August and Another v Electoral Commission and Others

CASE TITLE AND CITATION 

August and Another v Electoral Commission and Others [1999] ZACC 3, [1999] 4 BCLR 365.

COURT NAME AND BENCH 

Constitutional Court of South Africa.

DATE OF JUDGMENT 

1 April 1999.

PARTIES INVOLVED 

APPLICANTS 

The first applicant is Arnold Keith August who is serving a lengthy sentence after being found guilty of fraud, while the second applicant, Veronica Pearl Sbongile Mabutho is awaiting her trial on charges of fraud in custody as an unsentenced prisoner.

RESPONDENTS

The respondents in this matter are:

1. The Electoral Commission 
2. The Chairperson of the Electoral Commission 
3. The Minister of Home Affairs 
4. The Minister of Correctional Services 

FACTS OF THE CASE 

The applicants requested that the Commission ensure that inmates will be allowed to vote in the elections, both for their own benefit and on behalf of other detainees. On December 2, 1998, the applicants requested a regulation that would allow prisoners to vote, to which the Commission replied that upon a court order, it would do everything possible to facilitate the registration and voting of prisoners.

When the case was heard by Els J in the Transvaal High Court on 22 February 1999, the court held that there had been no express restriction on the convicts’ constitutional right to vote. Els J rejected the application, citing logistical, financial and administrative problems, and the premise that adjustments should only be made for voters “whose predicament was not of their own making”. The applicants sought leave to appeal to the Constitutional Court on the basis of their rights to equality, freedom of voting and dignity. The applicants sought ‘an order declaring that they made no arrangements to allow prisoners to vote in the forthcoming elections and all prisoners are entitled to register as voters on the national common voters’ roll and to vote in the forthcoming general elections, and requiring the respondents to make all necessary arrangements to enable them and all prisoners to do so.’

ISSUES RAISED

‘Whether prisoners’ constitutional rights to vote will be infringed if no appropriate arrangements are made to enable them to register and vote.’

ARGUMENTS OF THE PARTIES 

KEY CONTENTIONS BY THE APPLICANTS

The applicants’ lawyers argued that common law and the Constitution protected all inmates’ rights, except those that were unavoidably taken away by incarceration, and guaranteed everyone the right to vote, including prisoners. Therefore, the Commission was obligated to assist in the registration of inmates to establish conditions that would allow them to vote.

KEY CONTENTIONS BY THE RESPONDENTS

The counsel for the respondents disputed that they had done anything to hinder the applicants’ ability to register or vote and further supported Els J’s view that the applicants’ trouble was a result of their own actions.

The counsel further stressed how difficult it is to comprehend the meaning of “ordinarily resident” as it appears in s 7(1)(b) of the Electoral Act which arises from the question of whether a detained person’s “ordinary residence” is the prison or the place they resided in before imprisonment. 

The respondents complained that the initial interpretation would create significant challenges for the voting process, as inmates would vote from prison then the ballots would be sent to the various locations they resided in before imprisonment resulting in an expensive and time-consuming procedure.

JUDGMENT AND FINAL DECISION 

‘Prisoners, including, the two applicants, are effectively being denied their constitutionally protected right to register and vote, and that the applicants are entitled to the remedy they sought.’ 

Furthermore, convicts who have registered, either before or because of the subsequent order, except those expressly banned by the Electoral Act, are qualified to cast ballots in the upcoming general elections therefore, the Commission must make the necessary arrangements for them to vote.

LEGAL REASONING/RATIO DECIDENDI 

SIGNIFICANT PRECEDENTS OF STATUTES CITED

STATUTES 

• S 1(d) of the Constitution states that ‘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.’
• S 19 guarantees every person the right to make political decisions, including the ability to form and join political parties, as well as advocate for political causes or parties, and protects the right to vote by secret ballot, to hold public office if elected and to participate in free, fair and regular elections.
• S 5(1)(e) of the Electoral Commission Act ‘therefore provides that it is one of the functions of the Commission to (e) “. . . compile and maintain voters’ rolls by means of a system of registering of eligible voters by utilising data available from government sources and information furnished by voters.’
• S 7(1) of the 1988 Electoral Act provides ‘A person applying for registration as a voter must do so – (a) in the prescribed manner; and (b) only for the voting district in which that person is ordinarily resident.’
• S 2(a) of the Electoral Act requires interpretation of the Act to occur ‘in a manner that gives effect to the declarations, guarantees and responsibilities contained in the Constitution.’

CASES 

• In Minister of Justice v Hofmeyer Hoexter JA emphasized that prisoners enjoy essential common-law rights in addition to those established in legislation because incarceration does not erase or limit a person’s fundamental rights to those specifically provided for by the prison statutes. 
• In O’Brien v Skinner Burger CJ stated that the appellants were legally entitled to vote and were not disqualified by law, however they were unable to physically attend the polls or register by mail thus their voting rights were therefore infringed as they were denied access to absentee polls or any alternative method of voting despite being legally qualified voters. 
• In Minister of Interior and Another v Harris and Others affirmed that ‘a right requires an appropriate remedy’.

EXPLANATION OF THE COURTS REASONING BEHIND ITS DECISION 

The right to vote means that the state has the duty to plan elections, ensure secrecy in ballots, and set up a neutral committee to oversee elections and make sure they are free and fair. A basic constitutional value in South Africa has been adult voting on a common voters roll which has been important to achieving full citizenship, equality and inclusive nationhood in South Africa.

The vote upholds each citizen’s dignity and personality; thus, any restrictions on voting rights necessitate reason, and electoral rules should be construed to promote enfranchisement over disenfranchisement. Before the advent of constitutionalism, common law recognized the established principle that prisoners retain all personal rights and dignity, except when such rights are lawfully suspended or conflict with the conditions of their incarceration.

Neither the Electoral Act, the Commission Act, nor the regulations of the Commission provide for prisoners to register and vote, and the Commission has not undertaken any measures to enable their participation. As a result, prisoners are effectively disenfranchised without constitutional or statutory authority, amounting to a threatened breach of section 19 of the Constitution.

The term “ordinarily resident” is not a term of art because it is well-established in our legal system that the meaning of the word “residence” depends on its context and intended usage. ‘The purpose of the phrase “ordinarily resident” is to facilitate the electoral process’. As a result, the Act must be interpreted in a way that encourages enfranchisement while emphasizing the Commission’s functions in making registration and voting easier therefore, it is necessary to construe the term “ordinarily resident” in a way that serves both legislative and constitutional purposes.

Prisoner enfranchisement can be achieved through measures such as prison polling stations or special votes, given that prisoners are a closely monitored and easily identifiable population, the Commission should have little difficulty managing registration and voting efficiently.

Concerns that a concentrated prison electorate could exert disproportionate local influence are mitigated by the current proportional representation system based on national and provincial party lists while this issue may be more relevant for future local government elections, Parliament has sufficient time to address it before those elections take place.

The argument that accommodating prisoners would overburden electoral resources due to similar claims from other groups was rejected as speculative as the Court held that concrete, timely claims by a clearly defined group who are entirely prevented from voting cannot be denied because of hypothetical difficulties faced by others.

CORE PRINCIPLE

In the absence of a general legislation that legitimately restricts the right to vote, the state cannot deny prisoners the right to vote, and administrative hardship is insufficient grounds.

BIBLIOGRAPHY 

CASES

August and Another v Electoral Commission and Others [1999] ZACC 3, [1999] 4 BCLR 365 [6], [7], [8], [10], [11], [13], [16], [17], [18], [22], [24], [25], [27], [28], [29], [30], [36], [37]. 

Minister of Justice v Hofmeyer [1993] 3 SA 131. 

Minister of the Interior and Another v Harris and Others [1952] SA 769.

O’Brien v Skinner [1973] 414 US 524.

LEGISLATION 

Constitution Act 1996 s 1(d), 19. 

Electoral Act 1998, s 7(1), s7(1)(b), s 7(1)(a), s 2(a).

Electoral Commission Act 1996, s 5(1)(e).