THE ELECTORAL COURT OF SOUTH AFRICA REPUBLIC OF SOUTH AFRICA. Neutral citation: Freedom Front Plus v ANC & Another (02/2009)(31 March 2009)

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1 THE ELECTORAL COURT OF SOUTH AFRICA REPUBLIC OF SOUTH AFRICA Case No: 02/2009 THE FREEDOM FRONT PLUS Appellant and AFRICAN NATIONAL CONGRESS 1 s t Respondent WINNIE MADIKIZELA-MANDELA 2 n d Respondent Neutral citation: Freedom Front Plus v ANC & Another (02/2009)(31 March 2009) Coram: Mthiyane JA, Pillay, Masipa JJ, S Moodley and S Abro (members) Heard: 30 March 2009 Delivered: 31 March 2009 Summary: Interpretation and application of section 47(l)(e) of the Constitution objection to the nomination of a candidate who was convicted and sentenced to more than 12 months imprisonment the whole of which was wholly suspended for 5 years Disqualification held not to apply to the candidate concerned.

2 ORDER 1 In the result the following order is made: (1) The appeal is dismissed. JUDGMENT MTHIYANE JA (PILLAY, MASIPA JJ, S MOODLEY and S ABRO (members) concurring): [1] The appellant, the Freedom Front Plus, appeals to this Court against the dismissal by the Electoral Commission of their objection, filed in terms of s 30 of the Electoral Act, to the nomination of the second respondent, Ms Winnie Madikizela-Mandela as a candidate in the election of 22 November The appellant contends that the second respondent is disqualified from standing because of a sentence of imprisonment of more than twelve months imposed on her in July 2004, even though the whole of the sentence was suspended on certain conditions. [2] The second respondent was nominated by the first respondent, the African National Congress, as a candidate in terms of section 27 of the Electoral Act 73 of The relevant portion of the section reads as follows: '(1) A registered party intending to contest an election must nominate candidates for that election to the Chief Electoral Officer in the prescribed manner by not later than the relevant date stated in the election timetable. (2) The list or lists must be accompanied by a prescribed (a)...

3 (b)... declaration, signed by the duly authorised representative of the party, that each candidate on the list is qualified to stand for election in terms of the Constitution or national or provincial legislation under chapter 7 of the Constitution [emphasis added]. (c)... [3] The appellant's objection to the nomination of the second respondent is based on section 47(1)(e) of the Constitution. The relevant portion of the section provides as follows: '... anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 twelve months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed. [Emphasis added]. [4] It is not in dispute that the second respondent was convicted of the commission of certain crimes on 24 April 2003 for which she was sentenced to a lengthy term of imprisonment. Nor is it disputed that after her appeal against the conviction and sentence to the Full Bench of the Pretoria High Court in July 2004 her sentence was reduced to three years and six months' imprisonment, the whole of which was suspended for a period of five years on certain conditions. What is in dispute is whether the disqualification applies to the second respondent. [5] The basis of the appellant's objection is that because the second respondent was sentenced to a period of more than twelve months without the option of fine in July 2004, she falls squarely within the provisions of section 47(1 )(e) of the Constitution. According to the appellant, it is of no moment that the second respondent's term of

4 imprisonment was wholly suspended. The appellant submits that the expression 'imprisonment' referred to in section 47(1 )(e) includes a suspended term of imprisonment. [6] The appellant has reminded us of a well established rule of statutory construction to the effect that when the legislature deliberately includes language in a statute which in the same or similar context has been subject to judicial interpretation it intends the provision to bear the same meaning already given by the courts. See Sidumo and another v Rustenburg Platinum Mines Ltd and others.1 For this submission the appellant relies heavily on the cases of Jaga v Dönges NO & another, Bhana v Dönges, NO & another 2 in which the court had to consider the meaning and effect of the words 'sentenced to imprisonment'. The question before the court was whether a Minister of the Interior was entitled to deem the affected individuals in that case as undesirable inhabitants. In terms of the relevant legislation the Minister was entitled so to deem individuals who had 'been sentenced to imprisonment.' The appellants in that case argued that they were not liable to be so deemed by virtue of the fact that the sentences imposed on them had been wholly suspended. They had therefore, so they argued, not 'been sentenced to imprisonment.' Their argument was rejected by the court where Centlivres JA, writing for the majority said: 'A sentence of imprisonment the whole of which is suspended is just as much a sentence of imprisonment as a sentence to pay afinethe whole of which is suspended is a sentence of a fine. It is true that the sentence cannot be enforced unless the condition is breached but it remains in force and can be carried into execution if during the period of its suspension the accused breaches the condition.' (at 659B) [Emphasis added] (2) SA 24 (CC) para (4) SA 653D.

5 [7] The appellant has hung its case squarely on the above peg, especially the underlined sentence and urged us that when the Legislature constructed section 47(1)(e) of the Constitution it knew what interpretation had previously been given to the term 'imprisonment'. The appellant argues that the Legislature intended to convey 'imprisonment' even if the same was wholly suspended. [8] There can be no question that if the word 'imprisonment' is taken in isolation and given simply its literal meaning the judicial pronouncement in Jaga and Bhana would carry the day. In its submission the appellant has avoided any reference to the context in which the word 'imprisonment' occurred in that case and reference to the context in the present matter. That, too, is important. It was forcefully articulated by Schreiner JA in the Bhana case when the learned judge remarked that there are 'cases where the context operates with force sufficient to override even the clear language pointing the other way.' (at 663F) [9] When one seeks to establish the intention of the legislature in a particular piece of legislation one looks not only at the words used but the context in which they occur. This approach is fortified by the judgment of Howie JA in Hoban v ABSA Bank Ltd3 where he quoted with approval E Cameron in Joubert (ed) The Law of South Africa vol 27 at 207 para 229 where he said '...context does no more than reflect legislative meaning which in turn is capable of being expressed only through words in context'. The same or similar language in different statutes may not necessarily mean the same thing. In this regard in Consolidated Diamond Mines of (2) SA 1036 (SCA) at 1045B.

6 SWA Ltd v Administrators of SWA Schreiner JA said: 'Previous decisions on the meaning of the same words in different contexts can hardly be more than suggestive and possibly only faintly suggestive, of the meaning that may be proper in the case under consideration.' [10] I turn to consider whether the words 'and sentenced to more than 12 months imprisonment without the option of a fine' read in context and as used in section 47(1)(e) of the Constitution suggest that a wholly suspended sentence is to be taken to fall within the disqualification. Before doing so it bears mention that although the words 'sentenced to imprisonment' occurs both in the Jaga and the Bhana cases and the present matter, the context in which they occur is vastly different. A further distinction is provided by the last sentence in the section where it is said that a 'disqualification under this section ends five years after the sentence has been completed.' In the cases relied on by the appellant Centlivres JA did not deal with the question of the point in time at which the sentence concerned was to be completed. In the present matter this is the problem that we are confronted with. In terms of the section it is the sentence that has to be completed and the section is silent on the effect of the suspension of it. In Bhana, Van den Heever JA (who was part of the majority) drew a distinction between the sentence and its suspension as follows: 'The order for suspension is something outside the sentence: it does not diminish or enlarge it but suspends its operation. The fact that, when all the conditions specified in the order have been observed, the sentence shall not be enforced, is something which flows neitherfromthe sentence norfromthe order, but is a benefit ex lege. [11] It seems to me that one has to strain the language of the section to come to the conclusion that completion of the sentence must be read to (4) SA 572 (A) at 637.

7 include the completion of the suspension. Section 47(1)(e) refers to a sentence that 'has been completed'. It is submitted on the first respondent's behalf that it is more natural to speak of the completion of a sentence that has been served. Linguistically it is awkward, submits the first respondent, to speak of the completion of a suspended sentence. A suspended sentence 'expires' and is not 'completed'. The Legislature is presumed to speak in a language that everybody understands. [12] According to the first respondent section 47(1)(e) seeks to disqualify persons who have served a term of actual imprisonment without the option of a fine from holding office too soon after completing their sentence. According to the first respondent the focus is on the punishment as opposed to the crime. If regard is had to the context in which the words are used in the section, there is, in my view, a lot to be said for this submission. [13] This view is I think, strengthened by the anomaly that would result if the appellant's interpretation were correct. It lies therein that a person who commits a more serious offence for which he or she serves a prison term of twelve months would be eligible to hold public office much earlier than a person who did not actually serve a prison term, but his or her sentence suspended for a period of five years for example. This could never have been the intention of the Legislature, namely to encourage uneven treatment of its citizens in violation of the equal protection provisions of s 9 of the Constitution. [14] We need to remind ourselves that what we are concerned with is a citizen's right to stand for public office, which right is enshrined in section 19(3)(b) of the Bill of Rights. It cannot be limited save as justified

8 in s 36 of the Constitution. It is therefore against the backdrop of these imperatives that section 47(1)(e) must be interpreted and applied. It has to be interpreted, I think, in a way that 'must promote the values that underlie an open and democratic society based on human dignity, equality and freedom (section 39(1)(a)) and gives effect to the right to stand for and if elected, to hold public office. [15] For the above reasons the second respondent is not disqualified from standing as a candidate for election on 22 April 2009 as she was not sentenced to an effective term of imprisonment, capable of being 'completed' within the meaning of section 47(1)(e). It follows that the Electoral Commission was correct in dismissing the appellant's objection. [16] Accordingly the appeal is dismissed. KK MTHIYANE JUDGE OF APPEAL