duties
under the Electoral Act and the
Electoral Commission Act.
[69] The last
complaint made in the High Court relating to the alleged infringement of the
independence of the Commission, was that
certain bar-coded IDs issued by the
department had not been delivered to the applicants. This complaint related to
the capacity
of the department to provide bar-coded IDs to the persons who had
applied for them, and has no bearing on the independence of the
Commission. In
this Court, the appellant relied on the allegations concerning the inability of
the department to issue the bar-coded
IDs in support of its contentions relating
to the capacity of the department, but correctly did not contend that this
infringed the
independence or impartiality of the Commission.
[70] It
follows that the appellant failed to establish any of the grounds on which it
had relied in its founding affidavit for the
relief claimed in paragraph 3 of
its notice of motion. During the course of argument in this Court, however, the
appellant sought
to amend prayer 3 of its notice of motion so as to claim a
declaration of rights in respect of specific aspects of the government’s
conduct which had not been raised pertinently in its founding affidavit or in
the notice of motion as originally framed.
Application to
amend
[71] In support of the amendment, the appellant relied on
evidence contained in an affidavit which had been filed in the High Court
proceedings by the former Chairperson of the Commission, and on the affidavit of
the third respondent which had been lodged in reply
to that affidavit. By way
of such amendment the appellant sought an order declaring that:
“3.1 The Minister of Home Affairs is not responsible and politically accountable for the Electoral Commission;
333.2 The Electoral Commission is not a line function activity of the Department of Home Affairs;
3.3 The Department of Home Affairs is not responsible for the conduct of elections;
3.4 It is not the Department of Home Affairs' responsibility to obtain a budget from the Electoral Commission, nor to evaluate its budget;
3.5 The Electoral Commission is entitled to its own vote in Appropriation Acts;
3.6 The Electoral Commission's Chief Electoral Officer is an accounting officer for purposes of the Exchequer Act, No 66 of 1975, and as such accountable to Parliament, not to the Director General of Home Affairs;
3.7 The determination of the Electoral Commission's budget must directly involve the Commission and it must be given adequate opportunity to stake its own fiscal claim;
3.8 The Electoral Commission cannot be included in the list of public entities for purposes of the Reporting by Public Entities Act, No 93 of 1992;
3.9 Treasury Instruction K5 cannot be made applicable to the Electoral Commission;
3.10 Insufficient funds have been budgeted for the Electoral Commission to execute its statutory duties, particularly in respect of voter education, the registration of voters, the compilation of the voters' roll and the holding of elections;
3.11 Past acts, conduct and omissions by the First to Third Respondents inconsistent with the orders made in terms of paragraphs 3.1 to 3.10 to [sic] have been unlawful and in breach of one or more or the following statutory provisions
(a) Sections 181(2), 181(3), 181(4) and 181(5) of the Constitution of the Republic of South Africa, No 108 of 1996;
(b) Sections 5(1)(a), 5(1)(b), 5(1)(c), 5(1)(d), 5(1)(e), 5(1)(j), 5(1)(k), 5(1), 5(2)(a), 12(2)(b) of the Electoral Commission Act, No 51 of 1996; and
(c) Sections 4, 5 and 14 of the Electoral Act, No 73 of 1998;”
[72] The application for amendment
was opposed by the first three respondents. In the proceedings before the High
Court the fourth
and fifth respondent had been represented by counsel. They
abided the decision of the Court, and did not seek any relief themselves.
Consistently with this, the fourth and fifth respondents did not appeal against
the decision of the High Court, and were not represented
by counsel in the
proceedings before this Court.
[73] In its argument on this aspect of
the case, the appellant placed considerable reliance on the affidavit of the
Chairperson of
the Commission, and that of the third respondent which had been
filed in direct response to the affidavit of the Commission’s
Chairperson.
In order to arrive at a decision on the application to amend, consideration will
have to be given to the averments made
in these affidavits. Before doing so,
however, it will be appropriate to set out the constitutional framework relevant
to the Commission
as an institution and its relationship with other organs of
state.
The constitutional framework
[74] The
Commission is one of the state institutions provided for in chapter 9 of the
Constitution and whose function under section
181(1) is to “strengthen
constitutional democracy in the Republic”. Under section 181(2) its
independence is entrenched
and as an institution, is made subject only to
“ the Constitution and the law”. For its part, it is required to be
impartial
and to “exercise [its] powers and perform [its] functions
without fear, favour or prejudice.” Section 181(3) prescribes
positive
obligations on other organs of state who must, “ . . . through legislative
and other measures, . . . assist and protect
[it] to ensure [its] independence,
impartiality, dignity and effectiveness . . .”
Section 181(4)
specifically prohibits any “person or organ of the state” from
interfering with its functioning. Section
181(5) provides that:
“These institutions are accountable to the National Assembly, and must
report on their activities and the performance of their
functions to the
Assembly at least once a year.”
[75] Although Constitutional
Principle (“CP”) VIII enacted in schedule 4 of the interim
Constitution provided amongst
other things for regular elections, there was no
CP which required the establishment of an independent body to administer them.
Nevertheless, in the First Certification
Judgment,[1] this Court commented as
follows on the independence of the Commission as provided for in the
constitutional text it was dealing with:
“ . . . NT 181(2) provides that the Electoral Commission shall be
independent and that its powers and functions shall be performed
impartially.
Presumably Parliament will in its wisdom ensure that the legislation
establishing the Electoral Commission guarantees
its manifest independence and
impartiality. Such legislation is, of course,
justiciable.”
[76] The Electoral Commission
Act[2] does guarantee the
Commission’s manifest independence. Section
3[3] mirrors the provisions of
section 181(2) of the Constitution and section
4[4] likewise corresponds in
material respects with section 181(1) of the Constitution. Section 190(1)(a)
and (b) of the Constitution
describe two of the main functions of the Commission
as being to manage the elections at all three legislative levels, that is,
national,
provincial and municipal and to ensure that those elections are free
and fair. Section 5(1) of the Commission Act details the functions
of the
Commission, the first being to “manage any election”. It is quite
apparent, however, when regard is had to the
other functions listed in section
5(1)(b) to (p)[5] that this role was
never intended to be a merely supervisory or monitoring one. The functions
relate to an active, involved and
detailed management obligation over a wide
terrain. The Commission must, among other things, “ensure that any
election is
free and fair”[6]
and “promote conditions conducive to free and fair
elections”.[7] In addition,
it must also “continuously review electoral legislation and proposed
electoral legislation, and . . . make recommendations
in connection
therewith”.[8] The Commission
also has the power to “appoint appropriate public administrations in any
sphere of government to conduct elections
when
necessary”.[9]
[77] The
Chief Electoral Officer appointed by the Commission under section 12(1) of the
Electoral Commission Act is designated by
section 12(2)(b) as “the
accounting officer of the Commission for the purposes of the Exchequer Act, 1975
(Act No. 66 of 1975)”.
It is this officer’s responsibility to
“cause the necessary accounting and other related records to be
kept.”
The conditions of service, remuneration and other benefits of all
the administrative staff of the Commission are to be prescribed
by the
Commission.1[0] The
Commission’s necessary expenditure is to be defrayed out of money
appropriated by Parliament for that purpose or received
by the Commission from
any other source1[1] and its records
are to be audited by the
Auditor-General.1[2] Comprehensive
reporting duties are imposed on the
Commission1[3] and in particular it
is required annually to submit to Parliament, amongst other things, an audited
statement on income and expenditure
and a report in regard to its functions,
activities and affairs in respect of such financial year.
[78] The
establishment of the Commission and the other institutions under Chapter 9 of
the Constitution are a new development on
the South African scene. They are a
product of the new constitutionalism and their advent inevitably has important
implications
for other organs of state who must understand and recognise their
respective roles in the new constitutional arrangement. The Constitution
places
a constitutional obligation on those organs of state to assist and protect the
Commission in order to ensure its independence,
impartiality, dignity and
effectiveness. If this means that old legislative and policy arrangements,
public administration practices
and budgetary conventions must be adjusted to be
brought in line with the new constitutional prescripts, so be it. It is
therefore
against this background that the conduct complained of has to be
examined.
[79] The complaints by the appellant bear on the relationship
between the Commission and the government, in particular the department.
The
issue is whether the conduct of the government has been demonstrated to have
impinged on the affairs of the Commission in a
manner which affected its
independence in the carrying out of its functions, or whether such conduct
constitutes a threat to do so.
The averments contained in the affidavit of the
Chairperson of the Commission formed the backbone of the appellant’s
submissions
in this respect. The affidavit sets out a number of concerns and
makes the point that there has not been universal and unstinting
support for the
Commission’s perception of its status, role and function. Indeed, the
correspondence reveals the differing
perceptions with regard to how the
Commission fits into the scheme of things. I turn now to deal with three broad
areas in which
the dispute manifested itself, that is, the different perceptions
with regard to the responsibility for the elections, the system
of financial
accounting and problems in relation to the engagement of the staff of the
Commission.
Responsibility for elections
[80] It is
clear that the department perceived itself as bearing responsibility and
political accountability for the Commission.
Nor was it alone in this
perception. The correspondence indicates that as early as 29 July 1997, the
Director-General of the Department
of State Expenditure wrote to Mr Mokoena, the
Director-General of the department, in these terms:
“As your Department is responsible for coordinating and managing the
election, it is accepted that transfer payments to the
new IEC and the control
thereof will be done through your Department in accordance with the Financial
Handbook.”
[81] When the Chairperson of the Commission became
aware of discussions and arrangements which pertained to and involved the
Commission
being made between the two Directors-General, behind the
Commission’s back as it were, he placed his objection on record in
a
letter to the Director-General of the department dated 7 October 1997, and posed
eight questions on the basis of which he sought
a meeting with the
Director-General. It will suffice to quote the first four questions
only:
“1. By virtue of what authority did you hold discussions with the Department of State Expenditure ‘regarding the responsibility of the Department of Home Affairs towards the Electoral Commission.’
2. What was seen to be the source, content and scope of such ‘responsibility’?
3. By virtue of what authority was the ‘agreement’ reached that the Commission ‘should be a line function of the Department of Home Affairs and what was that envisaged to entail?
4. Accepting, for the purpose of argument, that there is indeed a basis in
law for such conduct, why was the Commission not afforded
the elementary
courtesy of being consulted about the matters referred to in paragraphs 1 to 3
above?”
[82] The Director-General of the department conveyed
his attitude, with regard to the status of the Commission, succinctly in his
letter to the Chairperson of the Commission dated 8 October 1997 in which he
stated that:
“When the Electoral Commission Act, 1996, was passed through and
adopted by Parliament, the Minister of Home Affairs was in
no way relinquished
of his responsibility to be politically accountable for the new Commission, and
neither could the Department
escape the responsibility to have on its annual
budget the budget of the Commission as an item.”
This elicited a
swift response. On 9 October 1997 the Chairperson of the Commission
wrote:
“. . . the idea that you espouse that your Minister is
‘politically accountable for the new Commission’ is a relic
of a
regime we have emphatically abandoned in favour of an electoral system of
manifest independence, impartiality and legality,
envisaged in the
Constitutional Principles, enshrined in Chapter 9 of the Constitution and
fleshed out in Act 51 of 1996. The Minister
is the designated conduit for
communications between the EC and Cabinet or Parliament, but that is a far cry
from regarding him -
and therefore according to your approach, yourself - as
‘responsible’ or ‘politically accountable’ for
it.”
[83] What emerges clearly is that the department and the
Department of State Expenditure regarded themselves, at least at the level
of
the Directors-General, as competent and entitled to make decisions and
agreements involving the Commission. There is no doubt
that the decisions and
agreements might potentially hold serious financial implications for the
functioning of the Commission. The
agreement between the two Directors-General
was in fact acknowledged in a letter, dated 11 September 1997, by the Minister
of Finance
to the second respondent. The two departments, through their
respective Directors-General, clearly regarded the Commission as “a
line
function” of the department. The Director-General of the department in
fact informed Mr Du Plessis, the deputy Chief
Electoral Officer of the
Commission, by letter dated 7 October 1997, that the Department of State
Expenditure will only deal with
the budget of the Commission through the
department and not directly with the Commission. This, he pointed out, was in
keeping with
what he referred to as “the lines of communication.”
Equally clearly, the Chairperson of the Commission of the Commission
challenged
the perception held by the department at every turn.
[84] The conduct
of the Department of State Expenditure has been consistent with the view that
although Parliament specifically votes
a financial allocation to the Commission,
it is the accounting officer of the department, and not that of the Commission,
who must
do the evaluation of the budget and that the budgetary allocation to
the Commission must be routed through the department and not
directly to the
Commission.
[85] The following occurrence illustrates the different
perceptions of precisely what the independence of the Commission entails.
At
the time when the Commission was in the process of asserting its financial and
administrative independence, the department and
the Department of Finance
submitted to Cabinet a proposed amendment to the Electoral Commission Act. The
effect of the amendment
was to curtail the Commission’s financial,
administrative and political independence. Cabinet approved the proposed
amendment
and it was placed on the parliamentary order paper. Up to that stage,
and notwithstanding the fact that the proposed change would
severely affect the
powers, functions and duties of the Commission, the two departments had not seen
fit to consult with or even
to inform the Commission about the proposed
amendment. In the light of the fact that the provisions of section 5(1)(j) of
the Electoral
Commission Act entrust the Commission with the responsibility to
“continuously review electoral legislation and proposed electoral
legislation, and to make recommendations in connection therewith”, this
conduct by the two departments constitutes a serious
slight to the dignity and
integrity of the Commission.
The system of financial
accounting
[86] Prayers 3.6, 3.8 and 3.9 all relate to the dispute
about the nature of expenditure controls appropriate to the Commission. The
Chairperson of the Commission makes it clear in his affidavit that the
Commission’s attitude is that it has its own accounting
officer, that it
is accountable to Parliament for its expenditure and that the accounts of the
Commission are subject to audit by
the Auditor-General. The government’s
view, expressed through the third respondent, is that the Commission’s
attitude
is wrong in that it is not consistent with the degree of expenditure
controls perceived to be necessary. Third respondent is of
the view that the
funds allocated by Parliament to the Commission fell within the budget of the
department; the Commission must therefore
account to the department in terms of
Treasury Instruction K5, issued under section 39 of the Exchequer Act, 66 of
1975.
[87] Treasury Instruction K5 provides:
“K5 Transfer Payments
K5.1 The rendering of financial assistance (including payments of grants-in-aid and contributions) to institutions, boards, committees or other public bodies or persons shall be subject to and conditional upon such beneficiaries submitting, within six months after closing of their respective financial years, the following to the accounting officer of the responsible State department:
(a) The financial statements referred to in section 6(2);
(b) a director’s report referred to in section 7; and
(c) an auditor’s report contemplated in section 12,
laid down by the Reporting by Public Entities Act, 1992 (Act No. 93 of 1992) and any other relative information or statements which the accounting officer may require, according to the circumstances.
K5.2 An accounting officer may stipulate conditions which he regards as desirable in respect of any payment to be made but this should include a confirmation by the chief executive officer of the relevant beneficiary that internal auditing is applied, mutatis mutandis, within such institution, board, committee or body as contemplated in section 8 of the Reporting by Public Entities Act, 1992 (Act No. 93 of 1992).
K5.3 Only the Treasury may grant approval for aforementioned documentation not to be submitted or an internal audit not to be conducted as contemplated in Section 8 of the said Act.
K5.4 Prior to rendering financial assistance during any year, accounting officers should satisfy themselves by means of evaluating aforementioned documentation and information that:
(a) The conditions in respect of the previous year’s assistance have been complied with by the beneficiary institutions, boards, committees, bodies or persons;
(b) the necessity for continued assistance still exists;
(c) the financial aid is still meritorious; and
(d) the set objectives were attained
and furnish a certificate to
this effect, to be submitted to the Treasury.”
[88] In his
affidavit, third respondent acknowledged the need for the Commission to be
independent but stated:
“it escapes my understanding to see how this process would exclude
fiscal constraints, including the application of Treasury
Instruction K5, or,
for that matter, the accounting responsibilities of the Director General
responsible for the vote passed under
that Department.”
It is clear
that the language of Instruction K5 is inappropriate when applied to an
institution such as the Commission. It speaks
of an “accounting officer
of the responsible State department”. The understanding of the third
respondent seems to be
that the department concerned must be the Department of
Home Affairs. On the face of it, this would appear to be in conflict with
the
Electoral Commission Act which designates the Chief Electoral Officer of the
Commission as its accounting officer for the purposes
of the Exchequer
Act.1[4] The Commission is
furthermore not a “department” as the word is used in Instruction
K5.
[89] The application of Instruction K5, unadapted to a new
institution such as the Commission, has the potential to undermine the
independence of the Commission. While it is reasonable and necessary to require
that the Commission should have an internal audit
procedure and that it should
be required to produce audited reports and financial statements at the end of
the financial year, the
essence of the problem is that Instruction K5 has been
designed to cater for a situation in which a department makes funds available
from its own budget to a public entity for the performance of certain functions.
The arrangement is fundamentally inappropriate when
applied to independent
institutions such as the Commission. The accounting officer of the department
is empowered and required to
do two things which are by their nature invasive of
the independence of the public entity. Firstly, the accounting officer can
stipulate
further conditions considered desirable and which must be fulfilled
before any further money is paid to the public entity. Secondly,
he or she is
obliged to perform an evaluative role in relation to the public entity. The
accounting officer can pay money over to
the entity only if satisfied that its
objectives have been achieved and that any relevant conditions which have been
placed on the
financial assistance have been complied with. If Instruction K5
were validly to be applied to the Commission, the accounting officer
of the
department could refuse to give the Commission money if, in his or her opinion,
the work of the Commission did not contribute
to a free and fair election or had
failed to comply with a condition imposed upon it by the accounting officer. If
this were so,
the independence of the Commission would be clearly undermined.
[90] In any event, the Commission refused to comply with the provisions
of Instruction K5. Third respondent was, however, able to
facilitate the
payment of further money to the Commission despite the latter’s refusal to
comply with this instruction. Had
third respondent not resolved the matter, it
is difficult to see how a refusal to fund the Commission, because of its refusal
to
comply with Instruction K5, could be constitutionally justified. However,
the fact that the money was made available does mean that
the independence of
the Commission remained intact.
[91] There has in the meantime
been some effort to resolve the difficulty. The suggestion that the Commission
should become a department
in terms of the Public Service Act 103 of 1994 was
made and found to be unacceptable. The latest effort by the Department of State
Expenditure appears to be the suggestion that the Commission be listed as a
public entity in terms of the Reporting by Public Entities
Act 93 of 1992, but
this suggestion appears, at first blush, to reintroduce the difficulties
attendant upon Instruction K5. It is
however clear from the affidavit of the
Chairperson of the Commission that, as at about the end of January 1999, there
was something
of an impasse between the Commission and the third respondent in
this regard.
Staffing of the Commission
[92] Another
problem relates to the staffing of the Commission. Sections 12(4) and (5) of
the Electoral Commission Act provide:
“(4) The chief electoral officer shall in consultation with the Commission appoint such officers and employees of the Commission as he or she may consider necessary to enable the Commission to exercise its powers and to perform its duties and functions effectively.
(5) The conditions of service, remuneration, allowances, subsidies and other benefits of the chief electoral officer, an acting chief electoral officer and the other administrative staff of the Commission shall be prescribed by the Commission.”
Section 23 of the Act provides that the
Commission may make those regulations necessary to achieve the objects of the
Act. However,
where the regulations will affect state expenditure, section
23(3) provides that the regulations must be made with the concurrence
of the
Minister of Finance.
[93] Once the members of the Commission were
appointed in July 1997, immediate consideration was given to the question of
employing
staff for the Commission. Draft regulations in terms of section 23,
to regulate the terms and conditions of staff were drawn up
and a selection
process to identify a suitable candidate for Chief Electoral Officer was
undertaken. Thereafter, on 22 October 1997,
the Chairperson of the Commission
wrote to the third respondent annexing the relevant documentation and seeking
approval of the draft
regulations drawn up by the Commission in terms of section
23. In his letter he stated:
“I have to emphasise to you the urgency of this matter and beg your
co-operation towards achieving finalisation with the minimum
of
delay.”
[94] By 8 January 1998, despite meetings held between the
Commission and the third respondent, no written response had been received
by
the Commission from the third respondent. Accordingly, the Chairperson of the
Commission wrote to him once again, in the following
terms:
“In the course of our two subsequent meetings, I attempted to impress
upon you the need to get the top structure of the Commission
in place with the
minimum of delay and urged you to give consideration to the draft regulations.
I also tried to convince you that
delay would not only jeopardise the prospects
of successful elections being held in 1999 but would increase their
cost.”
Still no reply was received from the third respondent.
Finally the Commission went ahead and published the regulations without the
written consent of the Minister and continued with the appointment of its staff.
[95] In his affidavit filed in this matter, the third respondent gives
no explanation for his failure to respond to the letters of
the Chairperson of
the Commission, or why he failed to comply with the obligation imposed upon him
by section 23 of the Electoral
Commission Act. There can be no doubt that in
this respect the failure of the third respondent did hamper the efficient
functioning
of the Commission in breach of section 181(3) of the Constitution.
The fourth respondent does state in his affidavit, that this
conduct did not
materially impair the independence of the Commission. Nevertheless, the third
respondent did not comply with the
obligations imposed upon him by the
Constitution in this regard. A failure to comply with those obligations may
seriously impair
the functioning and effectiveness of those state institutions
supporting constitutional democracy and cannot be condoned.
[96] In the
light of the discussion in the preceding paragraphs on the three areas in which
the dispute manifested itself, the question
must be asked whether the existing
legislative framework properly provides for the Commission as well as other
independent institutions
as envisaged in chapter 9 of the Constitution.
Attempts to resolve the problem appear to have been in the context only of the
existing
framework, which has apparently not yet come to terms with the new
constitutional imperatives. As between the Commission and the
relevant organs
of government, there has clearly been much discussion, debate and negotiation
on this issue. What is clear is that
if existing mechanisms are not
appropriate, new ones must be fashioned in a manner which does not impinge the
independence of the
Commission. No member of the executive or administration
should have the power to stop transfers of money to any independent
constitutional
body without the existence of appropriate safeguards for the
independence of that institution.
[97] It is to be expected, as between
the government and/or Parliament and any independent constitutional institution,
that there
will be areas of tension concerning the reasonableness of any amount
of money required by a particular institution to enable it to
fulfil its
functions effectively. It is however incumbent upon the parties to make every
effort to resolve that tension and to reach
agreement by negotiation in good
faith. This would no doubt entail considerable meaningful discussion, exchange
of relevant information,
a genuine attempt by each party to understand the needs
and constraints of the other and the mutual desire to reach a reasonable
conclusion. The Commission itself would, in any event, approach a court for
relief if it was considered that such a course was in
its best interest. It may
be that the absence of sufficient evidence is a direct result of the fact that
the Commission has not
applied for a direct order. It may finally be mentioned
that the paucity of evidence before this Court is such that it is not even
possible to determine the standard by which a decision as to whether the
Commission has been sufficiently funded must be made.
[98] In dealing
with the independence of the Commission, it is necessary to make a distinction
between two factors, both of which,
in my view, are relevant to
“independence”. The first is “financial independence”.
This implies the ability
to have access to funds reasonably required to enable
the Commission to discharge the functions it is obliged to perform under the
Constitution and the Electoral Commission Act. This does not mean that it can
set its own budget. Parliament does that. What it
does mean, however, is that
Parliament must consider what is reasonably required by the Commission and deal
with requests for funding
rationally, in the light of other national interests.
It is for Parliament, and not the executive arm of government, to provide
for
funding reasonably sufficient to enable the Commission to carry out its
constitutional mandate. The Commission must accordingly
be afforded an adequate
opportunity to defend its budgetary requirements before Parliament or its
relevant committees.
[99] The second factor, “administrative
independence”, implies that there will be control over those matters
directly
connected with the functions which the Commission has to perform under
the Constitution and the Act. The executive must provide
the assistance that
the Commission requires “to ensure [its] independence, impartiality,
dignity and effectiveness”.
The department cannot tell the Commission how
to conduct registration, whom to employ, and so on; but if the Commission asks
the
government for assistance to provide personnel to take part in the
registration process, government must provide such assistance
if it is able to
do so. If not, the Commission must be put in funds to enable it to do what is
necessary.
[100] It follows from what I have said that the department,
the Department of State Expenditure and the Minister of Finance have
failed to
appreciate the true import of the requirements of the Constitution and the
Electoral Commission Act which provide that
the Commission be independent and
subject only to the Constitution and the law, that it has the responsibility for
managing elections,
that it is accountable to the National Assembly and not the
executive, and that all other organs of state must assist and protect
it to
ensure its independence and effectiveness.
[101] This, however, was not
the case made by the appellant when it launched its application. The appellant
has failed to establish
the allegations on which the application was founded.
The main issue concerning the constitutionality of the provisions of the
Electoral
Act fails for the reasons given by Yacoob J. The other allegations
that the Commission has been unable to perform its constitutional
and statutory
duties, and that its functions have been usurped by the government, have also
not been established.
[102] The question which has to be decided is
whether in such circumstances the application for amendment should be granted in
order
to provide a foundation for the declaration which the appellant now asks
this Court to make.
[103] Counsel for the appellant contends that
section 172(1)(a) of the Constitution requires this Court to make a declaration
in
the terms set out in the notice of amendment, and that the application for
the amendment of the notice of motion should accordingly
be granted. Section
172(1)(a) provides:
“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 . .
.
”
The submission made by counsel for the appellant was that the
conduct of the department, the Department of State Expenditure and the
third
respondent as reflected in the affidavits was inconsistent with the
constitutional obligation to “assist and protect
[the Commission and]
ensure [its] independence, impartiality, dignity and
effectiveness”.1[5]
[104] I
will assume that if the Commission had sought a declaration in the terms set out
in the notice of amendment a court would
have been obliged by the provisions of
section 172(1)(a) to grant it such relief. But the Commission has not sought
such relief.
It has made it clear that the conduct of the department,
Department of State Expenditure and the third respondent did not, in the
result,
infringe its independence. Rather than resorting to litigation, the Commission
resisted the conduct to which it took objection,
and asserted its independence
and impartiality. It sought no relief in the proceedings before the High Court,
and did not appeal
against the decision of that Court dismissing the claim made
in paragraph 3 of the notice of motion.
[105] It is not necessary in the
present case to decide whether section 172(1)(a) deprives a court of the
discretion it ordinarily
has to decide whether a case is a proper one in which
to make a declaration of rights.1[6]
Whatever the position may be where such relief is claimed, I am satisfied that
the section should not be construed as requiring a
court to make an order that
conduct referred to in proceedings before it is inconsistent with the
Constitution, where such relief
is not claimed.
[106] In the present
case no such claim is made by the Commission. The appellant’s claim in so
far as it is based on the Bill
of Rights has failed. The claim for a
declaration of rights which it now seeks by virtue of the notice of amendment,
is based on
sections 181 and 190 of the Constitution and the provisions of the
Electoral Commission Act. The extended rights of standing under
section 38 of
the Constitution1[7] do not apply to
a claim
[106] for such relief. Whilst the court should be willing in a proper case to relax the ordinary rules of standing when dealing with constitutional matters, this is not a case which calls for such relaxation. The independence of the Commission has not, in the result, been infringed and there is no reason to believe that the Commission will fail to take appropriate action to protect its interests, should it be necessary for it to do so. It is not ignorant of its rights nor is it unable to assert them.
[107] The Commission is well able
to protect its own interests and to determine the best way of doing so. It has
chosen to deal
with the relevant issues by asserting its independence and
entering into negotiations with the ministries concerned rather than resorting
to litigation. The issues raised in the notice of amendment relate to past
conduct which in the result did not impair the independence
of the Commission.
In the circumstances this is not a case in which the appellant should be allowed
to amend its notice of motion
on appeal to obtain relief which the Commission
has deliberately chosen not to claim. The application to amend the notice of
motion
must accordingly be refused.
Chaskalson P, Ackermann J,
Goldstone J, Madala J, Mokgoro J, Sachs J and Yacoob J concur in the judgment of
Langa DP.
O’REGAN J:
[108] I cannot agree
with Yacoob J that in enacting section 1 (xii) read with sections 6(2) and 38(2)
of the Electoral Act, 73 of
1998 (the Electoral Act) at the time and in the
circumstances that it did, Parliament acted constitutionally. To that extent,
therefore,
I dissent from both his judgment and the order the Court makes.
Legislative framework
[109] The dispute between the
parties arose from the decision by Parliament to provide that only certain types
of identity documents
would be adequate for registration and voting in the
forthcoming election. Section 1(xii) of the Electoral Act defines
“identity
document” as:
“an identity document issued after 1 July 1986, in terms of section 8
of the Identification Act, 1986 (Act No. 72 of 1986),
or a temporary identity
certificate issued in terms of the Identification Act, 1997 (Act No. 68 of
1997);”
Section 6 provides that, in order to register, a South
African citizen must be in possession either of an identity document (as defined
in section 1(xii)) or a document issued in terms of section 6(2) which provides
that:
“For the purposes of the general registration of voters contemplated in
section 14, an identity document includes a temporary
certificate in a form
which corresponds materially with a form prescribed by the Minister of Home
Affairs by notice in the Government Gazette and issued by the
Director-General of Home Affairs to a South African citizen from particulars
contained in the population register
and who has applied for an identity
document.”
I shall refer to documents issued in terms of section
6(2) as “temporary registration
certificates”.[1] Temporary
registration certificates may be used for registration but not for voting as
section 38(2) of the Electoral Act makes
plain.
“A voter is entitled to vote at a voting station -
(a) on production of that voter’s identity document to the presiding officer or a voting officer at the voting station; and
(b) if that voter’s name is in the certified segment of the voters’ roll for the voting district concerned.”
[110] The
cumulative effect of these provisions is the following. In order to register
as a voter on the national common voters’
roll, three documents suffice: a
temporary registration certificate, an identity document issued in terms of
section 8 of the Identification
Act, 72 of 1986 (the 1986 Identification Act)
and a temporary identification certificate issued in terms of section 16 of the
Identification
Act, 68 of 1997 (the 1997 Identification Act). In order to vote,
however, only two documents will be adequate, an identity document
issued in
terms of section 8 of the 1986 Identification Act and a temporary identification
certificate issued in terms section 16
of the 1997 Identification
Act.
[111] The 1986 Identification Act was repealed by the 1997
Identification Act which came into force on 1 August 1998. The 1997 Act
contemplates a completely new system of identification based on identity cards.
As this system has not yet been introduced by government,
a transitional
provision in the 1997 Identification Act empowers the Director-General of Home
Affairs (the Director-General) to continue
issuing identity documents in
accordance with the 1986 Act until a date to be determined by the
Minister.[2] There can be no doubt,
however, in the light of the enactment of the 1997 legislation and the repeal of
the 1986 Act, that government
intends replacing all identity documents currently
held by South Africans with an identity card system.
[112] Until that
date, however, the Director-General may continue issuing identity documents in
accordance with the 1986 Act. Section
8 of that Act governs the procedure for
issuing identity documents. A person over the age of 16 years must apply for an
identity
document in the manner
prescribed.[3] Such an identity
document contains a photograph of the holder, as well as his or her identity
number, in numerical and bar-coded
form, full names, place and date of birth, as
well as stating whether or not the holder is a South African citizen. The
documents
issued in terms of section 8 are what was referred to during argument,
as the green bar-coded identification document (bar-coded
IDs).
[113] All new identity documents issued at present are therefore
bar-coded IDs. When people, whose particulars are included in the
population
register, apply for a bar-coded ID, they may also apply for a temporary identity
certificate. During argument, we were
informed that a person’s particulars
will only have been included in the population register if notice of birth has
been given
or a previous application has been made for an identity document. It
follows that people applying for an identity document for the
first time will
not immediately be able to get a temporary identity certificate if their birth
was never registered as they will
not be on the population register.
[114] Temporary identity certificates may be issued in terms of section
16 of the 1997 Identification
Act.[4] Section 1(xii) of the
Electoral Act provides that temporary identity certificates issued under the
1997 Identification Act are adequate
for registration and voting. Doubt was
aired during argument as to whether it was competent for the Department of Home
Affairs to
issue temporary identity certificates in terms of the 1997
Identification Act at this stage. In my view, there is no doubt that
the
department is competent to do so. The manner and form for applying for
temporary identity certificates in terms of that Act
have been prescribed and
published.[5] In terms of those
regulations, a temporary identity certificate will not contain a bar-code even
though it will contain the names
and identity number of its
holder.[6] Even though section 16
provides that temporary identity certificates may only be issued when a person
has applied for an “identity
card” (the new identification system
established by the 1997 Identification Act which is not yet in operation), the
definition
of “identity card” in the 1997 Identification Act is
sufficiently wide to include other identity
documents.[7] Accordingly, an
application for an identity document under the 1986 Identification Act would
meet the requirement of an application
for an identity card contained in section
16. A more difficult question, not raised in argument in this case and which I
therefore
do not intend to answer, was the question of whether documents may
continue to be issued in terms of section 9 of the 1986 Identification
Act,[8] and if they may be, whether
such documents would be documents contemplated by section 1(xii) of the
Electoral Act and adequate for
registration and voting.
[115] Section
8(3) of the 1986 Identification Act expressly preserved the validity of
identification documents issued in terms of
earlier
legislation.[9] Similarly, section
25(2) of the 1997 Identification Act preserved the validity of earlier
documents.1[0] At present,
therefore, identity documents issued before 1986 in terms of earlier legislation
referred to in the 1986 Act are valid
identity documents and there is no
obligation upon their holders to apply for new documents. However, the 1997
Identification Act
does contemplate that the Minister of Home Affairs may impose
such an obligation in due course, once the identity card system comes
into
operation. For the present, however, identity documents issued in terms of
earlier legislation continue to be valid for purposes
other than registration
and voting. The crisp question raised in this case is whether, in effectively
declaring them to be invalid
for the purposes of voting, but leaving them valid
for other purposes, Parliament acted constitutionally. In order to answer that
question, it is necessary to consider the relevant constitutional
provisions.
Constitutional framework
[116] A reading of
our Constitution leaves one with no doubt that it entrenches beyond doubt the
right to vote and the right to free
and fair elections as rights central to the
maintenance of a democratic order. Section 19(2) and (3) provide that:
“(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.
(3) 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; and
(b) to stand for public office and, if elected, to hold office.”
The paramount importance of these rights,
however, is marked by the inclusion of the following within section 1 of the
Constitution:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values:
. . . .
(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.”
Section 1 is subject to
special and rigorous amendment
procedures.1[1]
[117] That
our Constitution should emphasise the value of the right to vote and the right
to free and fair elections based on a national
common voters’ roll is no
surprise.1[2] It was only in 1994,
after a long struggle for democracy, that the right to vote was extended to all
South Africans regardless of
race. The achievement of a democracy and of the
right to vote is therefore fresh in our memories. Only one democratic election
for national and provincial government has ever been held in South Africa. The
second fast approaches.
[118] The right to vote and the right to free
and fair elections based on a national common voters’ roll cannot be
observed
unless the government, both the legislature and the executive, and, of
course, the Electoral Commission (the
Commission),1[3] take the necessary
positive steps to ensure that a voters’ roll is compiled and the election
is held. Unlike some of the other
rights in chapter 2 of the Constitution, the
primary obligation which section 19(2) and (3) impose upon government is not a
negative
one, requiring government to refrain from conduct which could cause an
infringement of the right, but a positive one, requiring government
to take
positive steps to ensure that the right is fulfilled.
[119] The
importance of the obligation to enact legislation and take steps to further the
right to vote in free and fair elections
which is imposed by section 19(2) and
(3) upon the legislature, the executive and the Commission, should not be
understated. South
African democracy is still in its infancy and requires
nurturing and care to ensure it becomes firmly established. The Preamble
to the
Constitution recognises that we are only beginning the task of building a
democratic society when it records the following:
“We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to -
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.”
[120] The
obligation to afford citizens the right to vote in regular, free and fair
elections is important not only because of the
relative youth of our
constitutional democracy but also because of the emphatic denial of democracy in
the past. Many of the injustices
of the past flowed directly from the denial of
the right to vote on the basis of race to the majority of South Africans. The
denial
of the right to vote entrenched political power in the hands of white
South Africans. That power was used systematically to further
the interests of
white South Africans and to disadvantage black South Africans. As South
Africans, therefore, we should be aware
of the power of the franchise, and the
importance of its universality.
[121] In exercising the right to vote,
each citizen affirms and invigorates our constitutional democracy. To build the
resilient
democracy envisaged by the Constitution, we need to establish a
culture of participation in the political process, as well as tolerance
of
different political views and a recognition that democracy can be a unifying
force even where political goals may be diverse.
The responsibility for
building such a democracy is placed, in part, on the legislature, executive and
the Commission. One of the
important ways that those institutions meet that
responsibility is in providing for and regulating regular, free and fair
elections.
The responsibility, however, is shared too by other organs of state,
as well as political parties and, of course, citizens.
[122] The right
to vote is more than a symbol of our common citizenship, it is also an
instrument for determining who should exercise
political power in our society.
It is in this sense that the United States Supreme Court held that the right to
vote is “preservative
of all
rights.”1[4][122] Its role
in determining who should exercise political power, makes the right to vote
worthy of particular scrutiny by a court
to ensure that fair participation in
the political process is afforded. I cannot agree with Yacoob J therefore when
he states (at
para 24 of his judgment) that the principle of separation of
powers means that it is inappropriate for a court to determine whether
a
legislature has acted reasonably in relation to the regulation of elections.
Instead, Yacoob J suggests that a court should determine
whether such regulation
is rationally connected to a legitimate government
purpose.1[5] Such an approach is
appropriate in relation to determining whether legislation giving rise to
differential treatment is
constitution