SACHS J
Court to decide which categories of prisoners, if any, should be deprived of the vote,
and which should not. The Commission's duty is to manage the elections, not to
determine the electorate; it must decide the how of voting, not the who. Similarly the
task of this Court is to ensure that fundamental rights and democratic processes are
protected.
[34]
It is instructive to look at the situations in which the two applicants find
themselves. The first applicant voted in the 1994 elections when he was already a
prisoner. The 1996 Constitution guaranteed his right to vote in unqualified terms.
Parliament has not sought to limit that right at all. He is informed that his right to vote
remains intact and that the registration centres are as open to him as to anybody else.
The only problem is that he is locked up. That a right requires an appropriate remedy
was trenchantly affirmed by Centlivres CJ in Minister of the Interior and Another v
Harris and Others:33
“As I understand Mr Beyers’ argument the substantive right would, in the event of
such an Act having been passed, remain intact but there would be no adjective or
procedural law whereby it could be enforced: in other words the individual concerned
whose right was guaranteed by the Constitution would be left in the position of
possessing a right which would be of no value whatsoever.
To call the rights
entrenched in the Constitution constitutional guarantees and at the same time to deny
to the holders of those rights any remedy in law would be to reduce the safeguards
enshrined in sec. 152 to nothing. There can to my mind be no doubt that the authors
of the Constitution intended that those rights should be enforceable by the Courts of
Law. They could never have intended to confer a right without a remedy. The
remedy is, indeed, part and parcel of the right. Ubi jus, ibi remedium.”
33
1952 (4) SA 769 (A) at 780 -1.
33
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents