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92 Chapter 6
O’Regan J’s statement of the principle contained in FC section
160(8)(a) is very similar, but does contain one difference that may be
crucial for the way the principle of democracy is conceived in other
cases. Although Sachs J, like the Cape High Court in Democratic
Alliance v ANC, interprets the phrase ‘consistent with democracy’ in
FC section 160(8)(b) as meaning consistent with the principle of
majority rule, 21 it is clear from the remarks just quoted that he thinks
the Final Constitution’s overarching vision for South African
democracy is much more nuanced than this, and that the operation of
the majority-rule principle, not just in FC section 160(8), but
generally, is constrained by the need to engage in meaningful
deliberation beforehand. For Sachs J, therefore, the principle of
democracy in South African constitutional law is a deep one, roughly
corresponding to the statement of that principle set out above.
O’Regan J, on the other hand, says in so many words that the principle
of democracy, at least in FC section 160(8)(b), is coterminous with the
principle of majority rule:
[FC] section 160(8)(b) is clear that the principle of fair representation is
always subject to democracy and the will of the majority. The principle
established by section 160(8) is a principle which requires inclusive
deliberation prior to decision-making to enrich the quality of our
democracy. It does not subvert the principle of democracy itself.’ 22
It is clear from this passage that, when O’Regan J uses the phrase,
‘the principle of democracy’, she means the principle of majority
rule. Her reading of FC section 160(8), in other words, is that it
contains two principles — a principle of fair representation and a
principle of democracy — and that these two principles may be
reconciled with each other by reading the former to apply to the
manner in which minority parties should be allowed to participate in
the proceedings of a municipal council and its committees, and the
latter to the way in which decisions are taken. This reading of FC
section 160(8) is questionable. Textually, there is nothing in FC
section 160(8)(b) that says that this provision applies to decisionmaking,
and certainly not to the exclusion of other issues. The
operation of the majority-rule principle with regard to decisionmaking
in a municipal council is set out in FC section 160(3). It
provides that certain decisions of a municipal council must be taken
‘with a supporting vote of a majority of its members’ and others ‘by
a majority of the votes cast’. Given this comprehensive regulation of
the issue, it is unclear why FC section 160(8)(b) should be read as
restating the majority-rule principle in relation to participation in the
21
Masondo (n 18 above) para 38.
22 Masondo (n 18 above) para 78 (my emphasis).