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CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 03/04

MINISTER OF HOME AFFAIRS ......................................................... Applicant

versus

NATIONAL INSTITUTE FOR CRIME PREVENTION

AND THE RE-INTEGRATION OF OFFENDERS (NICRO) .......... First Respondent

ELISE ERASMUS ......................................................... Second Respondent

ROLAND SCHWAGERL ......................................................... Third Respondent

THE ELECTORAL COMMISSION ..........................................Fourth Respondent

MINISTER OF CORRECTIONAL SERVICES ........................ Fifth Respondent

Heard on : 25 February 2004

Decided on : 3 March 2004

JUDGMENT

CHASKALSON CJ:

1. This application is concerned with the right to vote enshrined in section 19(3) of the Constitution. We have been called upon to deal with it as a matter of urgency on the eve of the elections which are to be held on 14 April 2004, some seven weeks after argument was addressed to us.

2. The dispute arises out of the Electoral Laws Amendment Act¹ (the Amendment Act) which amends the Electoral Act.² The Amendment Act was promulgated on 6 November 2003 and brought into force on 17 December 2003.³ It introduced provisions into the Electoral Act which in effect deprive convicted prisoners serving sentences of imprisonment without the option of a fine of the right to participate in elections during the period of their imprisonment. The crisp point in this application is the constitutionality of these provisions.

3. The proceedings have not taken a normal course. Litigation commenced in the Cape High Court (the High Court) on 23 December 2003, six days after the Amendment Act was brought into force. An urgent application was lodged on that date in the High Court by the National Institute for Crime Prevention and the Re-integration of Offenders (Nicro) and two convicted prisoners serving sentences of imprisonment, for an order declaring the provisions that deprive serving prisoners of the right to participate in the upcoming elections, to be inconsistent with the Constitution and invalid.

4. The Minister of Home Affairs (the Minster) only lodged an answering affidavit in the High Court on 29 January 2004, and on the following day he applied urgently to this Court, through the State Attorney, for an order allowing the dispute in the matter pending in the High Court to be brought directly to this Court for determination. Nicro and the two convicted prisoners supported the application. There is no satisfactory explanation why this urgent matter was allowed to stagnate in the High Court for over a month. It should have been dealt with promptly. If this had happened a decision could have been given early in January and if the matter had then to come to this Court, it could have been disposed of without the extraordinary difficulties that have arisen as a direct consequence of this delay.

5. To the knowledge of the parties, the Constitutional Court was not in session on 30 January 2004. Following the lodging of the application for direct access the Registrar, on instructions of the Chief Justice, wrote to the State Attorney on 3 February 2004, as follows:

“1. The delay in this matter is due to the delay on the part of the respondents in filing their answering affidavits. Some six weeks have passed since the application was served on the respondents and second respondent’s affidavit has still not yet been lodged. If that affidavit is lodged expeditiously, and the applicant’s replying affidavit (if any) is also lodged expeditiously, it should be possible for the matter to be disposed of in the Cape High Court during February. If either party wishes to take the matter further after that, the same papers could be used, and a date allocated within a week of the arguments being lodged in the Constitutional Court.

2. The Constitutional Court is in the process of moving from its existing premises to new premises on Constitution Hill. That move will only be completed on 13 February.

3. The papers presently before us were only completed yesterday when the affidavits in the Cape High Court were lodged with the registrar. Arrangements have been made for the papers to be sent to those judges who do not have access to their chambers in Johannesburg.

4. As the parties wish the case to be disposed of urgently they should make arrangements now for the preparation and exchange of written arguments which will be necessary for an expeditious hearing in the High Court. That would be the desirable course to follow.

5. An application for direct access can only be granted on request by the Court itself. If there are differences between the judges, those will have to be resolved before a decision can be taken. The Court is reluctant to deal with matters without a judgment of another court, and you should not assume that direct access will be granted.

6. No communication has yet been received from the attorneys for the respondents with regard to the application for direct access. The documents that have been lodged will be referred to the judges of the Constitutional Court for their consideration. It is essential, however, that the communication referred to in paragraph 16 of the founding affidavit be communicated to the registrar without any further delay.”

6. The legal representatives of Nicro and the two prisoners took the view that it was desirable for the matter to be dealt with by the High Court and applied for a hearing date there asking that the matter be dealt with urgently. This was the correct course to take.⁴ The matter should, however, have been dealt with early in January and not delayed for over a month. The Minister opposed the application and asked the High Court to stay the proceedings before it until his application for direct access to this Court had been determined.

7. This resulted in a further delay. The judge who dealt with the application in the High Court concluded that a decision by her on the merits of the application would undermine the application for direct access. She accordingly reserved judgment on the merits of the dispute and postponed the application pending a decision by this Court whether to grant direct access. This proved to be doubly unfortunate. First, it delayed the process in the High Court. Secondly, owing to an unexpected sad death in her family, she would not have been in a position to deliver the reserved judgment on the merits promptly if this Court had refused direct access. This Court, which convened on 16 February 2004 for the current term, refused the application for direct access. However, in the light of the facts set out above it was obliged to recall its order, grant the application, and deal with the matter urgently as a court of first and final instance.

8. We heard the application on 25 February 2004. It raises important issues on which I would have preferred to have had more time to formulate a judgment. Unfortunately that is not possible because further delay would frustrate any relief that this Court might grant to the applicants.

9. For the purposes of this judgment, the parties will be referred to as they were in the High Court application. Thus Nicro and the two prisoners serving sentences without the option of a fine who brought the initial application in the High Court will be cited as the applicants, and the Minister of Home Affairs, the Electoral Commission (the Commission) and the Minister of Correctional Services will be cited as the respondents.

Background to the impugned provisions

10. Section 1 of the Electoral Act provides that a “voter” is a South African citizen who is 18 years old or older and whose name appears on the voters’ roll.⁵ Section 1 of that Act, read with section 5, defines “voters’ roll” as the national common voters’ roll compiled and maintained by the chief electoral officer. It appears from section 8 of the Act that a person’s name will only be entered on the voters’ roll once that person has registered as a voter.⁶

11. Prior to its amendment, the Electoral Act contained no provisions dealing specifically with prisoners serving sentences of imprisonment. If this had remained so, in terms of the decision of this Court in August and Another v Electoral Commission and Others,⁷ the Commission would have been obliged to allow prisoners to register as voters and to vote in the upcoming elections and would also have been obliged to provide the necessary facilities to enable this to be done.

12. The changes introduced into the Electoral Act by the Amendment Act include sections 8(2)(f), and 24B(1) and (2). They read as follows:

“8(2) The chief electoral officer may not register a person as a voter if that person — . . .

(f) is serving a sentence of imprisonment without the option of a fine.”

“24B(1) In an election for the National Assembly or a provincial legislature, a person who on election day is in prison and not serving a sentence of imprisonment without the option of a fine and whose name appears on the voters’ roll for another voting district, is deemed for that election day to have been registered by his or her name having been entered on the voters’ roll for the voting district in which he or she is in prison.”

“24B(2) A person who is in prison on election day may only vote if he or she is not serving a sentence of imprisonment without the option of a fine.”

13. In effect, these changes disenfranchised prisoners serving sentences of imprisonment without the option of a fine by precluding them from registering as voters and voting whilst in prison. Unsentenced prisoners, and prisoners incarcerated because of their failure to pay fines imposed on them, retained the right to register and vote.

14. Special provision was made by the Amendment Act to regulate the voting of those prisoners who retained the right to vote. Under section 8, a person’s name may only be entered on the voters’ roll for the voting district in which that person is ordinarily resident. Where a prisoner is “ordinarily resident” is regulated by two deeming provisions. For registration purposes, a prisoner is regarded to be “ordinarily resident” in the voting district where that person normally lived when not imprisoned.⁸ For voting purposes, section 24B(1) stipulates that a prisoner who is not serving a sentence of imprisonment without the option of a fine and whose name appears on the voters’ roll for another district will be deemed for that election day to be registered for the voting district in which the prison is located.⁹

15. Section 64 of the Electoral Act empowers the Commission to establish mobile voting stations in a voting district.¹⁰ In terms of section 64(1A)(b), introduced by the Amendment Act, such mobile voting stations may be employed where necessary for use in a prison.¹¹

16. The applicants who challenged the validity of the changes made in respect of the voting rights of prisoners sought the following relief in the notice of motion lodged with the urgent application. First, an order declaring section 8(2)(f), the phrase “and not serving a sentence of imprisonment without the option of a fine” in section 24B(1), and section 24B(2) of the Electoral Act to be unconstitutional and invalid; and secondly, an order directing the second and third respondents to ensure that all prisoners who are or will be entitled, in terms of the Electoral Act, to vote in the forthcoming elections, are afforded a reasonable opportunity to register as voters for and to vote in the forthcoming elections. If granted, this relief would remove the provisions that disenfranchised them.

17. I turn now to deal with the arguments advanced on behalf of the applicants in support of their claims.

Sections 1 and 3 of the Constitution

18. In the founding affidavit the applicants rely in the first instance on sections 1(d) and 3(2) of the Constitution which form part of the first chapter that contains the founding provisions of the Constitution. They contend that sections 8(2)(f) and 24B(1) and (2) of the Electoral Act, which disenfranchise them, are inconsistent with these provisions which are absolute and not subject to limitation in terms of the Constitution.¹²

19. There is no substance in this contention and counsel for the applicants correctly did not seek to support it. Section 1 deals with the values of the Constitution and section 3 with the rights of citizenship. Neither of these sections requires voting rights to be absolute and immune from limitation.

20. Section 1 reads as follows:

“The Republic of South Africa is one, sovereign, democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b) Non-racialism and non-sexism.

(c) Supremacy of the constitution and the rule of law.

(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

21. The values enunciated in section 1 of the Constitution are of fundamental importance. They inform and give substance to all the provisions of the Constitution. They do not, however, give rise to discrete and enforceable rights in themselves. This is clear not only from the language of section 1 itself, but also from the way the Constitution is structured and in particular the provisions of Chapter 2 which contains the Bill of Rights.

22. The first section of the Bill of Rights (which is section 7 of the Constitution), provides:

“(1) The Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.”

23. The rights entrenched in the Bill of Rights include equality, dignity, and various other human rights and freedoms. These rights give effect to the founding values and must be construed consistently with them. They are, however, not absolute and in principle are subject to limitation in terms of section 36(1) of the Constitution which provides:

“(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including –

1. the nature of the right;

2. the importance of the purpose of the legislation;

3. the nature and extent of the limitation;

4. the relation between the limitation and its purpose; and

5. less restrictive means to achieve that purpose.”

24. Section 3 of the Constitution makes provision for a common and equal citizenship. Section 3 provides:

“(1) There is a common South African citizenship

(2) All citizens are –

(a) equally entitled to the rights, privileges and benefits of citizenship; and

(b) equally subject to the duties and responsibilities of citizenship.

(3) National legislation must provide for the acquisition, loss and restoration of citizenship.”

This section includes both an entitlement to the rights that citizens have and an obligation to comply with the duties and responsibilities of citizenship. The rights include the right to vote in elections. The duties and responsibilities include at least an obligation to respect the rights of others and to comply with the law.

25. To sum up, the right to vote is vested in all citizens. It is informed by the foundational values in section 1 of the Constitution and in particular section 1(d). It is, however, not an absolute right. It is subject to limitation in terms of section 36. Citizens who commit crimes break the law in breach of their constitutional duty not to do so. It is within this framework that the challenge to the constitutionality of sections 8(2)(f) and 24B(1) and (2) of the Electoral Act must be determined.

26. In their founding affidavit, the applicants contend that various rights that prisoners have were infringed by the provisions of the Electoral Act disenfranchising them. Although they based their claim initially on the alleged infringement of the rights contained in sections 9,¹³ 10,¹⁴ 12(1)(a),¹⁵ 15(1),¹⁶ 33,¹⁷ 35(2)(e),¹⁸ and 35(3)(n)¹⁹ of the Constitution, at the hearing they relied only on the right to vote and the right to equality.

The right to vote

27. The right to vote is entrenched in section 19(3)(a) of the Constitution which provides:

“Every adult citizen has the right –

(a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret”.

28. As Sachs J held in August:

“the universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.”²⁰

The right to vote “by its very nature imposes positive obligations upon the legislature and the executive”.²¹ This was reaffirmed in New National Party of South Africa v Government of the RSA and Others²² where the “nature, ambit and importance” of the right to vote was analysed by Yacoob J. He stressed that this right which is fundamental to democracy requires proper arrangements to be made for its effective exercise.²³ This is the task of the legislature and the executive which have the responsibility of providing the legal framework, and the infrastructure and resources necessary for the holding of free and fair elections.

29. In terms of the Constitution, elections for the national assembly are based on the national common voters’ roll,²⁴ and elections for provincial legislatures and municipal councils on the province’s segment²⁵ and the municipality’s segment²⁶ of the national common voters’ roll respectively. Inclusion in the national common voters’ roll is thus essential for the exercise of the right to vote.²⁷

30. The Constitution requires elections to be managed by the Commission in accordance with national legislation.²⁸ The relevant legislation is the Electoral Act. It makes provision for various matters pertaining to the running of elections including the registration of voters and the compilation of a national common voters’ roll. The voters’ roll must contain the names of all registered voters and be kept open for registration until the date of proclamation of the election date by the President. Once the election date has been proclaimed, the voters’ roll is closed and persons whose names are not on the roll may not vote in the elections.²⁹ The implications of this for the relief claimed by the applicants are dealt with later in this judgment.

31. The Electoral Act curtails the right of convicted prisoners to vote in elections in two respects. Convicted prisoners who on the day of the elections are serving a sentence of imprisonment without the option of a fine are precluded by section 24B(2) from voting. Convicted prisoners serving a sentence of imprisonment without the option of a fine are precluded by section 8(2)(f) from registering as voters whilst they are in prison. Thus, if they had not registered before being imprisoned and are released from prison after the voters’ roll has closed but before the day of the elections, they will not be able to vote even though they are no longer in prison.

32. Counsel for the Minister correctly accepted that these provisions limit the voting rights of convicted prisoners serving sentences of imprisonment without the option of a fine. Counsel contended, however, that the limitation is justifiable in terms of section 36 of the Constitution. Whether or not that is so is the question that has to be decided in this application.

The limitation analysis

33. Section 36 calls for a proportionality analysis in which the question ultimately

“is one of degree to be assessed in the concrete legislative and social setting of the measure, paying due regard to the means which are realistically available in our country at this stage, but without losing sight of the ultimate values to be protected.”³⁰

34. Counsel for the applicants submitted that the Minister has the onus of proving that the admitted limitation of the right to vote is reasonable and justifiable and, if this cannot be established, the application must succeed. Although “onus” is not infrequently used in this context it is, as this Court has had occasion to point out previously, an onus of a special type.³¹ It is not the conventional onus of proof as it is understood in civil and criminal trials where disputes of fact have to be resolved. It is rather a burden to justify a limitation where that becomes an issue in a section 36 analysis. That is how it is described by Somyalo AJ in Moise v Greater Germiston Transitional Local Council,³² who said:

“It is also no longer doubted that, once a limitation has been found to exist, the burden of justification under s 36(1) rests on the party asserting that the limitation is saved by the application of the provisions of the section. The weighing up exercise is ultimately concerned with the proportional assessment of competing interests but, to the extent that justification rests on factual and/or policy considerations, the party contending for justification must put such material before the Court. It is for this reason that the government functionary responsible for legislation that is being challenged on constitutional grounds must be cited as a party. If the government wishes to defend the particular enactment, it then has the opportunity - indeed an obligation - to do so. The obligation includes not only the submission of legal argument but the placing before Court of the requisite factual material and policy considerations. Therefore, although the burden of justification under s 36 is no ordinary onus, failure by government to submit such data and argument may in appropriate cases tip the scales against it and result in the invalidation of the challenged enactment.”³³

35. This calls for a different enquiry to that conducted when factual disputes have to be resolved. In a justification analysis facts and policy are often intertwined. There may for instance be cases where the concerns to which the legislation is addressed are subjective and not capable of proof as objective facts. A legislative choice is not always subject to courtroom fact-finding and may be based on reasonable inferences unsupported by empirical data. When policy is in issue it may not be possible to prove that a policy directed to a particular concern will be effective. It does not necessarily follow from this, however, that the policy is not reasonable and justifiable. If the concerns are of sufficient importance, the risks associated with them sufficiently high, and there is sufficient connection between means and ends, that may be enough to justify action taken to address them.

36. Where justification depends on factual material, the party relying on justification must establish the facts on which the justification depends. Justification may, however, depend not on disputed facts but on policies directed to legitimate governmental concerns. If that be the case, the party relying on justification should place sufficient information before the court as to the policy that is being furthered, the reasons for that policy, and why it is considered reasonable in pursuit of that policy to limit a constitutional right. That is important, for if this is not done the court may be unable to discern what the policy is, and the party making the constitutional challenge does not have the opportunity of rebutting the contention through countervailing factual material or expert opinion. A failure to place such information before the court, or to spell out the reasons for the limitation, may be fatal to the justification claim. There may however be cases where despite the absence of such information on the record, a court is nonetheless able to uphold a claim of justification based on common sense and judicial knowledge.³⁴

37. Ultimately what is involved in a limitation analysis is the balancing of means and ends. This entails an analysis of all relevant considerations

“to determine the proportionality between the extent of the limitation of the right considering the nature and importance of the infringed right, on the one hand, and the purpose, importance and effect of the infringing provision, taking into account the availability of less restrictive means available to achieve that purpose.”³⁵

In this process, different and sometimes conflicting interests and values may have to be taken into account. Context is all important and sufficient material should always be placed before a court dealing with such matters to enable it to weigh up and evaluate the competing values and interests in their proper context.

38. With this in mind, I turn now to an examination of the reasons given on behalf of the Minister for denying the vote to prisoners sentenced to imprisonment without the option of a fine.

Contentions advanced on behalf of the Minister

39. Mr Gilder, the Director-General of Home Affairs, in an answering affidavit lodged on behalf of the Minister gives the government’s reasons for limiting the voting rights of prisoners. He says that prior to the passing of the Amendment Act consideration was given to the need to make provision for voting by people qualified to vote, but who would not be able to find their way to polling stations on election day. Arrangements necessary for this purpose would involve sanctioning the casting of special votes at places other than polling stations, and the use of mobile voting stations on election day to enable people unable to travel to polling stations to cast their votes.

40. According to Mr Gilder, both these procedures involve risks for the integrity of the voting process. Scrutiny to ensure that there is no tampering with special votes or interference with voters at mobile voting stations presents certain difficulties. Arrangements have to be made for the storage and transportation of the special votes to places where they can be counted and this too has risks. Moreover, the provision of special arrangements of this nature puts a strain on the logistical and financial resources available to the Commission for the purpose of conducting the elections and this too has to be taken into account.

41. For these reasons, the categories of people for whom special arrangements should be made had to be limited. The favoured categories were people unable to travel to polling stations because of physical infirmities, disabilities or pregnancy, persons and members of their household absent from the Republic on government service, and people who would be absent from their voting districts on election day because of duties connected with the elections.

42. In addition, attention was given to the position of prisoners. Regard was had to the decision of this Court in August³⁶ where it was held that absent legislation preventing them from doing so, prisoners have a constitutional right to vote, and the Commission has no power to disenfranchise them by failing to make adequate provision for this vote. The question whether legislation disqualifying prisoners or categories of prisoners from voting could be justified under section 36 of the Constitution was not raised in the August case and the judgment specifically refrained from dealing with that issue.³⁷

43. According to Mr Gilder, it was appreciated that in the light of this judgment, unless the position of prisoners was addressed in legislation, arrangements would have to be made for them to vote. He says that it was decided that some but not all prisoners should be allowed to vote. A distinction was made between three classes of prisoners. Awaiting trial prisoners were entitled to the benefit of the presumption of innocence and should not be excluded from voting. Prisoners sentenced to a fine with the alternative of imprisonment who were in custody because they had not paid the fine should also be allowed to vote. Their being in custody was in all probability due to their inability to pay the fines and they should not lose the right to vote because of their poverty. Prisoners serving sentences of imprisonment without the option of a fine were, however, in a different category. It was considered reasonable to deny them the right to register or vote whilst they were serving their sentences.

44. Mr Gilder says that the main rationale for this is that these prisoners have been deprived of their liberty by a court after a fair trial. This has various consequences. Because their liberty has been curtailed, they are unable to avail themselves of the ordinary facilities made available for voter registration and voting. If they were not excluded from registering and voting then, in the light of the decision in the August case,³⁸ special provision would have had to have been made for them to vote. There are, however, other categories of persons who for good reasons have difficulty in getting to registration and voting stations. Rather than putting the scarce resources of the state at the disposal of convicted prisoners, such resources should, he contends, be used for the provision of facilities to enable law abiding citizens to register and vote.

45. The main thrust of the justification offered by him was that it would be unfair to make provision for voting by prisoners and not to do the same for law abiding citizens unable to vote. Although counsel for the Minister correctly did not support this contention, Mr Gilder went so far as to contend in his affidavit that the prisoners had not been deprived of their right to vote saying: “There was no denial of the right to vote. There was simply a refusal to make special arrangements.” A similar contention was specifically rejected by this Court in August.³⁹ When people are incarcerated under the laws of the country and no arrangements are made for them to vote, it cannot be said that their right to vote has not been impaired. The contention is also untenable in the light of section 24B(2) of the Electoral Act which provides in express terms that prisoners may only vote if they are not serving sentences of imprisonment without the option of a fine.

46. Mr Gilder also referred to the fact that various open and democratic societies curtail the right of prisoners to vote. He says that it is reasonable to do so, particularly in a country like ours where there are strong feelings against the high level of crime. It would not be fair, he says, to devote resources to criminals who are responsible for their own inability to vote, if similar provision cannot be made for deserving categories of people who through no fault of their own are unable to register or attend polling stations on election day. Counsel for the Minister submitted that making provision for convicted prisoners to vote would in these circumstances send an incorrect message to the public that the government is soft on crime.

Logistics and expense

47. Counsel for the applicants contended that issues such as cost are not relevant to an enquiry into the limitation of rights. In Ferreira v Levin NO and Others: Vryenhoek and Others v Powell NO and Others,⁴⁰ Ackermann J pointed out that problems involving resources cannot be resolved in the abstract “but must be confronted in the context of South African conditions and resources — political, social, economic and human”.⁴¹ Whilst it is true, as Ackermann J explained in his judgment, that what is reasonable in “one country with vast resources, does not necessarily justify placing an identical burden on a country with significantly less resources”⁴² the right to vote is foundational to democracy which is a core value of our Constitution. In the light of our history where denial of the right to vote was used to entrench white supremacy and to marginalise the great majority of the people of our country, it is for us a precious right which must be vigilantly respected and protected.

48. Resources cannot be ignored in assessing whether reasonable arrangements have been made for enabling citizens to vote. There is a difference, however, between a decision by Parliament or the Commission as to what is reasonable in that regard, and legislation that effectively disenfranchises a category of citizens.

49. In the present case, however, it is not necessary to take this issue further for the factual basis for the justification based on cost and the lack of resources has not been established. Arrangements for registering voters were made at all prisons to accommodate unsentenced prisoners and those serving sentences because they had not paid the fines imposed on them. Mobile voting stations are to be provided on election day for these prisoners to vote. There is nothing to suggest that expanding these arrangements to include prisoners sentenced without the option of a fine will in fact place an undue burden on the resources of the Commission. Apart from asserting that it would be costly to do so, no information as to the logistical problems or estimates of the costs involved were provided by Mr Gilder. The Commission abided the decision of the Court. It lodged affidavits to explain its attitude to the Court, and was represented by counsel at the hearing. It did not place any information before the Court in regard to costs and logistics and did not suggest that it would be unable to make the arrangements necessary to enable all prisoners to vote.

50. It will no doubt be costly and logistically difficult because of time pressures to go through the registration process again for the benefit of prisoners who were not previously allowed to register. But if that be necessary, the added cost and allocation of human resources will be due largely to the prior exclusion.

51. In so far as this aspect of the case is concerned, the burden of justifying the limitation falls at the first hurdle and it is not necessary to engage in the proportionality analysis that would have been necessary if the factual underpinning for the contention based on lack of resources had been established.

Favouring prisoners over other voters

52. There is no substance in the contention that prisoners would be favoured over others who have difficulty in attending polling stations if arrangements are made to enable them to register and vote at the prisons in which they are detained.

53. Prisoners are prevented from voting by the provisions of the Electoral Act and by the action that the state has taken against them. Their position cannot be compared to people whose freedom has not been curtailed by law and who require special arrangements to be made for them to be able to vote. Whether the failure to make such arrangements for particular categories of persons is reasonable and justifiable will depend on the facts of those cases. We are not called upon to consider that in the present case. The mere fact that it may be reasonable not to make special arrangements for particular categories of persons who are unable to reach or attend polling stations on election day does not mean that it is reasonable to disenfranchise prisoners. Whether or not that is reasonable as a matter of policy raises different considerations.

Policy

54. Mr Gilder says in his affidavit that

“in a country in which crime is a major problem and there is a strongly negative attitude to criminals it would be highly insensitive, and indeed irresponsible, to say to law-abiding citizens that some of the resources which could have been utilised to ameliorate the effect of the obligation to get themselves to their voting stations have been diverted to those who have infringed their rights. This applies especially to victims of crimes, whether involving violence or even a crime such as theft. Confidence in the electoral process could be seriously undermined.”

55. Counsel for the Minister submitted that this gives rise to a concern that if prisoners are allowed to vote that will send a message to the public that the government is soft on crime. Counsel pointed out that this perception is not correct, and, as appears from Mr Gilder’s affidavit, the government has in fact taken various stringent measures to combat crime.

56. This Court has previously expressed concern about the need

“to ensure that the alarming level of crime is not used to justify extensive and inappropriate invasions of individual rights.”⁴³

A fear that the public may misunderstand the government’s true attitude to crime and criminals provides no basis for depriving prisoners of fundamental rights that they retain despite their incarceration.⁴⁴ It could hardly be suggested that the government is entitled to disenfranchise prisoners in order to enhance its image; nor could it reasonably be argued that the government is entitled to deprive convicted prisoners of valuable rights that they retain in order to correct a public misconception as to its true attitude to crime and criminals.

57. I will assume that Mr Gilder intended to convey something different. That at the level of policy it is important for the government to denounce crime and to communicate to the public that the rights that citizens have are related to their duties and obligations as citizens. Such a purpose would be legitimate and consistent with the provisions of section 3 of the Constitution.

58. The justification of such a policy, however, raises difficult and complex issues. This is well illustrated by the decision of the Supreme Court of Canada in Sauvé v Canada (Chief Electoral Officer).⁴⁵  In 1988, Mr Sauvé, a convicted prisoner serving a sentence of imprisonment, unsuccessfully challenged the constitutionality of a provision of the Canada Elections Act⁴⁶ which in effect deprived convicted prisoners of their right to vote whilst serving their sentences.  On appeal, the Supreme Court of Canada disposed of the matter summarily in an oral judgment holding that the legislation did not meet the minimum impairment test required for the limitation of rights in Canada.⁴⁷  Following this decision new legislation was prepared in which prisoners sentenced to two years’ imprisonment or more were denied the right to vote whilst in prison.  That legislation was preceded by an investigation into the matter by a special committee on electoral reform which reviewed a report by a Commission (the Lortie Commission)⁴⁸ which had previously considered the same issue. That Commission had recommended that only those prisoners who had been convicted of an offence punishable by a maximum of life imprisonment and who had been sentenced to imprisonment for ten years or more should be disqualified from voting.  The report of the Special Committee is referred to in the judgment of Gonthier J who said that the Committee

“spent a great deal of time trying to determine whether a two year cutoff or five years or seven years or ten years (as recommended by the Lortie Commission) was more justifiable. Eventually the Special Committee recommended a two-year cutoff since, in their view, serious offenders may be considered to be those individuals who have been sentenced to a term of two years or more in a correctional institution”.⁴⁹

59. The Canadian government contended that the disqualification served two broad objectives: to enhance civic responsibility and respect for the rule of law; and to provide additional punishment, or “enhance the general purposes of the criminal sanction”.⁵⁰

60. It appears from the judgments in the Sauvé case that the record of evidence included details of the previous reports on whether it would be appropriate and consistent with Canadian values to disqualify prisoners from voting.  There was also a considerable body of expert evidence dealing with this issue. In dealing with the minimum impairment test, the Crown and its experts gave three reasons for supporting the legislation. They were:

“only prisoners serving sentences of two years or more are disenfranchised, and thus the provision only targets what Parliament has identified as those who have perpetrated ‘serious offences’; the disenfranchisement is temporary, in the sense that the vote returns to the offenders once they leave jail; and the return of the vote once the offender leaves jail is automatic.”⁵¹

61. The Supreme Court of Canada divided 5 to 4 on the decision. The majority took the view that the government had failed to establish a rational connection between the denial of prisoners’ right to vote and the objectives of enhancing respect for the law and ensuring appropriate punishment. McLachlin CJ, writing for the majority, said:

“The right of all citizens to vote, regardless of virtue or mental ability or other distinguishing features, underpins the legitimacy of Canadian democracy and Parliament’s claim to power. A government that restricts the franchise to a select portion of citizens is a government that weakens its ability to function as the legitimate representative of the excluded citizens, jeopardises its claims to representative democracy, and erodes the basis of its right to convict and punish law-breakers.”⁵²

62. She concluded this part of her judgment as follows:

“When the facade of rhetoric is stripped away, little is left of the government’s claim about punishment other than that criminals are people who have broken society’s norms and may therefore be denounced and punished as the government sees fit, even to the point of removing fundamental constitutional rights. Yet, the right to punish and to denounce, however important, is constitutionally constrained. It cannot be used to write entire rights out of the Constitution, it cannot be arbitrary, and it must serve the constitutionally recognised goal of sentencing. On all counts, the case that section 51(e) [of the Canada Elections Act] furthers lawful punishment objectives fails.”⁵³

She went on to question whether the measure would, if rational, have met the minimum impairment test and the requirements of proportionality, and concluded that it did not.

63. Gonthier J writing for the minority took a different view, saying:

“Given that the objectives are largely symbolic, common sense dictates that social condemnation of criminal activity and a desire to promote civic responsibility are reflected in the disenfranchisement of those who have committed serious crimes. This justification is rooted in a reasonable and rational social and political philosophy which has been adopted by Parliament. Further, it can hardly be seen as ‘novel’, as stated in the Chief Justice’s reasons, at para 41. The view of the courts below is that generally supported by democratic countries. Countries including the United States, the United Kingdom, Australia, New Zealand, and many European countries such as France and Germany, have, by virtue of choosing some form of prisoner disenfranchisement, also identified a connection between objectives similar to those advanced in the case at bar and the means of prisoner disenfranchisement.”⁵⁴

64. Gonthier J distinguished the first Sauvé case⁵⁵ on the grounds that it dealt with a blanket exclusion of prisoners regardless of the duration of their incarceration, and concluded that the two year line drawn by Parliament after an exhaustive investigation of the matter was an acceptable line:

“Since Parliament has drawn a line which identifies which incarcerated offenders have committed serious enough crimes to warrant being deprived of the vote, any alternative line will not be of equal effectiveness. Equal effectiveness is a dimension of the analysis that should not be under emphasised, as it relates directly to Parliament’s ability to pursue its legitimate objectives effectively. Any other line insisted upon amounts to second-guessing Parliament as to what amounts to a ‘serious’ crime.”⁵⁶

Conclusion

65. In a case such as this where the government seeks to disenfranchise a group of its citizens and the purpose is not self-evident, there is a need for it to place sufficient information before the Court to enable it to know exactly what purpose the disenfranchisement was intended to serve. In so far as the government relies upon policy considerations, there should be sufficient information to enable the Court to assess and evaluate the policy that is being pursued. In this regard, and bearing in mind that we are concerned here with legislation that disenfranchises voters, I agree with the comments of McLachlin CJ in the second Sauvé case:

“At the end of the day, people should not be left guessing about why their Charter rights have been infringed. Demonstrable justification requires that the objective clearly reveal the harm that the government hopes to remedy, and that this objective remains constant throughout the justification process. As this Court has stated, the objective ‘must be accurately and precisely defined so as to provide a clear framework for evaluating its importance, and to assess the precision with which the means have been crafted to fulfil that objective’”.⁵⁷

66. I have dealt in some detail with the second Sauvé case⁵⁸ because the two judgments are both compelling and articulate lucidly the case for and against prisoner disenfranchisement. What will be apparent from the reference to the two judgments is that the present case is markedly different from Sauvé. The main thrust of the justification in the present case was directed to the logistical and cost issues which cannot be sustained. The policy issue has been introduced into the case almost tangentially. In contrast, the detailed record in the second Sauvé case contained evidence which addressed the issues relevant to the policy decisions to disenfranchise prisoners, and the purpose that it would serve. In the present case we have only statements such as that made by counsel that the government does not want to be seen to be soft on crime, and that made by Mr Gilder that it would be unfair to others who cannot vote to allow prisoners to vote.

67. Moreover, we are concerned with a blanket exclusion akin to that which failed to pass scrutiny in the first Sauvé case.⁵⁹ Mr Gilder mentions crimes involving violence or even theft, but the legislation is not tailored to such crimes. Its target is every prisoner sentenced to imprisonment without the option of a fine. We have no information about the sort of offences for which shorter periods of imprisonment are likely to be imposed, the sort of persons who are likely to be imprisoned for such offences, and the number of persons who might lose their vote because of comparatively minor transgressions. In short we have wholly inadequate information on which to conduct the limitation analysis that is called for. Moreover, the provisions as formulated appear to disenfranchise prisoners whose convictions and sentences are under appeal. Another relevant factor to consider is the fact that the Electoral Act prohibits all prisoners sentenced to imprisonment without the option of a fine from voting, while the Constitution permits a prisoner serving a sentence of imprisonment of less than 12 months without the option of a fine to stand for election.⁶⁰ No explanation is given, and none is apparent, as to why a person who qualifies to be a candidate should be disqualified from voting. In the circumstances, the attempt by the Minister to justify the limitation fails, and the challenge to the constitutionality of the legislation on the ground that it infringes the right to vote must be upheld. That being so, there is no need to discuss the case based on the right to equality, and whether in the circumstances of this case it should be treated separately or taken only as reinforcing the right to vote, which is the primary right on which the applicants rely.

Remedy

68. As stated above, the Commission indicated its intention to abide the judgment of this Court.⁶¹ Though it did so, it also filed heads of argument and was represented at the hearing. An affidavit was filed in the proceedings before the High Court by the chief electoral officer and a further affidavit filed in this Court made by the Commission’s attorney.

69. In its heads of argument and in the affidavit filed shortly before the hearing in this Court, the Commission drew attention to the fact that the election date of 14 April 2004 had formally been proclaimed on 11 February 2004⁶² and that the voters’ roll had closed on that date in terms of section 24 of the Electoral Act. The Commission also noted that the voters’ roll had been certified in terms of section 24(2) of the Electoral Act on 20 February 2004. Accordingly, it was argued, the consequential relief sought by the applicants would no longer be competent as the roll could not be re-opened or supplemented in terms of the Electoral Act. Moreover, it was argued that it would not be competent for this Court to grant an order requiring the voters’ roll to be re-opened to permit the registration of prisoners.

70. Section 24 of the Electoral Act provides as follows:

“(1) The voters’ roll, or the segments of the voters’ roll that must be used for an election, are those as they exist on the day the election is proclaimed.

2. By not later than the relevant date stated in the election time table, the chief electoral officer must certify the voters’ roll to be used in that election and publish it by making it available for inspection at the following venues:

1. At the Commission’s head office, the segments for all voting districts in which the election will take place;

2. in each province, at the office of the Commission’s provincial representative, the segments for all voting districts in the province in which the election will take place; and

3. at the office of each municipality, the segments for all voting districts in that municipality in which the election will take place.”

This provision, counsel for the Commission argued, effectively barred any further registration once the roll had closed on the date the elections were proclaimed.

71. Section 24 of the Electoral Act is an important provision which promotes the conduct of free and fair elections in accordance with the fundamental values of our Constitution.⁶³ The process of compilation of the voters’ roll is carefully regulated by the Electoral Act. It requires timeous completion of the roll,⁶⁴ and affords voters and political parties an opportunity to examine and, where appropriate, object to the voters’ roll⁶⁵ so that they can be satisfied that the roll has been properly compiled. Timeous closure of the roll enhances public confidence in the elections by avoiding complaints that the roll has been tampered with at the last minute or in some improper fashion. The roll accordingly remains open for inspection as provided for in section 24(2). We must not underestimate the importance of these provisions as key to protecting the legitimacy of democratic elections.

72. In response to the argument raised by the Commission, the applicants lodged an application seeking to amend the relief they sought. They sought the addition of the following paragraphs to their notice of motion:

“3A Insofar as it is necessary, the second respondent and its duly authorised officials are ordered and directed forthwith to make the requisite entries in the voters’ roll of all prisoners, regardless of whether or not such prisoners have been sentenced to imprisonment without the option of a fine, who are entitled to register as voters in terms of the relevant provision of sections 7 and 8 of the Electoral Act 73 of 1998.

3B The Second Respondent and its duly authorised officials are ordered and directed to implement the relief sought in paragraphs 3 and 3A above within such period as will enable the prisoners who are entitled to vote, regardless of whether or not such prisoners have been sentenced to imprisonment without the option of a fine, to vote on the date of the election at the voting stations as determined by the second respondent.

3C The Second Respondent and its duly authorised officials are ordered and directed forthwith to amend if necessary, the election timetable which it is required to be published in terms of section 20(2) of the Electoral Act, in order to give effect to the relief sought in prayers 3 to 3B.”

Alternatively to paragraphs 3B and 3C, the applicants sought alternative relief in the event that the second respondent and its duly authorised officials were unable to give effect to the relief sought in prayers 3B and 3C. That relief was the following:

“4. The second respondent is ordered to postpone in terms of section 22 of the Electoral Act the voting on the proclaimed election date to a date which falls within the period referred to in sections 49(2) and 108(2) of the Constitution, in order to ensure that all the prisoners who are entitled to vote, regardless of whether or not they have been sentenced to imprisonment without the option of a fine, will be able to register as voters and will be able to vote on the date to which voting has been postponed.”

73. The question that arises now for us to consider is whether this Court can make an order requiring the Commission to make arrangements to register prisoners for voting despite the fact that the voters’ roll has now closed in terms of section 24 of the Electoral Act. Section 172(1) of the Constitution provides as follows:

“When deciding a constitutional matter within its power, a court ─

1. must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

2. may make any order that is just and equitable, including ─

   1. an order limiting the retrospective effect of the declaration of invalidity; and

   2. an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”

Another relevant provision of the Constitution is section 38 which provides that courts may grant “appropriate relief” for the infringement of rights. These two provisions read together require a court, when providing a remedy for the infringement of a constitutional right, to grant appropriate relief to the applicant which must be relief that is just and equitable in the circumstances of the case.

74. This Court has said on many occasions that in granting appropriate relief, and making an order that is just and equitable under section 172(1)(b), it is imperative that where possible and appropriate successful litigants should obtain relief⁶⁶ and that that relief should be effective. As Ackermann J reasoned in Fose v Minister of Safety and Security:⁶⁷

“This Court has a particular duty to ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of any of the rights entrenched in it. In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have particular responsibility in this regard and are obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal.”⁶⁸

Other considerations, too, are relevant to determining what is just and equitable. Where possible relief should not be granted only to the applicants before a court, but to all those similarly situated to the applicants.⁶⁹ On the other hand, particularly in the context of retrospective orders, the court must consider the potential disruption and uncertainty that an order could occasion.⁷⁰

75. The Constitution expressly permits courts to suspend an order of invalidity. When a court does so, the effect of the order is to permit the unconstitutional provision to continue to operate pending the end of the suspension period. A court only makes such an order, of course, where it is just and equitable to do so in the light of all the facts of a particular case. Thus the effect of a suspension order is to permit a provision in conflict with the Constitution to continue to operate for a limited period.

76. In this case, the Commission has argued that because the voters’ roll has closed, the provisions of section 24 stand as a complete bar to consequential relief in favour of the applicants who have demonstrated that their constitutional rights have been infringed. The Commission, however, also states that it is practically possible for the prisoners to be registered and to be allowed to vote, and that the difficulty lies not in the logistical challenge of rectifying the situation, but simply in the legal impediment caused by section 24(1).

77. Section 172(1) states that a court may make any order that is “just and equitable”. It then includes within that the power to make an order suspending the effect of a declaration of invalidity, which effectively permits the Court to order that an unconstitutional state of affairs continue for a fixed period. In the light of this, it would seem strange were the terms “just and equitable” not broad to enough to permit a court to make an order which has the effect of creating a limited exception to the provisions of a statute for a short period of time in appropriate circumstances. The greater power to permit the continued infringement of the Constitution must imply the lesser power to sanction an exception to the application of an otherwise mandatory statutory provision for a limited period of time to protect a constitutional right. This must of course be done within the overriding considerations of justice and equity. These considerations must be understood in the light of the constitutional imperative of providing appropriate relief to successful litigants. It would be consistent with this imperative for the Constitution to be interpreted to empower this Court to create an exception to the operation of a mandatory statutory provision to enable successful litigants to enjoy their constitutional rights. We conclude, in the light of the aforegoing, that this Court has the competence to order consequential relief as sought by the applicant and section 24 will not per se operate as a bar to such relief. The question that remains for us to consider is whether such relief is just and equitable in the circumstances of this case.

78. The consequential relief sought by the applicants requires a supplementary voters’ roll of a relatively small number of voters to be compiled. This process of compilation requires the registration of prisoners who wish to register in prisons, followed by an opportunity to be afforded to them to appeal any refusal to register them. It also requires the provision of an opportunity for others, including political parties, to inspect and if necessary object to the supplementary voters’ rolls so compiled. The Commission has indicated to the Court that this process will be logistically possible within the time available before the election date.

79. In considering whether to grant such consequential relief, a key consideration is the importance of affording successful litigants effective relief. A further consideration is the fact that in this case the applicants have acted as expeditiously as possible to ensure they obtain the relief they seek. As mentioned earlier, the legislation under challenge was promulgated on 17 December 2003 and the challenge in the High Court was launched six days later. No blame can therefore attach to the applicants in regard to the urgency of this matter. The Court must also consider whether granting the consequential relief sought will prejudice the purposes of section 24 or otherwise threaten the ability of the Commission to run free and fair elections. We are persuaded that in this case, consequential relief will not occasion this risk.

Order

80. The following order is made:

1. It is declared that the following provisions of the Electoral Act 73 of 1998 are inconsistent with the Constitution and invalid:

   1. the whole of section 8(2)(f);

   2. the phrase “and not serving a sentence of imprisonment without the option of a fine” in section 24B(1); and

   3. the whole of section 24B(2).

2. The Electoral Commission and the Minister of Correctional Services are ordered to ensure that all prisoners who are entitled to vote, in terms of the Electoral Act 73 of 1998 and paragraph 1 of this order, are afforded a reasonable opportunity to register as voters for, and to vote in, the forthcoming elections of April 2004.

3. Notwithstanding the provisions of Chapter 2 and section 24 of the Electoral Act 73 of 1998, the Electoral Commission is ordered that, not later than 9 April 2004, it must:

   1. give notice to prisons and prisoners that registration of voters will take place on a specified date;

   2. visit prisons and register prisoners who, pursuant to this order, are entitled to vote;

   3. prepare, print and distribute to all who are so entitled, a supplementary voters’ roll of prisoners so registered; and

   4. receive, properly consider and dispose of any objection or appeal relating to registration as a voter or the supplementary voters’ roll.

4. The time within which the various steps referred to in paragraph 3 of this order may be taken may be determined by the Electoral Commission, with due regard to the provisions of paragraph 2 of this order.

5. The Electoral Commission is required on or before Wednesday 10 March 2004 to serve on the Minister of Correctional Services, Nicro and the two prisoners with whom it brought this application, and lodge with the Registrar of this Court, an affidavit setting out the manner in which it will comply with paragraphs 2 and 3 of this order. Any interested person may inspect this affidavit at the Registrar’s office once it has been lodged.

6. The Minister of Home Affairs is ordered to pay the costs of this application, including the costs of two counsel.

Langa DJC, Mokgoro J, Moseneke J, O’Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J concur in the judgment of Chaskalson CJ.

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