8. Substantive Rights: Political Rights
INTRODUCTION: POLITICAL RIGHTS AND
DEMOCRACY
Basic principle of democracy: The exercise of political power by a government is only
•
legitimate if it is based on the consent of the governed
• Before 1994, the majority of South Africans were prohibited from voting in elections
based solely on their race. Theoppressive and undemocratic state curtailed much of
extra-parliamentary political activity.
• Preamble of Constitution:
◦ “We, the people of South Africa...Lay the foundations for a democratic and open
society in which government is based on the will of the people and every citizen is
equally protected by law...”
• What forms of democracy are endorsed by the SA Constitution?
◦ Representative democracy
◦ Participatory democracy
◦ Direct democracy
• Note: provisions for public participation in legislative bodies: ss 59(1)(a); 72(1)(a); 118(1)
(a); Doctors for Life v Speaker [2006] ZACC 11
• Other rights in the BOR protecting participatory democracy e.g. ss 16, 17 18, meaningful
engagement jurisprudence under ss 26 - 27
KEY PROVISIONS OF CONSTITUTION:
SECTIONS 1(d) AND 19
Section 1(d)
• The Republic of South Africa is one sovereign, democraticstate founded on the following
values:
◦ (d) Universal adult suffrage, a national common voters roll, regular elections and a
multi-party system of democraticgovernment, to ensure accountability,
responsiveness and openness.
Section 19
(1) Every citizen is free to make political choices, which includes the right -
a) to form a political party;
b) to participate in the activities of, or recruit members for, a political party; and
, c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3) Every adult citizen has the right –
a) to vote in elections for any legislative body established in terms of the Constitution,
and to do so in secret; and
b) to stand for public office and, if elected, to hold office.
• NB: Political rights in s 19 restricted to citizens
◦ Compare to other rights in the Bill of Rights
• Right to vote, to stand for office, and to hold office in s 19(3) restricted to adult citizens
• S 46(1)(c) of Constitution -> Electoral system for election of members of the NA must
make provision for a minimum voting age of 18 years; Definition of ‘voter’ in Electoral Act,
1998, S1
VALUES AND PURPOSES: SECTION 19
The Constitutional Court has considered the purpose behind the political rights
•
guaranteed in section 19 of the Constitution in a number of cases. In these cases the
court held that these rights are NB for two reasons:
◦ First, the rights are important because they are aimed at preventing a recurrence of
the wholesale denial of political rights that took place during the apartheid era
◦ A second reason why these rights are important is that they aim to give effect to a
system of representative democracy.
Min of Home Affairs v Nicro para 47
• “In the light of our history where denial of the right to vote was used to entrench white
supremacy and to marginalise thegreat majority of the people of our country, it is for us a
precious right which must be vigilantly respected and protected.”
My vote Counts v Min of Justice para 32
• “The importance of the right to vote is self-evident and can never be overstated ... the
right is fundamental to a democracy, for without it there can be no democracy.”
August v Electoral Commission
• “The universality of the franchise is important not only for nation hood and democracy.
The vote of each and every citizen is a badge of dignity and of personhood. Quite literally,
it says that everybody counts.”
2
, THE RIGHT TO MAKE POLITICAL CHOICES
AND THE ROLE OF POLITICAL PARTIES
SECTION 19(1)
S19(1) free political choices and political parties:
• Constitution does not regulate the internal affairs of political parties. Nor does it contain
extensive provisions on the appropriate constitutional relationship between political
parties and constitutional structures such as legislatures and executives
• Citizens able to associate freely with political causes or parties without fear of adverse
consequences
◦ The rights to freedom of expression, assembly and association ensure that these
political activities not associated directly with political parties are adequately
protected by the Constitution.
• Section 19(1) of the Constitution, which guarantees for all citizens the right to form,
participate in the activities of and campaign for political parties, affirms that such
participation lies at the heart of the right to make political choices.
• These provisions have a number of important consequences. Among these are the
following:
◦ First, members of a political party have a constitutional right to participate in the
activities of their party.
◦ Second, this constitutional right can be enforced not only against external interference
but against external interference arising from within the party itself.
• New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11
(“New Nation Movement”):
◦ Section 19(1) includes the general right not to join a political party (harmonises with a
broad interpretation of section 19(3)(b))
▪ a majority of the Constitutional Court held that the general right to make political
choices is not limited to choices about political parties. Instead, it goes much
further and includes the right to make other political choices, including the right
not to join political parties.
• Despite the important role of political parties in SA’s democratic system there is little
regulation of their internal functioning
• There are no significant constitutional or legislative provisions that regulate the internal
affairs of political parties such as the manner in which they select their candidates for
elections or the manner in which they discipline members who have allegedly breached
their rules
3
INTRODUCTION: POLITICAL RIGHTS AND
DEMOCRACY
Basic principle of democracy: The exercise of political power by a government is only
•
legitimate if it is based on the consent of the governed
• Before 1994, the majority of South Africans were prohibited from voting in elections
based solely on their race. Theoppressive and undemocratic state curtailed much of
extra-parliamentary political activity.
• Preamble of Constitution:
◦ “We, the people of South Africa...Lay the foundations for a democratic and open
society in which government is based on the will of the people and every citizen is
equally protected by law...”
• What forms of democracy are endorsed by the SA Constitution?
◦ Representative democracy
◦ Participatory democracy
◦ Direct democracy
• Note: provisions for public participation in legislative bodies: ss 59(1)(a); 72(1)(a); 118(1)
(a); Doctors for Life v Speaker [2006] ZACC 11
• Other rights in the BOR protecting participatory democracy e.g. ss 16, 17 18, meaningful
engagement jurisprudence under ss 26 - 27
KEY PROVISIONS OF CONSTITUTION:
SECTIONS 1(d) AND 19
Section 1(d)
• The Republic of South Africa is one sovereign, democraticstate founded on the following
values:
◦ (d) Universal adult suffrage, a national common voters roll, regular elections and a
multi-party system of democraticgovernment, to ensure accountability,
responsiveness and openness.
Section 19
(1) Every citizen is free to make political choices, which includes the right -
a) to form a political party;
b) to participate in the activities of, or recruit members for, a political party; and
, c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3) Every adult citizen has the right –
a) to vote in elections for any legislative body established in terms of the Constitution,
and to do so in secret; and
b) to stand for public office and, if elected, to hold office.
• NB: Political rights in s 19 restricted to citizens
◦ Compare to other rights in the Bill of Rights
• Right to vote, to stand for office, and to hold office in s 19(3) restricted to adult citizens
• S 46(1)(c) of Constitution -> Electoral system for election of members of the NA must
make provision for a minimum voting age of 18 years; Definition of ‘voter’ in Electoral Act,
1998, S1
VALUES AND PURPOSES: SECTION 19
The Constitutional Court has considered the purpose behind the political rights
•
guaranteed in section 19 of the Constitution in a number of cases. In these cases the
court held that these rights are NB for two reasons:
◦ First, the rights are important because they are aimed at preventing a recurrence of
the wholesale denial of political rights that took place during the apartheid era
◦ A second reason why these rights are important is that they aim to give effect to a
system of representative democracy.
Min of Home Affairs v Nicro para 47
• “In the light of our history where denial of the right to vote was used to entrench white
supremacy and to marginalise thegreat majority of the people of our country, it is for us a
precious right which must be vigilantly respected and protected.”
My vote Counts v Min of Justice para 32
• “The importance of the right to vote is self-evident and can never be overstated ... the
right is fundamental to a democracy, for without it there can be no democracy.”
August v Electoral Commission
• “The universality of the franchise is important not only for nation hood and democracy.
The vote of each and every citizen is a badge of dignity and of personhood. Quite literally,
it says that everybody counts.”
2
, THE RIGHT TO MAKE POLITICAL CHOICES
AND THE ROLE OF POLITICAL PARTIES
SECTION 19(1)
S19(1) free political choices and political parties:
• Constitution does not regulate the internal affairs of political parties. Nor does it contain
extensive provisions on the appropriate constitutional relationship between political
parties and constitutional structures such as legislatures and executives
• Citizens able to associate freely with political causes or parties without fear of adverse
consequences
◦ The rights to freedom of expression, assembly and association ensure that these
political activities not associated directly with political parties are adequately
protected by the Constitution.
• Section 19(1) of the Constitution, which guarantees for all citizens the right to form,
participate in the activities of and campaign for political parties, affirms that such
participation lies at the heart of the right to make political choices.
• These provisions have a number of important consequences. Among these are the
following:
◦ First, members of a political party have a constitutional right to participate in the
activities of their party.
◦ Second, this constitutional right can be enforced not only against external interference
but against external interference arising from within the party itself.
• New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11
(“New Nation Movement”):
◦ Section 19(1) includes the general right not to join a political party (harmonises with a
broad interpretation of section 19(3)(b))
▪ a majority of the Constitutional Court held that the general right to make political
choices is not limited to choices about political parties. Instead, it goes much
further and includes the right to make other political choices, including the right
not to join political parties.
• Despite the important role of political parties in SA’s democratic system there is little
regulation of their internal functioning
• There are no significant constitutional or legislative provisions that regulate the internal
affairs of political parties such as the manner in which they select their candidates for
elections or the manner in which they discipline members who have allegedly breached
their rules
3
