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SACHS J trial later this year on charges of fraud. Acting in their own interest and on behalf of all prisoners, the applicants sought an undertaking from the Commission that prisoners would be able to take part in the elections. [7] It is not necessary to canvass the extensive correspondence conducted with the respondents on their behalf by the Legal Resources Centre (the LRC) save to say that the applicants asserted their claims even before the 1998 Electoral Act was promulgated on 16 October 1998.11 When no satisfactory response was received from the Commission, the applicants launched an application on 23 December 1998 for a declaration and orders enabling them and other prisoners to register and vote. On 21 January 1999, the Commission wrote to the LRC in the following terms: “We confirm that the Commission will not oppose the application, save to make representations to persuade the court to pronounce itself on the issues raised in our letter and further that the Commission will abide the decision of the said Court. In that regard, the Commission undertakes to do everything within its capacity to enable prisoners to register and to vote should the Court's decision be to that effect.” The Commission therefore made it plain that it undertook, within its capacity, to enable prisoners to register and vote should a court so order. [8] The matter came before Els J in the Transvaal High Court on 22 February 1999 and judgment was delivered the next day. Relying heavily on the affidavit filed by the second respondent, the learned judge stated that in his view there had been neither a 11 As early as 22 September 1998, the LRC had sent a letter to the chief electoral officer asking the Commission whether prisoners would be allowed to participate in the 1999 elections and to supply reasons for any such decision. The Commission responded in a letter, dated 5 October 1998, which described the constitutionally prescribed functions and mandate of the Commission, its duties and functions under the Electoral Commission Act, 51 of 1996, but failed to address the issue of what (if any) arrangements were being made to allow prisoners to apply for registration and to vote. It was not until 8 December 1998, that the chief electoral officer responded to the LRC’s request by unequivocally stating in the letter that the Commission had 6

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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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