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

• Jurisdiction: South Africa
• Citation: 2005 (3) SA 280 (CC)

Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and Others
2005 (3) SA 280 (CC)

2005 (3) SA p280

Citation	2005 (3) SA 280 (CC)
Case No	CCT 03/2004
Court	Constitutional Court
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
Heard	February 25, 2004
Judgment	March 3, 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.

Flynote : Sleutelwoorde E

Constitutional law — The Constitution — Values enunciated in s 1 of Constitution — Although those values inform and give F substance to all provisions of Constitution, they do not in themselves give rise to discrete and enforceable rights.

Constitutional law — Human rights — Enforcement of — Remedies — Order that is 'just and equitable' — Constitution, s G 172(1) — Constitutional Court competent, in appropriate circumstances, to make order that creates limited exception to provisions of statute for short period of time.

Constitutional law — Human rights — Protection of — Justification of limitation of in terms of s 36 of H Constitution — Onus — Nature of onus on State discussed — Where justification depending on factual material, party relying on justification to establish facts on which justification depends — But where justification depends on policies directed to legitimate governmental concerns, party relying thereon should place before Court sufficient I information as to policy being furthered, reasons for that policy and why it was considered reasonable in pursuit of that policy to limit a constitutional right — Failure to place such information before Court might be fatal to justification claim — Possible, however, that in some cases absence of such information might not be fatal and Court able to uphold justification based on common sense and judicial knowledge. J

2005 (3) SA p281

Constitutional law — Human rights — Right to vote — Provisions in ss 8(2)(f) and 24B(1), A (2) of Electoral Act 73 of 1998 disenfranchising prisoners serving sentences of imprisonment without option of fine — Such provisions inconsistent with right to vote entrenched in s 19(3)(a) of Constitution — State failing to establish justification of such provisions in terms of s 36 of Constitution on logistical and cost grounds — Also failing to establish justification on policy grounds, namely importance of denouncing crime and to communicate to public that rights citizens have B related to their duties and obligations as citizens — Court declaring such provisions unconstitutional and invalid and granting consequential relief to effect that affected prisoners to be afforded opportunity of registering as voters and of voting in forthcoming elections. C

Headnote : Kopnota

The values enunciated in s 1 of the Constitution of the Republic of South Africa Act 108 of 1996 are of fundamental importance. They inform and give substance to all the provisions of the Constitution. They do not, however, give rise to discrete and enforceable rights in themselves. This is clear not only from the language of s 1 itself, but also from the way the Constitution is structured and in particular the provisions of ch 2. (Paragraph [21] at 290B.) D

Section 172(1) of the Constitution states that a court, in a case in which the validity of a statutory provision is challenged on the ground that it has infringed one of the fundamental rights enshrined in the Constitution, may make any order that is 'just and equitable'. It then includes within that the power to make an order suspending the E effect of a declaration of invalidity, which effectively permits the Court to order that an unconstitutional state of affairs continue for a fixed period. In the light of this, it would seem strange if the terms 'just and equitable' were not broad enough to permit a court to make an order which has the effect of creating a limited exception to the provisions of a statute for a short period of time in appropriate F circumstances. The greater power to permit the continued infringement of the Constitution must imply the lesser power to sanction an exception to the application of an otherwise mandatory statutory provision for a limited period of time to protect a constitutional right. This must of course be done within the overriding considerations of justice and equity. These considerations must be understood in the light of the constitutional imperative of providing appropriate relief G to successful litigants. It would be consistent with this imperative for the Constitution to be interpreted to empower this Court to create an exception to the operation of a mandatory statutory provision to enable successful litigants to enjoy their constitutional rights. In the light of the aforegoing, the Constitutional Court has the competence to order consequential relief in the form of an exception to the operation of a mandatory statutory provision. (Paragraph [77] at 306D - H.) H

The first to third respondents had obtained leave to approach the Constitutional Court directly for an order, first, declaring s 8(2)(f) and the phrase 'and not serving a sentence of imprisonment without the option of a fine' in s 24B(1), and s 24B(2) of the Electoral Act 73 of 1998 to be unconstitutional and invalid; and, secondly, an order directing the fourth and fifth respondents (the Electoral Commission and the minister of Correctional Services) to I ensure that all prisoners who are or will be entitled, in terms of the Electoral Act, to vote in the forthcoming elections, are afforded a reasonable opportunity to register as voters for and to vote in the forthcoming elections. These provisions of the Electoral Act had the effect of disenfranchising prisoners serving sentences of imprisonment without the J

2005 (3) SA p282

option of a fine by precluding them from registering as voters and voting while in prison. Unsentenced prisoners, and prisoners A incarcerated because of their failure to pay fines imposed on them, retained the right to register and vote. It was contended that these provisions of the Electoral Act infringed the right of such prisoners to equality, as enshrined in s 9 of the Constitution, and the right to vote, as provided for in s 19(3)(a) of the Constitution. Counsel for the Minister of Home Affairs (the applicant in the present B proceedings) accepted that the provisions in question limited the rights of prisoners serving sentences of imprisonment without the option of a fine, but contended that the limitation was justifiable in terms of s 36 of the Constitution. It was contended by the first to third respondents that the Minister of Home Affairs bore the onus of proving that the admitted limitation of the right to vote was reasonable and justifiable and that, if this could not be established, the application had to succeed. C

Held, that counsel for the Minister had correctly accepted that the provisions in question limit the voting rights of convicted prisoners serving sentences of imprisonment without the option of a fine. (Paragraph [32] at 293B.)

Held, that the onus of proving that the admitted limitation of the right to vote was reasonable and justifiable was an onus of a special type. It was not the conventional D onus of proof as it was understood in civil and criminal trials where disputes of fact had to be resolved. It was rather a burden of justifying a limitation where that became an issue in a s 36 analysis. (Paragraph [34] at 293E.)

Held, further, that this called for a different enquiry to that conducted when factual disputes had to be resolved. In a justification analysis facts and policy were often intertwined. There E might for instance be cases where the concerns to which the legislation was addressed were subjective and not capable of proof as objective facts. A legislative choice was not always subject to courtroom fact-finding and might be based on reasonable inferences unsupported by empirical data. When policy was in issue it might not be possible to prove that a policy directed to a particular concern would be F effective. It did not necessarily follow from this, however, that the policy was not reasonable and justifiable. If the concerns were of sufficient importance, the risks associated with them sufficiently high, and there was sufficient connection between means and ends, that might be enough to justify action taken to address them. (Paragraph [35] at 294B - C.)

Held, further, that, where justification depended on factual material, the party relying on justification had to establish the facts G on which the justification depended. Justification might, however, depend not on disputed facts but on policies directed to legitimate governmental concerns. If that were the case, the party relying on justification should place sufficient information before the Court as to the policy that was being furthered, the reasons for that policy and why it was considered reasonable in pursuit of that policy to limit a H constitutional right. That is important, for if this were not done the Court might be unable to discern what the policy was, and the party making the constitutional challenge would not have the opportunity of rebutting the contention through countervailing factual material or expert opinion. A failure to place such information before the Court, or to spell out the reasons for the limitation, might be fatal to the justification claim. There might, however, be cases where despite the I absence of such information on the record, a court was nonetheless able to uphold a claim of justification based on common sense and judicial knowledge. (Paragraph [36] at 294D - F.)

Held, further, that ultimately what was involved in...