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SACHS J similar argument was robustly rejected by Marshall J in O'Brien.29 On the one hand we have a determinate class of persons, subject to relatively easy and inexpensive administrative control, who have consistently asserted their claims, who are physically prevented from exercising their voting rights whatever their wishes are and who have been given a specific undertaking by the first and second respondents that should the Court so direct, the necessary arrangements would be made for them to register and vote. On the other hand there are speculative notional claims by a variety of other persons who could point to difficulty rather than impossibility of enjoyment of rights, and who have not come timeously to court to assert their claims. We cannot deny strong actual claims timeously asserted by determinate people, because of the possible existence of hypothetical claims that might conceivably have been brought by indeterminate groups. [31] We recognise that, in a country like ours, racked by criminal violence, the idea that murderers, rapists and armed robbers should be entitled to vote will offend many people. Many open and democratic societies impose voting disabilities on some categories of prisoners.30 Certain classes of prisoners were in fact disqualified by 29 Above at para 21. 30 Many countries disqualify all or some classes of sentenced prisoners from voting. In France, certain crimes are identified which carry automatic forfeiture of political rights; in Greece, trial courts are permitted to order such forfeiture on a case by case basis; in Germany, prisoners convicted of offences which target the integrity of the German state or its democratic order forfeit the right to vote. A more common trend is to specify that the length of sentence being served shall determine the forfeiture of the right. In Sri Lanka it is 6 months, in Canada 2 years, in New Zealand 3 years, in Australia 5 years. In the United Kingdom and Japan all persons serving sentences are excluded, while in Denmark, Ireland, Israel, Sweden and Switzerland, all prisoners can vote. 31

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August v Electoral Commission of South Africa

Judgment

Question Presented: Whether prisoners retained their constitutional right to vote under the 1996 Constitution, and, if so, whether the IEC was obligated to take active steps to facilitate their registration and voting, particularly in the absence of any parliamentary legislation that explicitly disenfranchised them.

Alleged Acts: Arnold Keith August and another were prisoners incarcerated in South African prisons. Following the announcement of general elections for June 2, 1999, the Independent Electoral Commission (IEC) refused to facilitate the registration of prisoners as voters or to make arrangements for them to vote. The IEC argued that it would only do so if ordered by the Constitutional Court, citing logistical difficulties, security concerns, and characterizing prisoners as "authors of their own misfortunes." The applicants sought confirmation from the Court that prisoners retained their right to vote and that the IEC was consequently obligated to make all reasonable arrangements for their registration and voting.

Procedural history: The applicants initially brought their case before the Transvaal High Court. In that court, Els J held that the IEC had no legal obligation to ensure that prisoners could register and vote. The applicants then appealed this decision directly to the Constitutional Court of South Africa.

Summary: August v Electoral Commission is a landmark South African Constitutional Court decision that established that the right to vote is a foundational constitutional value that cannot be restricted by administrative action—only by Parliament through a law of general application that satisfies the Section 36 limitations test. The case confirmed that prisoners retain their right to vote in the absence of express legislative disenfranchisement and ordered the IEC to facilitate their registration and voting. For disability voting rights, the case is notable for its discussion of the Electoral Act's "unsound mind" disqualifications (Section 8(2)(c)–(d)) and the special vote provisions for physical disability (Section 33), both of which form part of South Africa's legal framework governing the intersection of disability, mental capacity, and the right to vote. The case underscores that any restriction on the right to vote—whether based on incarceration, mental capacity, or disability—must be justified as reasonable and justifiable under the Constitution.

Conclusion: The Constitutional Court, in a unanimous judgment delivered by Justice Sachs, held in favor of the applicants. The Court emphasized that "universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order." The right to vote is therefore a core right, not a privilege. The Court analyzed Section 8(2) of the Electoral Act and noted that Parliament had expressly listed categories of persons disqualified from voter registration. This list included those declared "of unsound mind" but did not include prisoners. The Court reasoned that the specific inclusion of some categories and the clear omission of prisoners indicated that Parliament did not intend to disenfranchise them. The Court ruled that the power to limit or remove the right to vote rests solely with Parliament, and any such limitation must be enacted through a law of general application. As no such law had been passed to disenfranchise prisoners, they retained their full constitutional right to vote under Section 19(3). Neither the IEC nor the Court itself possessed the authority to disenfranchise an entire category of voters. The Court's analysis of Section 8(2) of the Electoral Act explicitly acknowledged the statutory disqualification of persons declared "of unsound mind or mentally disordered" by the High Court, as well as those detained under the Mental Health Act. These provisions represent South Africa's historical use of mental capacity tests as a basis for disenfranchisement—a practice that remains in tension with the UN Convention on the Rights of Persons with Disabilities (CRPD). By affirming universal adult suffrage as a foundational constitutional value and holding that disenfranchisement requires specific parliamentary legislation, the case created a strong constitutional precedent that any category of voter—including persons with disabilities—can only be deprived of the right to vote through a law of general application that meets the reasonableness and justifiability standard of Section 36.

Legal Issue(s)

Elections as a Fundamental Right
Voter Registration
Voters' Rights

Applicable Law(s): Constitution of the Republic of South Africa and the Electoral Act 73 of 1998

Region: Africa

Country: South Africa

Language of Decision

English

Court: Constitutional Court

Election Type: General

Date of decision: Apr 1, 1999

Geolocation

Latitude: -26.1865

Longitude: 28.0393

: Geolocation

Link: https://www.saflii.org/za/cases/ZACC/1999/3.pdf

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August v. Electoral Commission of South Africa.pdf
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August v Electoral Commission of South Africa

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