Download this publication - PULP

Theunis Roux 87
democracy discernible in the constitutional text need not be altered
in order to accommodate UDM.
UDM was, of course, not the first case to rely on the principle of
judicial deference in a politically sensitive case concerning the design
of the electoral system. In New National Party v Government of the
Republic of South Africa (‘NNP’), Yacoob J held, in a decision from
which only O’Regan J dissented, that the standard of review in
challenges to electoral statutes based on the right to vote was bare
rationality. 9 In her powerful dissent, O’Regan J stressed the centrality
of the right to vote in the consolidation of South African democracy,
remarking that: ‘The right to vote is foundational to a democratic
system. Without it, there can be no democracy at all.’ 10 In according
special importance to the right to vote in this way O’Regan J aligned
herself with the consensus view in democratic theory that, if any right
needs to be safeguarded against majority override, it is the right to
vote. For this reason, O’Regan J’s judgment also supports the second
element of the principle of democracy adumbrated above. It is
integral to the Final Constitution’s conception of democracy that
rights be capable of trumping the will of the majority where such a
result better serves ‘the democratic values of human dignity, equality
and freedom’. By excluding the right to vote from the operation of
this principle, and by subjecting the state’s regulation of it to a
standard of bare rationality, NNP is clearly wrong.
Although the decisions in August 11 and NICRO, 12 by vindicating
prisoners’ right to vote in the face of executive neglect and legislative
override, they do so without calling into question the standard of
review laid down in that case. 13 August and NICRO, counterbalance
the decision in NNP somewhat, therefore, despite endorsing the
centrality of the right to vote in South African democracy, neither
support nor detract from the principle of democracy discernible in the
constitutional text. At best, they are agnostic on the question
whether that principle can be enforced in cases where the state does
not act irrationally. 14
9
1999 3 SA 191 (CC), 1999 5 BCLR 489 (CC) paras 19-24.
10 n 9 above, para 122.
11 August v Electoral Commission 1999 3 SA 1 (CC), 1999 4 BCLR 363 (CC).
12
NICRO (n 1 above).
13 August (n 11 above) was decided twelve days before NNP (n 9 above) and NICRO
(n 1 above) some five years later.
14
It should not be necessary to add that South African constitutional law does not
need a deep principle of democracy to guard against irrational state action. The
principle of the rule of law, including the doctrine of legality, would do this job
just as well. See F Michelman ‘The rule of law, legality and the supremacy of the
Constitution’ in Woolman et al (n 3 above) Chapter 11.