MADLANGA J
Thus any continued employment of an exclusive party proportional
representation system can no longer be sourced from items 6(3)(a) and 11(1)(a); not
when the first election under the Constitution has long come and gone. What this Court
said in UDM I is instructive. It said the party proportional representation system was
“to remain in place until the second election which [was] to be regulated by the
legislation envisaged in sections 46(1)(a) and 105(1)(a) of the Constitution”.93 The
“second” election referred to in the quote was the second in a democratic South Africa.
But that was the first election under the Constitution, the preceding election having been
conducted under the interim Constitution.
Whatever the motivation, the exclusive party proportional representation system
first stipulated expressly in Schedule 2 to the interim Constitution and later – also
expressly – in items 6(3)(a) and 11(1)(a) to the Constitution was to apply only up to a
specified point. If a party proportional representation system was to apply beyond that
point, it would have to be in terms of constitutionally compliant legislation envisaged
in sections 46(1)(a)94 and 105(1)(a)95 of the Constitution. As we know, a system of
party proportional representation continues under the Electoral Act. Its compliance
with the Constitution is what we must determine through a process of interpretation.
The fact that the Constitution no longer makes express provision for an exclusive party
proportional representation system when it previously did must add something to that
process. If it does not, why else would the Constitution have jettisoned the express
insistence on exclusive party lists in the first two elections? A fully functional edifice
that provided for exclusive party proportional representation was in place and worked
perfectly for the first two democratic elections. Why dismantle it, if exclusive party
proportional representation is what the Constitution requires? I think what this is
indicating is that section 19(3)(b), read with section 18 and the other cognate rights,
must be given its full effect. And I have indicated above what that effect must be.
93
Id at para 86.
Section 46(1)(a) provides that “[t]he National Assembly consists of no fewer than 350 and no more than 400
women and men elected as members in terms of an electoral system that . . . is prescribed by national legislation”.
94
Section 105(1)(a) provides that “[a] provincial legislature consists of women and men elected as members in
terms of an electoral system that . . . is prescribed by national legislation”.
95
32
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