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requires the State indeed to present regular elections. 11 Second, he
holds that these elections must be arranged such that they are free
and fair and that any arrangement with this purpose that prevents
otherwise eligible voters from registering to vote and from voting will
be upheld as long as ‘people who would otherwise be eligible to vote
are [despite the arrangement at issue] able to do so if they want to
vote and if they take reasonable steps in pursuit of the right to
vote’. 12 For Yacoob J then, the state, to give effect to a right central
to the constitutional principle of democracy, can be asked to do no
more than present regular elections, and to arrange those elections
to be free and fair in such a way that it is possible for otherwise
eligible people to vote.
In UDM, the issue was whether representative institutions were
arranged in a manner that meets that element of the constitutional
standard of democracy that requires the existence of a multi-party
democracy. The Court’s definition of multi-party democracy — a
system ‘that contemplates a political order in which it is permissible
for different political groups to organise, promote their views through
public debate and participate in free and fair elections’ 13 — and its
finding that the floor-crossing legislation passes constitutional muster
because, although it probably frustrates the will of the electorate, it
doesn’t actively ‘undermine multi-party democracy’ 14 seem informed
by the same understanding of the nature of the state’s democracyrelated
duties as Yacoob J’s judgment in NNP. Again the idea seems
to be that the state has done enough if it (a) ensures that the required
institutions of democracy exist and (b) ensures that they are arranged
in such a way that it is only possible for democracy to operate within
them. 15
In sum, the NNP/UDM Court’s understanding of what the state
must do to give effect to the Final Constitution’s conception of
democracy requires only that the State build the institutions of
democracy (elections; representative institutions; processes of direct
consultation etc) and then to sit back and wait for democracy to
arrive.
The problem with such an articulation is two-fold. First, it reflects
an entirely institutional understanding of democracy that equates
11 NNP (n 9 above) para 12–17.
12
NNP (n 9 above) para 21.
13 UDM (n 3 above) para 26 (my emphasis).
14 T Roux ‘Democracy’ in S Woolman et al (eds) Constitutional Law of South Africa
(2nd Edition, OS, 2006) 10-27.
15 The duty as described in UDM is lighter than in NNP — it is acceptable for the
Court that representative institutions are operated such that they render
permissible the free political activity that is required by multi-party democracy.
UDM (n 3 above) para 26.