MADLANGA J
The frustration or disappointment of the losing presidential hopeful and his or her
supporters could conceivably have a wide range of prejudicial consequences for
Members who are known to have contributed to the loss. To allow Members of the
National Assembly to vote with their conscience and choose who they truly believe to
be the best presidential material for our country, without any fear of reprisals, a secret
ballot has been identified as the best voting mechanism.” 81
If all members of the National Assembly were free to vote as they pleased
regardless of how politically sensitive an issue might be and without any risk of reprisals
from their political parties, litigation on this issue would not have been necessary. It is
exactly because the opposite prevails that the litigation was instituted. This would not
have been an issue at all for someone not subject to encumbrances of party politics;
someone not owing her or his membership of the National Assembly to a political party.
Ms Revell typifies that kind of person. What this demonstrates is that the question of
the exercise of the free will of members of the legislatures does arise; the question of
voting in accordance with one’s conscience. Is this an insignificant matter? Definitely
not.
In sum, choosing to associate is an exercise of the right to freedom of association.
Choosing to dissociate from that which you earlier associated with is also an exercise
of that right. Choosing not to associate at all too is an exercise of the right. A restraint
on any of these choices is a negation of the right.
It is axiomatic then that if the state compels an individual to associate when she
or he does not want to, that limits the right to freedom of association. That must mean
the reading of section 19(3)(b) contended for by the respondents results in a denial of
the right to freedom of association.
81
Id at paras 73-4.
27
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