Jaga V Dongens Case

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Minister of Home Affairs v NICRO and Others

Case CCT 03/04

MEDIA SUMMARY

The following media summary is provided to assist in reporting this case and is not binding on the Constitutional Court or any member of the Court.

The Constitutional Court upheld an application by the National Institute for Crime Prevention and the Re-Integration of Offenders (Nicro) and two convicted prisoners serving sentences of imprisonment, for an order declaring certain provisions of the Electoral Act to be inconsistent with the Constitution and invalid. The provisions deprive prisoners serving a sentence of imprisonment without the option of a fine of the right to register and vote in the upcoming elections. Chaskalson CJ, writing for the majority (Langa DCJ; Mokgoro J; Moseneke J; O’Regan J; Sachs J; Skweyiya J; Van der Westhuizen J and Yacoob J), highlights the fact that, given the history of disenfranchisement in our country, the right to vote occupies a special place in our democracy. Any limitation of this right must be supported by clear and convincing reasons. If the government seeks to disenfranchise a group of its citizens it must place sufficient information before the Court demonstrating what purpose the disenfranchisement is intended to serve and to evaluate the policy considerations on which such decision was based. The Minister of Home Affairs advanced cost and logistical constraints as the rationale for limiting the right to vote of prisoners serving sentences of imprisonment without the option of a fine. This contention is, however, not supported on the facts. Arrangements for registering voters have been made at all prisons in order to accommodate awaiting trial prisoners and those serving sentences because they have not paid the fines imposed on them. Mobile voting stations are to be provided on election day for these prisoners to vote. Thus the majority holds that there was nothing to suggest that expanding these...