Previous 8 / 39 Next

SACHS J and all prisoners are entitled to register as voters on the national common voters’ roll and to vote in the forthcoming general elections, and requiring the respondents to make all necessary arrangements to enable them and all prisoners to do so. The Court set the matter down for expedited hearing on the basis that the application for leave to appeal and the merits of the proposed appeal would be argued simultaneously. [11] At the hearing in this Court, counsel for the applicants contended that the right to vote of all persons, including prisoners, was entrenched in the Constitution and that all prisoners’ rights, save those necessarily taken away by the fact of incarceration, were protected by the common law and the Constitution. He argued that the Commission was accordingly under a duty to facilitate the registration of prisoners who were eligible to vote, as well as to create conditions enabling them to vote, and that the Court should issue a declaration affirming the rights of applicants and all prisoners to register and vote and an order directing the respondents to make the necessary arrangements for these rights to be realised. [12] The Centre for Applied Legal Studies12 was admitted as an amicus curiae in order to introduce a new argument. They quoted statistics to show that on 31 December 1998, 37% of all prisoners, that is 54 121 out of 146 278, were unsentenced prisoners awaiting trial. Further, at 15 February 1999, more than 20 000 awaiting trial 12 The Centre for Applied Legal Studies (CALS) is a legal research and advocacy centre located at the University of the Witwatersrand in Johannesburg. It conducts research and engages in litigation, training and advocacy for the promotion of human rights and democracy in South Africa. CALS was granted leave by the Court to appear as an amicus curiae on behalf of the Penal Advocacy Network (PAN). As its name suggests, PAN is a network of organisations committed to penal reform and prisoner support. Included amongst its members are Lawyers for Human Rights, the Centre for the Study of Violence and Reconciliation, the Human Rights Committee and the National Institute for the Prevention of Crime and Rehabilitation of Offenders (NICRO). 8

Select target paragraph3

● ● ●

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

Primary Documents

August v. Electoral Commission of South Africa.pdf
English
Download View

Election Judgments - IFES

Select target paragraph3

August v Electoral Commission of South Africa

Primary Documents

Notifications