August and Another v Electoral Commission and Others

The applicants were prisoners: one a sentenced prisoner serving a sentence for fraud, and the other an unsentenced awaiting-trial detainee. Acting in their own interests and on behalf of all prisoners, they sought to register and vote in the 1999 general elections. The Electoral Commission had made no arrangements to enable prisoners to register or vote, citing logistical and administrative difficulties and legislative silence. The Transvaal High Court dismissed their application, holding that prisoners’ inability to vote was of their own making. The applicants sought leave to appeal directly to the Constitutional Court, contending that their constitutional rights to vote, dignity and equality were infringed by the failure to facilitate prisoner voting.

Leave to appeal was granted and the appeal upheld. The Court declared that prisoners are entitled to register as voters and to vote in the 1999 general elections, and ordered the Electoral Commission to make all reasonable and necessary arrangements to enable eligible prisoners to register and vote.

This case is a landmark decision affirming that prisoners retain the right to vote unless that right is lawfully and constitutionally limited. It emphasises the centrality of universal adult suffrage to South Africa’s constitutional order and clarifies that constitutional rights often impose positive duties on the state. The judgment strongly rejects disenfranchisement by administrative neglect and underscores the dignity and equal citizenship of prisoners.