Arnold Keith August and Veronica Pearl Sibongile Mabutho v The Electoral Commission and Others

The applicants were prisoners: the first applicant was a convicted prisoner serving a sentence for fraud, while the second applicant was an awaiting-trial prisoner charged with fraud. They sought an order compelling the Electoral Commission to make arrangements enabling them and all other prisoners to register and vote in the general elections scheduled for 2 June 1999. In the 1994 elections under the interim Constitution, prisoners were permitted to vote except those convicted of murder, robbery with aggravating circumstances, rape, or attempts to commit such offences. The 1996 Constitution guaranteed universal adult suffrage without express disqualifications. The 1998 Electoral Act did not disqualify prisoners from voting but made no specific provision for their registration or voting. The applicants corresponded with the Commission from September 1998 requesting arrangements for prisoners to vote, but received no satisfactory response. The Commission stated it had made no arrangements for prisoners to vote. The High Court (Els J) dismissed the application on 23 February 1999, holding that prisoners' predicament was of their own making and the Commission had no obligation to make special arrangements. The applicants sought leave to appeal to the Constitutional Court.

• Whether prisoners retain the constitutional right to vote in the absence of legislation expressly disqualifying them
• Whether the Electoral Commission has a duty to make arrangements to enable prisoners to register and vote
• Whether the failure to make such arrangements constitutes an infringement of prisoners' constitutional rights
• The proper interpretation of 'ordinarily resident' in the Electoral Act as it applies to prisoners
• Whether the predicament of imprisonment constitutes a self-imposed barrier justifying disenfranchisement

The application for leave to appeal was granted and the appeal was allowed. The order of Els J was set aside. The Court declared that all prisoners who were incarcerated during each and every registration period between November 1998 and March 1999, and not excluded by section 8(2) of the Electoral Act, are entitled to register as voters. All prisoners who are registered and imprisoned on election day are entitled to vote. The respondents were ordered to make all reasonable arrangements to enable such prisoners to register and vote. The first respondent was required by 16 April 1999 to file an affidavit setting out how it would comply with the order. The first respondent was ordered to pay the applicants' costs in both the High Court and Constitutional Court, including costs for two counsel.

In the absence of legislation expressly disqualifying prisoners from voting, they retain the unqualified constitutional right to vote under section 19(3)(a) of the Constitution. The right to vote imposes positive obligations on the state and the Electoral Commission to take reasonable steps to enable eligible voters, including prisoners, to register and vote. Where the state physically prevents persons from accessing polling stations (as with prisoners), the failure to provide alternative arrangements for registration and voting constitutes an effective denial of the constitutional right to vote and is unconstitutional. The phrase 'ordinarily resident' in electoral legislation must be interpreted purposively to facilitate both electoral administration and constitutional objectives of enfranchisement; for prisoners incarcerated during registration periods, the prison constitutes their ordinary residence. Prisoners cannot be disenfranchised on the basis that their incarceration is self-imposed; rights cannot be denied based on administrative convenience or resource constraints when the affected group is determinate and the claims are timeous and specific. Legislation dealing with the franchise must be interpreted in favor of enfranchisement rather than disenfranchisement.

The Court noted but did not decide whether Parliament could constitutionally disqualify certain categories of prisoners from voting under a law that meets the requirements of section 36 (the limitations clause). Sachs J observed that many open and democratic societies impose voting disabilities on some prisoners, and noted that the interim Constitution had permitted such limitations. The judgment should not be read as preventing Parliament from disenfranchising certain categories of prisoners through appropriate legislation. The Court also observed that treating prisons as places of ordinary residence would not significantly distort outcomes in the forthcoming national and provincial elections conducted by proportional representation, though this might have more significance for ward-based local government elections to be held 18 months later, giving Parliament opportunity to consider the issue. The Court noted that it had received statistics showing that 37% of prisoners were awaiting trial, and over 20,000 had been granted bail they could not afford (more than 8,000 with bail of R600 or less), raising potential equality issues, but found it unnecessary to decide the amicus curiae's argument about unfair discrimination on grounds of poverty. The Court also noted it was not addressing the position of persons detained in police cells as no relief had been sought in that regard and insufficient information was available.

This landmark judgment affirmed universal adult suffrage as a foundational constitutional value in South Africa's democracy. It established that the right to vote is not merely a political right but a badge of dignity and personhood, declaring that 'everybody counts' regardless of social status. The case reinforced the principle that prisoners retain all rights not expressly removed by law or necessarily inconsistent with incarceration, extending this common law principle into the constitutional era. It placed positive obligations on the state and Electoral Commission to facilitate the exercise of voting rights, not merely to refrain from interference. The judgment demonstrated the Constitution's transformative nature by protecting the rights of a marginalized and unpopular group. It established that rights require remedies (ubi jus, ibi remedium) and that practical difficulties cannot justify denial of constitutional rights. The case is significant for its methodology in interpreting statutory terms like 'ordinarily resident' purposively to promote constitutional values of enfranchisement. It also clarified that while Parliament might potentially limit prisoners' voting rights under section 36, such limitations require express legislation that can be justified as reasonable in an open and democratic society.