South Africa: High Courts - Gauteng

(Para [90] of Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) 416 (CC))

[32]The African Charter on Human and Peoples' Rights (“African Charter)”, adopted on 27 June 1981, which was acceded to by South Africa on 9 July 1996, is even more specific than the ICCPR in spelling out the obligations of State parties to ensure that people are well informed of the rights in the African Charter. The relevant articles are arts 9, 13 and 25 which provide:

“Article 9

1. Every individual shall have the right to receive

information.

2. Every individual shall have the right to express and disseminate his opinions within the law.

Article 13

1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

Article 25

State parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood.”

[33] Similarly, the American Convention on Human Rights provides in art 23 that all citizens shall enjoy the right and opportunity “to take part in the conduct of public affairs, directly or through freely chosen representatives”.

[34] The Harare Commonwealth Declaration proclaims "the individual's inalienable right to participate by means of free and democratic processes in framing the society in which he or she lives”.

[35] The Inter-American Democratic Charter reaffirms that “the participatory nature of democracy in [the American] countries in different aspects of public life contributes to the consolidation of democratic values and to freedom and solidarity in the Hemisphere”. It further asserts that

“(i)t is the right and responsibility of all citizens to participate in decisions relating to their own development. This is also a necessary condition fo the full and effective exercise of democracy. Promoting and fostering diverse forms of participation strengthens democracy.”

[36] It seems to this Court that the history of denial to the vast majority of this country’s citizens of the vote is the context in which the right to vote must be interpreted. Given the history of disenfranchisement in our country, the right to vote occupies a special place in our democracy. Any limitation of this right must be supported by clear and convincing reasons. If the government seeks to disenfranchise a group of its citizens it must place sufficient information before the Court demonstrating what purpose the disenfranchisement is intended to serve and to evaluate the policy considerations on which such decision was based.

[37] To limit the right to vote Parliament would have to do so in terms of a law of general application which meets the requirements of reasonableness and justifiability as set out in section 36 of the Constitution (the limitations clause).

[38] Any limitation of the rights of citizens to vote would have to pass constitutional scrutiny:

“In a country of great disparities of wealth and power it [the right to vote] declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive policy. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement.”

(Para 17 of the August case)

[39] Universal suffrage is extended to all citizens of South

Africa who are:

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

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

(my underlining)

[40] The Bill of Rights guarantees that every South African has the right to:

a. freedom of movement; and

b. leave the Republic;

[41] This Court is also of the opinion that citizenship, and the attendant right to vote, is not affected or diminished when a citizen exercises his or her right to freedom of movement or residence.

[42] The Electoral Act effectively denies all citizens working abroad (who are not employed by Government or fall within certain classes) their right to vote, while the Constitution, which is the overriding enactment, permits all citizens to stand for election. It is not clear why Parliament enacted provisions to the effect that a person who qualifies to be a candidate should be disqualified from voting just because he or she is working outside the country.

[43] The right of a citizen to vote clearly places a duty on the legislature and the executive to facilitate public participation in the conduct of public affairs by ensuring that this right can be realised. For this purpose the second respondent was established. The right to vote which is fundamental to democracy requires proper arrangements to be made for its effective exercise.

[44] It was highlighted by Yacoob J. in New National Party of South Africa v Government of South Africa and Others [1999] ZACC 5; 1999 (3) SA 191 (CC) in para [11] that :

”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.”

and in paras [13] to [14]:

“The right to vote contemplated by s 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.”

[45] It must be noted that in terms of the then current legislation namely section 25 of the Electoral Act, No. 202 of 1993, South African citizens who were outside the country during the 1994 elections could vote at foreign voting stations without even having to apply for special votes. No distinction was drawn between different classes of citizens (i.e. government employees or privately employed citizens).

[46] Before its amendment, the 1998 Electoral Act provided that certain classes of voters (i.e. those absent from the Republic on government service) could apply for special votes, but section 33(1)(b) provided that the second Respondent could “prescribe other categories of persons who may apply for special votes”.

[47] In 2003 section 33(1) was, however, amended to limit the class of citizens who may apply for special votes to

“temporary absence from the Republic for purposes of a holiday, a business trip, attendance of a tertiary institution or an educational visit or participation in an international sports event, if the person notifies the Commission within 15 days after the proclamation of the date of the election, of his or her intended absence from the Republic, his or her intention to vote, and the place where he or she will cast his or her vote.”

[48] The effect of the legislation referred to supra, watered down the right to vote which is inexplicable, arbitrary and inconsistent with the word and spirit of the fundamental right to vote contained in the Constitution.

[49] In order to assess section 33 of the Electoral Act and its place in the scheme of the Act it is necessary to refer to certain aspects.

[50] The constitution does not in any way deal with special votes. What the Constitution do is, in a nutshell, to:

a) guarantee the right to vote to every adult citizen;

b) lay down the principle that all citizens were equally entitled to the rights and benefits and even privileges of citizenship;

(Section 3(2)(a))

c) oblige the State to respect, protect, promote and fulfill inter alia the right to vote;

(Section 7(2))

d) determine that everyone is equal before the law and has the right to equal protection and benefit of the law;

(Section 9(1))

e) determine that everyone has inherent dignity and the right to have their dignity respected and protected (patently, inter alia by the State)

(Section 10)

f) provide the basis and extent upon which the right to vote may be limited;

(Section 36)

g) provide the basis upon which inter alia the right to vote must be interpreted;

(Section 39)

[51] By enacting the general legislation to deal with the voting process namely the Electoral Act, 1998, of which section 2 stipulates:

“Every person interpreting or applying this Act must –

do so in a manner that gives effect to the constitutional

declarations, guarantees and responsibilities contained in the Constitution”

the legislature issued instructions to every person interpreting the Act.

[52] The legislature foresaw that every voter would not be in his voting district on polling day. In consequence and in order to extend the opportunity to exercise the right to vote (as the legislature was compelled to do) the legislature in section 33 provided a mechanism to accommodate persons that “cannot vote at a voting station in the voting district in which the person is registered as a voter” on election day and the legislature called such mechanism “special votes”.

[53] It stands to reason that the term “special” was not and could not have been intended to convey that such mechanism would be a privilege afforded to some and denied to others. That would of necessity be in conflict with the Constitution.

[54] Furthermore, Parliament is not entitled to re-determine the electorate because that was already done by the Constitution. It follows logically that special votes could not have been granted by Parliament at will to whosoever the legislature thought fit for such privilege.

[55] The Electoral Act of necessity had to comply with sections 7, 9 and 36 of the Constitution.

[56] In so far as the Electoral Act does not, as in this case, if offends against basic human dignity and equality of every affected citizen.

[57] By reason of the fact that section 33 of the Electoral Act respects, protects, promotes and fulfils the right to vote of some adult citizens but not the right to vote of others, section 33 must be adjudicated upon by taking into account section 36 of the Constitution which reads as follows:

“LIMITATION OF RIGHTS

(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 in reasonable and justifiable in an open and

democratic society based on human dignity, equality and

freedom, taking into account all relevant factors,

including -

(a) The nature of the right;

(b) The importance of the purpose of the limitation;

(c) The nature and extent of the limitation;

(d) The relation between the limitation and its purpose; and

5. Less restrictive means to achieve the purpoes

(2). Except as provided in subsection (1) or in all of any

other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights”

[58] Section 33(1)(b) of the Electoral Act provides in clear and unqualified terms that an adult citizen who cannot vote at a voting station in the voting district in which such adult citizen is registered as a voter due to his or her

“absence from the Republic on Government service (or membership of the

household of the person so being absent) is entitled to apply for a special vote”.

[59] “Government service” is not defined and may present problems with interpretation.

[60] The creation of a privileged group of citizens is contrary to the Constitution and is in conflict with the Bill of Rights and specifically sections 19 and 36 thereof.

[61] It is an unacceptable form of discrimination in that it affords a privilege to people on Government services as opposed to people in the private sector and amounts to totalitarism on the part of the State.

[62] Persons on Government service are also favoured with the privilege that they need not even notify the Electoral Commission of the fact that they were out of the country.

[63] This Court must now look at how other courts in the country dealt with and regard the matter.

[64] “Unlike the interim Constitution, however, the above

sections contain no provision allowing for

disqualifications from voting to be prescribed by law.

Accordingly, if Parliament seeks to limit the unqualified

right of adult suffrage entrenched in the Constitution, it

will be obliged to do so in terms of a law of general

application which meets the requirements of

reasonableness and justifiability as set out in section 36”.

(Last sentence of para [5] of August )

[65] There is an affirmative obligation on the second respondent to take reasonable steps to ensure that eligible voters are registered.

(Last sentence of para [16] of August)

[66] There is an equal affirmative obligation on the second respondent to take reasonable steps to ensure that voters who are registered are able to vote.

“Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement”.

(Last sentence of para [17] of August and also para (26))

[67] “As has been stated above, the right of every adult citizen

to vote in elections for every legislative body is given in

unqualified terms. The first and second respondents

correctly conceded that prisoners retain the right to vote,

since Parliament has not passed any law limiting that

right”.

(Para [20] of August)

[68] The same is true of adult citizens registered to vote whilst being absent from the Republic otherwise than on Government service.

“Parliament cannot by its silence deprive any prisoner of the

right to vote. Nor can its silence be interpreted to empower or

require either the Commission or this Court to decide which

categories of prisoners, if any, should be deprived of the vote,

and which should not. The Commission’s duty is to manage

the elections, not to determine the Electorate. It must decide

the how of voting, not the who.”

(Para [33] of August)

[69] “Parliament must ensure that people that 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.”

(Last three sentences of para [21] of New National Party of South Africa v the Government of RSA [1999] ZACC 5; 1999 (3) SA 191 (CC) )

[70] “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.”

(Last three lines of para [23] of New National Party)"

[71] “Arbitrariness is inconsistent with the rule of law

which is a core value of the Constitution”

(Para [23] of New National Party)

[72] “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.”

(Fifth sentence of para [37] of New National Party)

[73] “What is more, the right cannot be exercised in the

absence of a legislative framework. That framework

should seek to enhance democracy, not limit it. To do

so, it needs to draw all citizens into the political

process. Regulation, which falls short of prohibiting

voting by a specified class of voters, but which

nevertheless has the effect of limiting the number of

eligible voters needs to be in reasonable pursuance of

an appropriate Government purpose. For a Court to

require such a level of justification is not to trample on

the terrain of Parliament but to provide protection for

a right which is fundamental to democracy and which

cannot be exercised at all unless Parliament enacts an

appropriate legislative framework.”

(The Minority judgment of O’Regan J in New National Party of South Africa para [122])

[74] Section 9 of the Constitution protects the right to equality. This entails that the law will protect and benefit people equally and not discriminate unfairly against people or categories of people.

[75] Using the test into a violation of the equity clause tabulated in Harksen v Lane [1997] ZACC 12; 1998 (1) SA 300 (CC) it is clear that the differentiation in section 33 of the Electoral Act is unconstitutional:

1. The provision differentiates between categories of people:

government employees, students, businessmen, holidaymakers and athletes taking part in international sporting events are accommodated, but the rest (i.e. privately employed people, aid workers, lecturers, ministers of church etc.) are not. The differentiation does not bear a rational connection to any legitimate government purpose. The law will violate section 9(1) of the Constitution if there is no rational connection between the differentiation and the purpose. As the Constitutional Court said in para [25] of Prinsloo v van der Linde 1997 (3) SA 1012(CC):

“In regard to mere differentiation the constitutional state is

expected to act in a rational manner. It should not regulate

in an arbitrary manner or manifest ‘naked preferences’

that serve no legitimate governmental purpose, for that

would be inconsistent with the rule of law and the

fundamental premises of a constitutional state. The purpose

of this aspect of equality is, therefore, to ensure that the

state is bound to function in a rational manner.”

2. The next question is whether the differentiation amounts to

unfair discrimination: This entails a two-stage enquiry:

1. Firstly, does the differentiation amount to ‘discrimination’? The

answer has to be “YES” – objectively, the differentiation is based on grounds which have the potential to impair the fundamental human dignity of persons, or to affect them adversely in a comparably serious manner. To disallow a class of citizens from exercising their right to vote just because those citizens are outside the country for different reasons than other classes of citizens also outside of the country, cannot be anything but “discrimination”.

2. Is it ‘unfair discrimination’? Again the answer has to be in the

affirmative. The discrimination amounts to favouritism of, most prominently, employees of the Government. They also need not even comply with the procedural requirements of notice. The discrimination impacts directly on the applicant’s right to vote, which is a fundamental right guaranteed by the Constitution, and to which the Electoral Act should give effect.

3. Secondly, it has to be determined whether the provision can be justified under the

4. limitation clause. It cannot, although the right to vote may be limited by law of

5. general application, that law must meet the requirements of reasonableness and

6. justifiability set out in section 36 of the Constitution. (Paras [22] and [23] of

August). 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”

(S v Manamela and Another (Director-General of Justice intervening) 2000 (3) SA 1 (CC) quoted with approval in Minister of Home Affairs v Nicro and Others [2004] ZACC 10; 2005 (3) SA 280 (CC) para [33])

[76] In a justification analysis facts and policy are often intertwined. A legislative choice is not always subject to courtroom fact-finding and may be based on reasonable inferences unsupported by empirical data. If the [policy] concerns are of sufficient importance, the risks associated with them sufficiently high, and there is sufficient connection between means and ends, that may be enough to justify action taken to address them.

“Where justification depends on factual material, the party

relying on justification must establish the facts on which the

justification depends. Justification may, however, depend

not on disputed facts but on policies directed to legitimate

government 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”.

(Para [35] of Nicro)

[77] The only argument on behalf of the respondents can be risks to the integrity of the polling process, and a strain on financial and logistical resources available. Such argument, however, falls away when regard is had to the fact that the logistical arrangements have to be made for the classes of citizens abroad who are allowed to bring out special votes. The only issue can be financial namely the costs of transporting extra ballot papers to and from South African embassies, High Commissions and consulates which, however, would not place an undue burden on the respondents’ resources. Any risks attendant to the bringing out of special votes will be the same as those existing for the special votes which are allowed in section 33 as it presently stands.

[78] It is clearly unfair discrimination to exclude certain classes of citizens from exercising their right to vote whilst allowing others (who have no distinguishing features other than their reason for being abroad) to vote. In Larbi-Odam v MEC for Education (North-West Province [1997] ZACC 16; 1998 (1) SA 745 (CC) the exclusion of non-citizens from appointment in permanent teaching posts was held to be unfair discrimination. (See also Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC)).

[79] It is clear that the application must succeed. During argument Mr. Pelser indicated that prayer 6.6 was abandoned.

[80] Costs must follow the event.

[81] The following order is accordingly made:

1. An order is granted in terms of prayers 1, 2, 2.1, 2.2, 2.3, 3, 4,5, 6, 6.1, 6.2 6.3, 6.4, 6.5 , 6.7 of the notice of motion.

2.The matter is referred in terms of the provisions of section 167 of the Constitution to the Constitutional Court to confirm paragraph 1 of this order.

3.The first respondent must pay the costs of the applicant including the costs of two counsel.

___________________________

P.Z. EBERSOHN

ACTING JUDGE OF THE HIGH COURT

Applicant's counsel Adv. Q. Pelser SC

assisted by

Adv. B.S. du Plessis

Applicant's attorneys HURTER & SPIES ATTORNEYS

First Respondent's counsel Adv. K.Pillay

First Respondent's attorney STATE ATTORNEY

Second Respondent's counsel Adv. I. Semenya SC

assisted by

Adv. Budlender

Second Respondent's attorneys BOWMAN GILFILLAN INC.