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Theunis Roux 93
proceedings of the municipal council and its committees. 23 The most
obvious construction to be placed on FC section 160(8)(b), when read
with the comprehensive regulation of decision-making in FC section
160(3), is that it applies to the manner of participation in a municipal
council and its committees, and not to the way decisions are taken.
What FC section 160(8)(b) says is that, in addition to being fairly
represented, minority parties are entitled to participate in the
meetings of a municipal council and its committees in a manner
‘consistent with democracy’. The principle of democracy to which FC
section 160(8)(b) here refers must mean, not the majority-rule
principle, which is stated in FC section 160(3), but the deeper
principle of democracy discernible in the constitutional text as a
whole.
It would thus seem that O’Regan J’s equation of the FC section
160(8)(b) requirement with the principle of majority-rule in decisionmaking
is open to question. Nevertheless, that is conclusively what
she says, and we are therefore left with a dissenting opinion that fails
to attribute to the principle of democracy the full meaning argued for
in this essay. Even Sachs J’s concurring opinion, though it appears to
support that reading of the principle more fully, might in the end be
said to depend on the textual peg of the phrase ‘fair representation’.
Without that phrase, it is not self-evident that either O’Regan J or
Sachs J would have read FC section 160(8) in the manner that they
did. Masondo therefore leaves us with less than fulsome support for
the reading of the principle of democracy outlined above.
Two more recent decisions, however, come much closer to that
reading, and moreover were delivered by a near unanimous Court. In
African Christian Democratic Party, the first occasion on which
O’Regan J has written for the majority in a case concerning political
rights, the Court held that provisions in electoral statutes should be
interpreted in favour of ‘enfranchisement rather than disenfranchisement
and participation rather than exclusion’. 24 This holding
was expressly tied to FC section 1(d), which is quoted in full in the
preceding paragraphs, along with Sachs J’s commentary on FC section
1(d) in August. 25 O’Regan J’s judgment was concurred in by all the
members of the Court with the exception of Skweyiya J. Here, then,
we have conclusive support for the deep principle of democracy
23 It is possible that the intention of FC sec 160(8)(b) was to extend the majorityrule
principle in FC sec 160(3) to proceedings of the committees of a municipal
council. However, as noted earlier, this reading is strained since FC sec 160(8)
expressly applies both to proceedings of the committees of a municipal council
and to proceedings of the municipal council itself, that is, the council in plenary
session.
24 African Christian Democratic Party v Electoral Commission & Others 2006 3 SA
305 (CC), 2006 5 BCLR 579 (CC) para 23.
25
August (n 11 above) para 17, quoted in African Christian Democratic Party (n 24
above) para 22.