MADLANGA J
The two issues
The two issues identified above have been pleaded as being discrete. It seems to
me that in the context of this matter the freedom of association challenge is inextricably
linked to what the content of the section 19(3)(b) right really is. That is so because the
applicants’ plea is not only about adult citizens not being coerced to be members of
political parties. It is about not being so coerced so that they may exercise the
section 19(3)(b) right. And they can exercise that right in this fashion only if it is
guaranteed by section 19(3)(b). Thus on its own, the freedom of association challenge
begs the question. One cannot avoid determining the content of the section 19(3)(b)
right. That is the end of the freedom of association challenge as a standalone challenge.
But – as we will see later – that does not mean freedom of association becomes
irrelevant to the exercise of determining the content of section 19(3)(b).
Before I proceed to deal with the interpretative exercise, let me mention that a lot
was said about which electoral system is better, which system better affords the
electorate accountability, etc. That is territory this judgment will not venture into. The
pros and cons of this or the other system are best left to Parliament which – in terms of
sections 46(1)(a) and 105(1)(a) of the Constitution – has the mandate to prescribe an
electoral system. This Court’s concern is whether the chosen system is compliant with
the Constitution.21
Content of section 19(3)(b)
Subsections 19(1) and 19(3)(b)
Section 19(3)(b) is part of closely related rights that the Constitution deliberately
groups together as “political rights”. They are so interconnected that they have to be
read together. For effect, let me quote section 19 in full:
21
This Court in United Democratic Movement v President of the Republic of South Africa [2002] ZACC 21; 2003
(1) SA 495 (CC); 2002 (11) BCLR 1179 (CC) (UDM I) at para 11 explained that “what has to be decided is not
whether the disputed provisions are appropriate or inappropriate, but whether they are constitutional or
unconstitutional”.
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