Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Madala J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
• Judgment Date: 03 March 2004
• Citation: 2005 (3) SA 280 (CC)
• Docket Number: CCT 03/2004
• Hearing Date: 25 February 2004
• Counsel: V Soni SC (with him P Ngutshana) for the applicant. I V Maleka SC (with him N Fourie) for the first to third respondents.
• Court: Constitutional Court

Chaskalson CJ:

[1] This application is concerned with the right to vote enshrined in s 19(3) of the Constitution. We have been called upon to deal with it as a matter of urgency on the eve of the elections which are to be held on 14 April 2004, some seven weeks after argument was addressed to us. C

[2] The dispute arises out of the Electoral Laws Amendment Act [1] (the Amendment Act) which amends the Electoral Act. [2] The Amendment Act was promulgated on 6 November 2003 and brought into force on 17 December 2003. [3] It introduced provisions into the Electoral Act which in effect deprive convicted prisoners D serving sentences of imprisonment without the option of a fine of the right to participate in elections during the period of their imprisonment. The crisp point in this application is the constitutionality of these provisions.

[3] The proceedings have not taken a normal course. Litigation commenced in the Cape High Court (the High Court) on 23 December E 2003, six days after the Amendment Act was brought into force. An urgent application was lodged on that date in the High Court by the National Institute for Crime Prevention and the Reintegration of Offenders (Nicro) and two convicted prisoners serving sentences of imprisonment, for an order declaring the provisions that deprive F serving prisoners of the right to participate in the upcoming elections to be inconsistent with the Constitution and invalid.

[4] The Minister of Home Affairs (the Minister) only lodged an answering affidavit in the High Court on 29 January 2004, and on the following day he applied urgently to this Court, through the State G Attorney, for an order allowing the dispute in the matter pending in the High Court to be brought directly to this Court for determination. Nicro and the two convicted prisoners supported the application. There is no satisfactory explanation why this urgent matter was allowed to stagnate in the High Court for over a month. It should have been dealt H with promptly. If this had happened a decision could have been given early in

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January and if the matter had then to come to this Court, it could have been disposed of without the extraordinary difficulties that A have arisen as a direct consequence of this delay.

[5] To the knowledge of the parties, the Constitutional Court was not in session on 30 January 2004. Following the lodging of the application for direct access the Registrar, on instructions of the Chief Justice, wrote to the State Attorney on 3 February 2004, as follows: B

1.

The delay in this matter is due to the delay on the part of the respondents in filing their answering affidavits. Some six weeks have passed since the application was served on the respondents and second respondent's affidavit has still not yet been lodged. If that affidavit is lodged expeditiously, and the applicant's replying affidavit (if any) is also lodged expeditiously, C it should be possible for the matter to be disposed of in the Cape High Court during February. If either party wishes to take the matter further after that, the same papers could be used, and a date allocated within a week of the arguments being lodged in the Constitutional Court.

2.

The Constitutional Court is in the process of moving from its existing premises to new premises on Constitution Hill. That move will D only be completed on 13 February.

3.

The papers presently before us were only completed yesterday when the affidavits in the Cape High Court were lodged with the Registrar. Arrangements have been made for the papers to be sent to those Judges who do not have access to their Chambers in Johannesburg. E

4.

As the parties wish the case to be disposed of urgently they should make arrangements now for the preparation and exchange of written arguments which will be necessary for an expeditious hearing in the High Court. That would be the desirable course to follow.

5.

An application for direct access can only be granted on request by the Court itself. If there are differences between the Judges, those will have to be resolved before a decision can be taken. The Court is F reluctant to deal with matters without a judgment of another court, and you should not assume that direct access will be granted.

6.

No communication has yet been received from the attorneys for the respondents with regard to the application for direct access. The documents that have been lodged will be referred to the Judges of the Constitutional Court for their consideration. It is essential, G however, that the communication referred to in para 16 of the founding affidavit be communicated to the Registrar without any further delay.'

[6] The legal representatives of Nicro and the two prisoners took the view that it was desirable for the matter to be dealt with by the High Court and applied for a hearing date there, asking that the H matter be dealt with urgently. This was the correct course to take. [4] The matter

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should, however, have been dealt with early in January and not delayed for over a month. The A Minister opposed the application and asked the High Court to stay the proceedings before it until his application for direct access to this Court had been determined.

[7] This resulted in a further delay. The Judge who dealt with the application in the High Court concluded that a decision by her on the merits of the application would undermine the application for B direct access. She accordingly reserved judgment on the merits of the dispute and postponed the application pending a decision by this Court whether to grant direct access. This proved to be doubly unfortunate. First, it delayed the process in the High Court. Secondly, owing to an unexpected sad death in her family, she would not have been in a position to deliver the reserved judgment on the merits promptly if C this Court had refused direct access. This Court, which convened on 16 February 2004 for the current term, refused the application for direct access. However, in the light of the facts set out above it was obliged to recall its order, grant the application, and deal with the matter urgently as a Court of first and final instance. D

[8] We heard the application on 25 February 2004. It raises important issues on which I would have preferred to have had more time to formulate a judgment. Unfortunately that is not possible because further delay would frustrate any relief that this Court might grant to the applicants. E

[9] For the purposes of this judgment, the parties will be referred to as they were in the High Court application. Thus Nicro and the two prisoners serving sentences without the option of a fine who brought the initial application in the High Court will be cited as the applicants, and the Minister of Home Affairs, the Electoral Commission F (the Commission) and the Minister of Correctional Services will be cited as the respondents.

Background to the impugned provisions

[10] Section 1 of the Electoral Act provides that a 'voter' is a South African citizen who is 18 years old or older and whose name G appears on the voters' roll. [5] Section 1 of that Act, read with s 5, defines 'voters' roll' as the national common voters' roll compiled and maintained by the chief electoral officer. It appears from s 8 of the Act that a person's name will only be entered on the voters' roll once that person has registered as a voter. [6] H

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[11] Prior to its amendment, the Electoral Act contained no provisions dealing specifically with prisoners serving sentences of A imprisonment. If this had remained so, in terms of the decision of this Court in August and Another v Electoral Commission and Others, [7] the Commission would have been obliged to allow prisoners to register as voters and to vote in the upcoming elections and would also have been obliged to provide the necessary facilities to enable this to be done. B

[12] The changes introduced into the Electoral Act by the Amendment Act include ss 8(2)(f) and 24B(1) and (2). They read as follows:

'8(2) The chief electoral officer may not register a person as a voter if that person - C

. . .

(f)

is serving a sentence of imprisonment without the option of a fine.'

'24B(1) In an election for the National Assembly or a provincial legislature, a person who on election day is in prison and not serving a sentence of imprisonment without the option of a fine and whose name appears on the voters' roll for another voting district, is deemed for D that election day to have been registered by his or her name having been entered on the voters' roll for the voting district in which he or she is in prison.'

'24B(2) A person who is in prison on election day may only vote if he or she is not serving a sentence of imprisonment without the option of a fine.' E

[13] In effect, these changes disenfranchised prisoners serving sentences of imprisonment without the option of a fine by precluding them from registering as voters and voting whilst in prison. Unsentenced prisoners, and prisoners incarcerated because of their failure to pay fines imposed on them, retained the right to register and vote. F

[14] Special provision was made by the Amendment Act to regulate the voting of those prisoners who retained the right to vote. Under s 8, a person's name may only be entered on the voters' roll for the voting district in which that person is ordinarily resident. Where a prisoner is 'ordinarily resident' is regulated by two deeming provisions. For registration purposes, a prisoner is regarded to be G 'ordinarily resident' in the voting district where that person normally lived when not imprisoned. [8] For voting purposes, s 24B(1) stipulates that a prisoner who is not serving a sentence of imprisonment without the option of a fine and whose name appears...