MADLANGA J
minorities pegged on the Bill of Rights, but whose sole object is to preserve ill-gotten
privilege. I am talking about minority interests that are worthy of protection.
In sum, this discourse is a serious matter implicating no fewer than three
fundamental rights: the right to freedom of association; freedom of conscience; and the
right to dignity. On the respondents’ interpretation, all three of them are pitted against
the section 19(3)(b) right.
The Constitution is one composite whole. As such, it could not have been framed
to be contradictory. That is exactly why this Court has held that “[i]t is not to be
assumed that provisions in the same Constitution are contradictory”. 85 To the extent
that there may be tensions between its provisions, everything possible must be done to
harmonise them. On their own and without regard to other constitutional provisions,
the sections that are the source of freedom of association and rights that are cognate to
it, namely freedom of conscience and the right to dignity, on the one hand, and the
section 19(3)(b) right, on the other, can be read harmoniously. The respondents’
reading of section 19(3)(b) forces us to read in that one must stand for and hold political
office “through a political party”. With the potential infringement of the section 18
right and the correlative rights, that reading-in is contraindicated. This calls for a
reading of section 19(3)(b) that is consonant with section 18 and the other related rights.
All these are weighty factors in the interpretative exercise.
But that cannot be the end of the matter. It was suggested by the respondents
that a party proportional representation system is indicated by a number of other
provisions in the Constitution, including Schedule 6 to it. Is that indeed so? Or, is a
reading of section 19(3)(b) that does not lead to a denial of the right to freedom of
See also Oriani-Ambrosini v Sisulu, Speaker of the National Assembly [2012] ZACC 27; 2012 (6) SA 588 (CC);
2013 (1) BCLR 14 (CC) at para 43, where Moseneke DCJ says:
“Ours is a constitutional democracy that is designed to ensure that the voiceless are heard, and
that even those of us who would, given a choice, have preferred not to entertain the views of the
marginalised or the powerless minorities, listen.”
85
S v Rens [1995] ZACC 15; 1996 (1) SA 1218 (CC); 1996 (2) BCLR 155 (CC) at para 17.
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