Prisoners should not be placed in a more favourable position than others who cannot vote, the Constitutional Court heard on Wednesday.
The government would be sending the wrong message if it made special arrangements for prisoners, advocate Vas Soni, SC, representing the minister of home affairs, told the court.
The court was hearing an urgent application from certain prisoners who are excluded from voting to have their case heard before the court.
The application was brought by the South African Institute for Crime Prevention and the Reintegration of Offenders (Nicro) and two prisoners serving sentences without an option of a fine.
Under the Electoral Laws Amendment Act, only prisoners awaiting trial and prisoners given the option of paying a fine will be allowed to vote in the election on April 14.
The respondent is the minister of home affairs.
The applicants said there is no logistical or practical reason why prisoners could not vote.
They conceded that as a matter of principle the legislature is entitled to limit the right to vote if there is a demonstrable justification for the limit, but in this case argued that there is no legitimate justification.
Advocate Vincent Maleka, on behalf of the applicants, said the amendment to the Electoral Act promulgated in December 2003 violates two constitutional rights of prisoners: the right to vote and the right to equality.
Maleka said the minister is concerned with public perception and not the concerns of prisoners.
He said a clear government purpose is needed to limit prisoners’ right to vote.
”In this case there is not a clear, demonstrable, legitimate government purpose,” Maleka said.
Maleka said the Independent Electoral Commission has the facilities to allow prisoners to vote. Hence there would be no logistical or practical reason for excluding certain categories of prisoners from voting.
Soni said the purpose of the amendment to the Electoral Act is to relieve the Indepdendent Electoral Commission of having to make special arrangements.
The argument is being heard by a full bench headed by Chief Justice Arthur Chaskalson.
Chaskalson said the issue of prisoners’ right to vote seems to have split courts around the world.
The hearing continues. — Sapa