MADLANGA J
The Constitution deliberately did not make proportional representation,
including party proportional representation, a founding value. If it had made party
proportional representation a founding value, we would not be having this interpretative
debate. Add to this the fact that – although the interim Constitution and the Constitution
already had in place a system of electing political office bearers in accordance with
party lists – our constitutional order kept that system alive only up to the first election
under the Constitution.103 Why was that system not kept in place indefinitely? It ought
not to have been part of transitional arrangements under the Constitution. It ought to
have been retained so that – instead of being required to create an electoral system – all
that the Legislature would be left to do would be to provide nuts and bolts on how that
existing system would work.
So, the reliance on sections 57(2), 178(1)(h), 193(5) and 236 is not enough to
detract from the applicants’ case.
Section 157(2)(a)
A section that appears to offer support for the respondents’ interpretation better
than the rest is section 157(2)(a) of the Constitution.104 The question is: is that apparent
support sustainable? The respondents did not rely on this section in the context of what
I am about to address. As a result, after the oral hearing, supplementary directions were
issued calling upon the parties and amici to address the question—
103
See the discussion in [65] to [69] above.
104
Section 157(2) of the Constitution provides:
“The election of members to a Municipal Council as anticipated in subsection (1)(a) must be in
accordance with national legislation, which must prescribe a system—
(a)
of proportional representation based on that municipality’s segment of the
national common voters roll, and which provides for the election of members
from lists of party candidates drawn up in a party’s order of preference; or
(b)
of proportional representation as described in paragraph (a) combined with a
system of ward representation based on that municipality’s segment of the
national common voters roll.”
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