ITS_MY_PARTY_AND_ILL_DO_WHAT_I_WANT_TO_I

IT’S MY PARTY (AND I’LL DO
WHAT I WANT TO)?: INTERNAL

PARTY DEMOCRACY AND SECTION
19 OF THE SOUTH AFRICAN
CONSTITUTION
PieRRe De vos*
ABSTRACT
South Africa’s democracy has both representative and participatory elements. The
participatory aspect of democracy enhances the civic dignity of citizens by empowering
them to take part in decisions that affect their lives. However, the overbearing role that
political parties play in the South African democracy runs the risk of limiting the ability
of citizens to participate effectively in decisions that impact on their lives. This is because
the leaders of political parties (especially of governing parties) may wield enormous power
and inluence inside their respective parties and in the legislature and executive. Where the
ordinary members of parties have little or no direct say about the formulation of the policies
of the party they belong to or the election of its leaders or those who will stand for election
as public representatives at national and provincial level, the ability of such members to
participate in democratic processes and decisions are limited. To facilitate the participation
of party members in the activities of a political party to ensure the enhancement of their civic
dignity s 19(1)(b) of the Constitution guarantees the right of every citizen freely to make
political choices, including the right to participate in the activities of, or recruit members
for, a political party. In Ramakatsa v Magashule the majority of the Constitutional Court
afirmed the importance of the right of party members to participate freely in the activities
of the political party they belong to and also found that the constitutions of political parties
have to ensure this happens. Provisions of a political party’s constitution can be declared
invalid if it fails to comply with the provisions of the Bill of Rights (including s 19(1)
(b)). This article contends that Ramakatsa can be interpreted to place a positive duty
on the legislature to pass a ‘party law’ that sets minimum requirements to protect the
democratic participation of party members in the activities of the party – including about
the formulation of party policies, the election of party ofice bearers and the selection of the
party’s candidates for election as public representatives.
Key words: bills of rights, democracy, Parliament, political rights
i iNtRoDuctioN
The active participation of citizens in decisions that impact on their lives
is a cornerstone of modern constitutional democracies.1 This is so because
Claude Leon Foundation Chair in Constitutional Governance, Department of Public Law,

*
University of Cape Town. I would like to thank Jonty Cogger for valuable research assistance
provided in the writing of this article.
1 N Roberts ‘Public Deliberation in an Age of Direct Citizen Participation’ (2004) 34 American
Review of Public Administration 315, 315. See generally S Freeman ‘Deliberative Democracy:
A Sympathetic Comment’ (2000) 29 Philosophy and Public Affairs 371–418; ME Warren ‘What
can Democratic Participation mean Today?’ (2002) 30 Political Theory 677–701.
30
IT’S MY PARTY (AND I’LL DO WHAT I WANT TO)? 31
constitutional democracy is premised on the idea that governments must be

responsive to the needs of citizens.2 This responsiveness can only be achieved
through at least some degree of citizen-participation (through the election
of public representatives, participation in public discussions, participation
in peaceful protests, participation in law-making activities, or participation
in other political activities)3 in decisions over things which impact on their
lives. The assumption underlying support for active citizen-participation is
that without such participation by citizens, governments are unlikely to be
either accountable or responsive to the needs of citizens.4 From a normative
perspective, where governments fail to be responsive to the needs of people,
the government will fall into a ‘democratic deicit’. From an empirical
perspective when citizens come to believe that they cannot use their agency as
citizens to participate in decision-making that affects them in order to achieve
responsiveness, a government also falls into a ‘democratic deicit’.5
However, political scientists and democratic theorists differ about the
degree of citizen participation that is desirable in a democracy. Simplifying
the matter slightly, one inds in one corner those who argue that too much
citizen participation in political decision-making might negatively affect the
quality of decisions made through the political process. This group warns that
too much participation may threaten the protection of the rights and freedoms
of some citizens (especially vulnerable and marginalised groups), and may
thus hamper the full recognition and proper management of diversity in a
2 The Constitution of the Republic of South Africa, 1996 s 1(d) states that the Republic of South
Africa is one, sovereign, democratic state founded on (amongst others) the value of ‘[u]niversal
adult suffrage, a national common voters roll, regular elections and a multi-party system of
democratic government, to ensure accountability, responsiveness and openness’. The link
between responsiveness and the transformative vision contained in the Constitution is made
explicit by Moseneke DCJ in South African Police Service v Solidarity obo Barnard 2014 (6)
SA 123 (CC) (CCT 01/14) [2014] ZACC 23 (2 September 2014) para 33, where he states: ‘Our
state must direct reasonable public resources to achieve substantive equality “for full and equal
enjoyment of all rights and freedoms”. It must take reasonable, prompt and effective measures
to realise the socio-economic needs of all, especially the vulnerable. In the words of our
Preamble the state must help “improve the quality of life of all citizens and free the potential
of each person”. That ideal would be within a grasp only through governance that is effective,
transparent, accountable and responsive.’ (my italics)
3 ME Warren ‘Citizen Participation and Democratic Deficits: Considerations from the Perspective
of Democratic Theory’ in J De Bardeleben & J Pammett (eds) Activating the Citizen: Dilemmas
of Participation in Europe and Canada (2009) 17, 18. See also J Cohen & J Rogers On Democracy
(1983). Erik Olin Wright, whose work promotes a ‘radical democratic egalitarian understanding
of justice’ argues that democratic participation is a precondition for the establishment of a
politically just society. ‘All people should have broadly equal access to the necessary means to
participate meaningfully in decisions over things which affect their lives. This includes both the
freedom of individuals to make choices that affect their own lives as separate persons, and their
capacity to participate in collective decisions which affect their lives as members of a broader
community.’ E Olin Wright Envisioning Real Utopias (2010) 12.
4 See Constitution s 1(d).
5 Warren (note 3 above) 18.
32 (2015) 31 SAJHR
democracy.6 They also warn that expansive forms of participation by citizens in

decisions that affect their lives make it too dificult to govern a state effectively.
It follows that the spheres of society that are organised democratically must be
limited.7 In the other corner one inds those who see such a limited conception
of democracy as an important reason for many of the ills associated with
contemporary liberal democracies.8 Limited participation, so the argument
goes, empowers unelected and unaccountable bureaucrats or politicians
beholden to party and business elites and not voters to make decisions that
may have a profound impact on the lives of citizens. It disempowers citizens
and makes them cynical about the democratic process while allowing those
with money to buy inluence and to subvert the democratic will of the people.
The differences of opinion between those with a narrow and limited view of
democracy and those who have a more expansive view of democracy raises
profoundly important questions and it is beyond the scope of this article to
engage deeply with these questions.9 However, as will become apparent, the
arguments advanced in this article display a closer afinity with the latter
6 For example, would the South African Parliament have passed the Civil Union Act 17 of 2006
which extended marriage rights to same-sex couples if robust participation by anti-same-sex
marriage proponents were allowed to carry the day in the legislative process. See N Mkhize
‘(Not) in My Culture: Thoughts on Same-sex Marriage and African Perspectives’ in M Judge, A
Manion & S de Waal (eds) To Have & to Hold (2008) 97, 103.
7 See Roberts (note 1 above) 316, who argues that an appropriate emphasises on representative
democracy and an avoidance of the imposition of too much participatory elements in a democracy
may shield citizens from the dangers of direct involvement in government. ‘It buffers them from
uninformed public opinion, it prevents the tyranny of the majority, and it serves as a check on
corruption. It also meets the needs of a complex, postindustrial society that requires technical,
political, and administrative expertise to function. Unlike public officials, citizens do not have
the time or the interest to deliberate for the purpose of developing informed public judgment.
Given the size and complexity of the modern nation state, direct citizen participation is not a
realistic or feasible expectation.’ See also generally RA Dahl On Democracy (1998), where
similar arguments are developed in more detail.
8 M Warren ‘Democratic Theory and Self-transformation’ (1992) 86 American Political Science
Review 8, 8. See generally B Barber Strong Democracy (1984); S Bowles & H Gintis Democracy
and Capitalism: Property, Community, and the Contradictions of Modern Social Thought (1986);
F Cunningham Democratic Theory and Socialism (1987); J Dryzek Discursive Democracy:
Politics, Policy, and Political Science (1990); and J Mansbridge ‘Self-interest in Political Life’
(1990) 18 Political Theory 132–53.
9 Warren (ibid) 8. As Warren points out, traditional liberal theorists that see trade-offs between
democracy and other goods often hold that the self is defined by interests that are formed pre-
politically, either reflecting fixed desires or formed by social institutions and other circumstances
that are outside of institutionalised politics. Democracy, on this view, is primarily a means for
aggregating pre-political interests and should be limited in scope and domain just because it is
instrumental to pre-political interests and not a good in itself. In contrast, theories that argue for
increasing the scope and domain of democracy (expansive democracy) hold that standard liberal
democracy fails to articulate goods that are inherent in democracy and exaggerates the threats
posed by democracy to other goods. On this view, these limitations follow from a more general
failure of standard liberal democracy to appreciate the transformative impact of democracy on
the self, a failure rooted in its view of the self as prepolitically constituted. On the expansive
view, were individuals more broadly empowered, especially in the institutions that have most
impact on their everyday lives (workplaces, schools, local governments, etc), their experiences
would have trans-formative effects: they would become more public-spirited, more tolerant,
more knowledgeable, more attentive to the interests of others, and more probing of their own
interests.
view than the former view of democracy. This is so because my argument

is premised on the idea that increased citizen participation in and control
over decision-making in political parties is desirable and may arguably be
constitutionally mandated. Although I leave open the question of whether it
is desirable because such increased participation by citizens in the activities
of political parties will enhance the quality of the democracy, I nevertheless
make the claim that such increased citizen participation is a prerequisite for the
protection and promotion of the civic dignity of citizens. I take my cue from
the Constitutional Court judgment in Doctors for Life International v Speaker
of the National Assembly10 where Ngcobo J (as he then was) highlights the
need for citizen participation in governance matters in an unequal society like
South Africa and explicitly links this need for participation with the dignity
of citizens in the following expansive passage:
The participation by the public on a continuous basis provides vitality to the functioning of
representative democracy. It encourages citizens of the country to be actively involved in
public affairs, identify themselves with the institutions of government and become familiar
with the laws as they are made. It enhances the civic dignity of those who participate by
enabling their voices to be heard and taken account of. It promotes a spirit of democratic and
pluralistic accommodation calculated to produce laws that are likely to be widely accepted
and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people.
Finally, because of its open and public character it acts as a counterweight to secret lobbying
and inluence peddling. Participatory democracy is of special importance to those who
are relatively disempowered in a country like ours where great disparities of wealth and
inluence exist.
It is now well established that the value of dignity permeates the South African
Constitution. The value of human dignity ‘informs the interpretation of many,
possibly all, other rights’ contained in the Bill of Rights.11 As such it is a motif
that ‘runs right through the protections offered by the Bill of Rights’.12 This idea
or value of dignity is ‘at the inner heartland of our rights culture’.13 Underlying
the constitutional focus on the value of dignity is the assumption that each
human being has incalculable human worth, regardless of circumstances,
and should be treated accordingly. This idea that dignity is inherent to every
person regardless of circumstance, which leads to the conclusion that everyone
has the same moral worth,14 suggests that individuals must be accorded an
equal opportunity to take part in democratic decisions. Although it can be
10 2006 (6) SA 416 (CC); (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC) (17 August
2006) para 115 (my italics) (Doctors for Life).
11 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of
Home Affairs (CCT35/99) 2000 (3) SA 936; [2000] ZACC 8; 2000 (8) BCLR 837 (7 June 2000)
para 35.
12 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6; (CCT11/98)
[1998] ZACC 15; 1998 (12) BCLR 1517 (CC) (9 October 1998) para 120. As the Constitutional
Court pointed out in Dawood (ibid) para 35 the value of dignity permeates the Bill of Rights to
contradict South Africa’s apartheid past ‘in which human dignity for black South Africans was
routinely and cruelly denied’.
13 Masetlha v President of the Republic of South Africa (CCT 01/07) 2008 (1) SA 566 (CC); [2007]
ZACC 20; 2008 (1) BCLR 1 (3 October 2007) para 98.
14 City Council of Pretoria v Walker (CCT8/97) 1998 (2) SA 363; [1998] ZACC 1; 1998 (3) BCLR
257 (17 February 1998) para 113.
34 (2015) 31 SAJHR
viewed more broadly, at the very least dignity relates to a person’s identity,
his or her autonomy and moral agency.15 In a democracy in which the value of
dignity is foundational, rights should arguably be interpreted and applied in
such a way that increases an individuals’ control over self-determination and
self-development. This is in line with a more expansive theory of democracy
as it assumes that democracy has more than an instrumental value to ends
such as freedom, protection of private satisfactions, security, and order. In
this view, democracy generates values that are intrinsic to political interaction
and are closely related to self-development. Limiting citizens’ participation in
democracy to, say, electoral competition between elites would deprive those
citizens who are not members of the elite access to conditions of their own
development.16 That is why rights in the Bill of Rights relating to political
participation should, I argue, be interpreted expansively in order to give full
effect to the value of dignity and its agency-protecting effects.
In Doctors for Life Ngcobo J was writing about citizen participation in the
law-making process.17 This article aims to extend the logic of the reasoning
of the Constitutional Court in the Doctors for Life judgment to another
(distinct, narrow, but important) area of political life that potentially has a
direct effect on the quality of the lives of many people in South Africa, namely
the degree to which members of political parties are able to participate in
the activities of their respective political parties. As such, the article aims
to propose an interpretation of the relevant provisions of the Constitution
that would extend constitutionally permitted – or mandated – democratic
participation of citizens beyond traditional areas such as participation in
elections and participation in law-making into the sphere of the operation of
political parties in order to advance the promotion of the human dignity of all.
This argument is not uncontroversial. As Pippa Norris points out, political
parties have long been commonly regarded in some forms of traditional
liberal theory as private associations, which should be entitled to compete
freely in the electoral marketplace and govern their own internal structures
and processes.18 Moreover, in terms of a speciic conception of the right
to freedom of association19 – which focuses on the need to protect private
associations from ‘capture’20 associations require their members to expend
time, energy and funds on building the organisation to achieve a stated set of
15 S Woolman ‘The Widening Gyre of Dignity’ in S Woolman & M Bishop (eds) Constitutional
Conversations (2008) 197; and P de Vos & W Freedman South African Constitutional Law in
Context (2014) 457.
16 Warren (note 8 above) 9.
17 Constitution ss 59(1)(a), 72(1)(a) & 118(1)(a).
18 P Norris Building Political Parties: Reforming Legal Regulations and Internal Rules (2004) 20.
Norris points out that in the traditional view any legal regulation by the state, or any outside
intervention by international agencies, ‘was regarded in this view as potentially harmful by
either distorting or even suppressing pluralist party competition with a country’. But see I van
Biezen ‘Political Parties as Public Utilities’ (2004) 10 Party Politics 701–22.
19 Constitution s 18 states: ‘Everyone has the right to freedom of association.’
20 S Woolman ‘Freedom of Association’ in S Woolman & M Bishop (eds) Constitutional Law of
South Africa 2 ed rev service 5 (2013) 44-9.
aims. Members readily volunteer because of their commitment to the cause.

In terms of this distinct view of freedom of association, organisations must
therefore be allowed to adopt rules, mechanisms of operation and policies to
prevent persons with aims that are inimical to the objectives of the organisation
from ‘capturing’ the organisation and subverting its objectives.21
However, the autonomy and moral agency so closely associated with the
value of dignity is potentially severely curtailed by some rules and practices
of political parties that exclude ordinary members from effective participation
in important decisions relating to that political party. Political parties must
surely have the right to adopt constitutions that contain rules regulating the
ordered functioning of the party and allowing the party to discipline members
for clearly enunciated breaches of its code of discipline. However, this
article argues that when such rules curtail the ability of ordinary members
of political parties to take part – in a meaningful manner – in the election of
party leaders and the formulation of party policies, these rules will, at the very
least, become constitutionally suspect. Because of the central role played by
political parties in the South African system of governance, because of the
horizontal application of the rights contained in the Bill of Rights,22 which
potentially renders political parties subject to the provisions in the Bill of
Rights (including the provisions on the political rights of citizens contained
in s 19 of the Bill of Rights), and because of the speciic interpretation
provided by the Constitutional Court of the right of every citizen freely to
make political choices, including the right ‘to participate in the activities of,
or recruit members for, a political party’,23 it is possible to argue that members
of political parties in South Africa have a constitutional right to participate in
a manner compatible with democratic principles in the activities of a political
party to which they belong. This constitutionally mandated right to democratic
participation in the activities of a political party by its members may extend to
meaningful democratic participation in making decisions on:
21 See De Vos & Freedman (note 15 above) 474. See also Hurley v Irish- American Gay, Lesbian
and Bisexual Group of Boston 515 US 557 (1995) in which the US Supreme Court held that the
right to dissociate included the right to exclude unwanted members and unwanted messages. The
organisers of a St Patrick’s Day parade were willing to allow gay men and lesbians to participate
in the parade, but refused to allow them to march as a unit under their own banners. The court
held that the parade organisers had a right to refuse to endorse a message supporting gay rights
which would be conveyed by permitting the banners. The court held that it boils down to the
choice of a speaker not to propound a particular point of view.
22 See Constitution s 8(2): ‘A provision of the Bill of Rights binds a natural or a juristic person if,
and to the extent that, it is applicable, taking into account the nature of the right and the nature
of any duty imposed by the right.’ In the US context the US Supreme Court has decided that
political parties are in essence private entities. See California Democratic Party v Jones 120
SCt 2402 (2000). This view has been criticised. See S Issacharoff ‘Private Parties with Public
Purposes: Political Parties, Associational Freedoms, and Partisan’ (2001) 101 Columbia LR
274–313.
23 Constitution s 19(1)(b). See generally, Ramakatsa v Magashule (CCT 109/12) [2012] ZACC
31; 2013 (2) BCLR 202 (CC) (18 December 2012). See also M Dafel ‘The Directly Enforceable
Constitution: Political Parties and the Horizontal Application of the Bill of Rights’ (2015) 31
SAJHR 56 concerning the implications of Ramakatsa regarding horizontality.
36 (2015) 31 SAJHR
• the policies of a political party;

• the leadership of the party; and
• the candidates nominated by the party for election to the national and
respective provincial legislatures and local government elective bodies.
ii the limits oF DemocRatic PaRticiPatioN iN the Political sPheRe

Participation in the affairs of an organisation or of government can only
function in a relatively democratic manner if all those who are affected by
the relevant decisions have broadly equal access to the necessary means to
participate meaningfully in these decisions, in proportion to their stake in
the outcome.24 Yet this ideal of ensuring equal access to the means to enable
citizens to participate in important decisions about their lives is probably
impossible to attain in a modern capitalist state – also in the political
sphere. Even where the system of government provides for extensive public
participation (in electing public representatives and in participating in other
political decisions that affect their lives directly or indirectly), not all citizens
will be equally capable of having their voices heard or will be heard equally.
Neither will all citizens have equal access to relevant information that will
allow them to make informed political choices and to act on it. When citizens
are unable to access relevant information this will make it very dificult, if not
impossible, to act with the requisite agency and autonomy, something that is
assumed to be a prerequisite for the realisation of the inherent dignity of the
person.
There are several reasons why equal access is probably unobtainable. First,
the unequal distribution of private economic power almost always translates
into the unequal distribution of access to political power. Those with access to
economic resources can either buy access to those with political power or can
use their resources to try and inluence political decisions in a direct manner.25
Modern political parties need funding to take part in elections and to function
effectively in-between elections and they solicit funds from various sources
including from private donors who often gain special access to the leaders of
24 Warren (note 3 above) 17. The requirement that citizens should have an opportunity to influence
the outcome of a specific decision by the government does not speak to the nature or the quality
of this influence and does not presuppose that each citizen should possess a veto right over any
decisions that affect their lives.
25 Because political parties in a modern capitalist state (with its relatively ‘open’ and ‘free’ and
‘independent’ media) requires access to considerable financial resources to communicate with
the electorate – especially during election campaigns – in order to promote itself, its leaders
and sometimes even its ideas and policies, private individuals and institutions with access to
enormous financial resources can often ‘buy’ access to political leaders by donating to their
campaigns or the campaigns of the party. Moreover, those who possess economic power (and
the access to economic resources that it implies) are more likely to be able to make use of formal
mechanisms aimed at safeguarding participatory democracy, for example, by travelling to
Parliament to make submissions before a Portfolio Committee or by using airtime to phone a
talk-radio programme.
the political parties in return.26 Second, not all citizens are equally informed
about or engaged in the political sphere. Some citizens will be well-informed
and deeply engaged – potentially ensuring more meaningful participation
in legislative and governance decisions – while other citizens will not be
informed or engaged or will be completely misinformed, either because they
take no interest in such affairs or because their sources of information relect
and advance certain economic and political interest.27 Even in a country
where freedom of expression is constitutionally guaranteed, citizens do not
have equal access to all ideas and facts that might be relevant in assisting
them to make informed and free political choices. No citizen has access to
all the media sources available in the country, nor to all the books, ilms and
other forms of artistic expression. Power – also the power to have your voice
and ideas heard and taken seriously – is unevenly distributed in society and
even in a democracy in which free speech is guaranteed, the mass media in
particular contribute to the manufacturing of a consensus in which the voices
of the marginalised are often drowned out and the interests of the powerful are
promoted. In this regard, for example, Edward Herman and Noam Chomsky
argue that it is the function of the mass media to amuse, entertain and inform,
‘and to inculcate individuals with the values, beliefs, and codes of behaviour
that will integrate them into the institutional structures of the larger society’.28
They argue that there are limits to the kinds of critical reporting that can
be done in a democracy – even by the most critical media. There are also
huge inequalities in command of resources, and its effect both on access to
a private media system and on its behaviour and performance. Factors such
as the size, concentrated ownership, owner wealth, and proit orientation of
the dominant mass-media irms; advertising as the primary income source
of the mass media; the reliance of the media on information provided by
government, business, and ‘experts’ funded and approved by these primary
sources and agents of power; ‘lak’ as a means of disciplining the media; and
other ideological and religiously dominant forces, curtail what can be written
and said.29
26 Constitution s 236 requires the adoption of national legislation to ‘provide for the funding
of political parties participating in national and provincial legislatures on an equitable and
proportional basis’. This is done in terms of the Public Funding of Represented Political Parties
Act 103 of 1997. The Act provides for the limited funding of political parties represented in
the legislature. However, it does not regulate donations to political parties, nor does it require
political parties to reveal the sources of their funding. For a critical discussion of political party
funding see I van Biezen & P Kopecký ‘The State and the Parties: Public Funding, Public
Regulation and Rent-seeking in Contemporary Democracies’ (2007) 13 Party Politics 235–54; K
Matlosa (ed) The Politics of State Resources: Party Funding in South Africa (2004).
27 See C Barnett ‘The Limits of Media Democratization in South Africa: Politics, Privatization and
Regulation’ (1999) 21 Media Culture Society 649–71. A lack of trust in political institutions, a
lack of access to diverse sources of news, and myriad other factors may contribute to producing
citizens that are misinformed or unengaged in politics.
28 ES Herman & N Chomsky Manufacturing Consent: The Political Economy of the Mass Media
(1988) 306.
29 Ibid.
38 (2015) 31 SAJHR
Furthermore, not all citizens choose to be members of political parties

and, as we shall see in the next part, political parties play a pivotal role in
‘delivering’ democratic government, which means that membership of a
political party potentially provides citizens with an important platform to take
part in decisions of that party and, hence, indirectly to have an inluence on
the direction of government. Citizens who are not members of any political
party have no direct opportunity to have a say in the direction a political party
takes, who its leaders might be and who it nominates to represent the party in
the various legislative bodies. Because of the pure proportional representation
electoral system in place for national and provincial elections in South
Africa, members of political parties in South Africa potentially therefore
have disproportionate inluence over decisions like who serves in legislatures
compared to non-party members.
Lastly, power does not only reside in institutions usually associated with
the functioning of a democracy: legislatures, the executive, the judiciary and
political parties. Private institutions often wield enormous power and can
make decisions that directly impact on the lives of citizens. Although private
institutions usually operate within a legal framework and are constrained by
regulations, where the regulation is light and imposes few tangible obligations
on the organisation, they will have a relatively free hand to make decisions
that will affect the lives of their employees.30 Such employees will have no
right to participate in the decisions made for the beneit of shareholders or
company management. Such organisations may then also make decisions that
may damage the environment to the detriment of many citizens and in the
absence of strict environmental regulation those affected by the environmental
degradation would have little say in the decisions leading to such degradation.
Such institutions – especially transnational corporations – can inluence
public policies and can successfully agitate for deregulation to leave them
free to pursue the interest of their shareholders unencumbered by onerous
regulations aimed at protecting the interests of citizens.31
30 See K Wyland ‘Neoliberalism and Democracy in Latin America: A Mixed Record’ (2004)
46 Latin American Politics and Society 135–57, who argues that in Latin America so called
neoliberal policies – including deregulation – have strengthened the sustainability of democracy
in Latin America but limited its quality. He argues that tighter external economic constraints
limit governments’ latitude and thereby restrict the effective range of democratic choice, leading
to the weakening of political parties and depressing political participation – eroding government
accountability in the process.
31 See B Balanyá, A Doherty, O Hoedeman, A Ma’anit & E Wesselius Europe Inc. Regional &
Global Restructuring and the Rise of Corporate Power (2000) in which the authors argue that
in Europe transnational corporations – working through lobby groups – have succeeded in
influencing a wide range of policies in Europe. For a US perspective see MA Smith American
Business and Political Power: Public Opinion, Elections, and Democracy (2000).
In this article I do not focus on several of these important issues that make
equal participation in political decisions impossible.32 Although questions
about the better regulation of political party funding – including rules to
enhance the transparency of party funding – and questions about how possible
changes to the electoral system could enhance the quality of the democracy
and of accountability of elected politicians are very important, it is beyond
the scope of this article to deal with these matters in depth. However, I lag
these issues here as I believe the discussion about internal party democracy
does not occur in a vacuum and is affected by the other factors that limit the
ability of the members of political parties to take part in a meaningful way in
the activities of their party and also affect the level of accountability of elected
oficials.
iii the ceNtRal Role PlayeD By Political PaRties iN south aFRica’s

DemocRacy
In South Africa’s system of constitutional democracy political parties occupy
the centre stage.33 South Africa is thus not only a parliamentary democracy
but also a party democracy. There is some disagreement about the wisdom of
placing political parties at the centre of a democracy. Some critics contrast
party democracy with an idealised version of democracy based on individual
representation and argue that the latter form of representation is the best
place to ensure full participation of voters in the democratic process.34
However, the idea that political parties are essential for practising democracy
in the modern state has become dominant in democratic theory.35 Although
there is considerable disagreement in the various strands of democratic
theory on the precise role political parties should perform in order to make
democracy work, as a general proposition, political parties are important for
the proper functioning of a democracy.36 Ideally parties will act as vehicles
to articulate group aims, nurture political leadership, develop and promote
policy alternatives, and present voters with coherent electoral alternatives.
Party cohesiveness in legislatures can contribute to stability – especially in a
parliamentary democracy in which the majority party forms the government
and legislators from that party usually support the political programmes
and policies formulated by the members of the executive because of the
enforcement of strict party discipline. As politicians within the same party
32 I also do not engage in detail in the emerging discussion on the need to reform South Africa’s
electoral system to enhance citizen participation and political accountability in the political
process as this is a complex topic that deserves a more detailed treatment. As will be pointed out
below I do argue that the present pure proportional representation system enhances the need for
heightened internal party democracy.
33 Ramakatsa (note 23 above) para 65.
34 See generally BR Barber ‘The Undemocratic Party System: Citizenship in an Elite/Mass Society’
in RA Goldwin (ed) Political Parties in the Eighties (1980) 34–49.
35 WC Müller ‘Political Parties in Parliamentary Democracies: Making Delegation and
Accountability Work’ (2000) 37 European J of Political Research 309, 309.
36 See generally A Ware Citizens, Parties and the State (1987).
40 (2015) 31 SAJHR
tend to be more responsible to one another than they otherwise would be and
because of the shared electoral fate of those voted in on the strength of a
shared party label, they will not as easily act as free agents (even when the
electoral system and party culture allows for it) because their own interest
and the communal interest of the party they belong to converge. In short, the
argument is that political parties ensure that voters have signiicant electoral
choices, and they help ensure that choices made in elections will translate into
decisions in the public realm. This view of the utility of parties in modern
electoral democracies is a widely shared one.37
In South Africa, the basic assumption underlying the provisions of the
Constitution relating to the functioning of the legislature and the executive in
the national and provincial sphere is that the political party is the main vehicle
through which representative democracy in South Africa is operationalised.
It is therefore not surprising that s 1 of the Constitution, while conirming the
democratic nature of the state, also states that the Republic is founded, inter
alia, on the values of ‘[u]niversal adult suffrage, a national common voters
roll, regular elections and a multi-party system of democratic government, to
ensure accountability, responsiveness and openness’.38
However, because a pure proportional representation electoral system is
in place for election to the National Assembly and provincial legislatures39
and because members of the National Council of Provinces (NCOP) are
selected based on their party membership,40 representative democracy41 is
wholly dependent on political parties for its realisation. No person can serve
in the national or any of the provincial legislatures without being a member
of a political party and without having been chosen or selected by that
political party to represent the interests of the political party in the respective
legislatures.42 This is because at national and provincial level political
parties – and not individual candidates – contest elections and voters cast
their ballots for the political party of their choice.43 Voters have no direct
say on who appears on the electoral lists of political parties, on the order in
which names are to appear on these electoral lists or on the order according
37 See S Scarrow Political Parties and Democracy in Theoretical and Practical Perspectives:
Implementing Intra-party Democracy (2005) 4.
38 Constitution s 1(d).
39 Ibid s 46(1)(d) affirms that the National Assembly consists of members elected in terms of
an electoral system that ‘results, in general, in proportional representation’, while s 105(1)(d)
contains an identical provision regarding provincial legislatures.
40 Ibid s 61.
41 As the Constitutional Court explained in Doctors for Life (note 10 above) para 115: ‘Representative
democracy entails free and fair election through which citizens vote for public representatives
while participatory democracy requires citizens to take part in the governance of the country.’
42 See Majola v The President (48541/2010) [2012] ZAGPJHC 236 (30 October 2012) where the
South Gauteng High Court rejected a challenge to the constitutionality of s 57A read with
schedule 1A of the Electoral Act 73 of 1998 because of an alleged inconsistency between these
provisions and s 19(3)(b) of the Constitution. See L Wolf ‘The Right to Stand as an Independent
Candidate in National and Provincial Elections: Majola v The President’ (2014) 30 SAJHR
159–82 for a critical discussion of the judgment.
43 Ramakatsa (note 23 above) para 66. See also part 3 of the Electoral Act 73 of 1998 (Electoral Act).
to which candidates who appear on individual party lists will be dispatched

to the various legislatures according to the percentage of votes garnered by
that speciic political party.44 Moreover, the president – in whom the executive
authority of the Republic is vested45 – is formally elected by the members of the
National Assembly46 while the various premiers – in whom executive authority
of a province is vested47 – are formally elected by the various provincial
legislatures.48 In theory, this means that the members of the majority party in
the National Assembly and in the various provincial legislatures determine
who will serve as the president and as the various premiers. In practice, it is
the extra-parliamentary leadership of the majority party in each legislature
that determines who serve as president and as the various premiers and then
instruct their elected representatives to vote for the agreed upon candidate.
Voters therefore have no direct or even indirect say in the election of the
president or the various premiers – only the members of the winning party
who participate in its activities have an indirect say in who is elected premier
or president.49 As the members of the various legislatures have been elected
to those legislatures because they were placed on the electoral list of their
respective parties (placed on the list according to criteria or in terms of a
process determined by that political party and its leaders), because of the fact
that strict party discipline operates in South Africa50 and because they will
automatically lose their membership of the legislature if they are dismissed
44 The Electoral Act confirms that parties wishing to contest national or provincial elections can
only do so if they are registered and if they have submitted prescribed lists of candidates. See
ss 26 & 27.
45 Ibid s 85(1).
46 Ibid s 86(1).
47 Ibid s 125(1).
48 Ibid s 128(1).
49 For example, at the ANC’s 52nd National Conference held at Polokwane in 2007, the conference
decided on the following rules for the ‘deployment’ of premiers and the president: ‘At provincial
government level, the PEC should recommend a pool of names of not more than three cadres
in order of priority who should be considered for Premiership, and the NEC will make a final
decision based on the pool of names submitted by the PEC. Those members of either the PEC
or NEC who are being considered for deployment should recuse themselves when decisions
affecting them are made. The provincial leadership, especially Officials, should be afforded
space to make an input on the deployment of MECs. At national government level, Conference
agrees that the ANC President shall be the candidate of the movement for President of the
Republic.’ See ANC 52nd National Conference: Resolutions (20 December 2007) <http://www.
anc.org.za/show.php?id=2536> item 57.
50 For example, s 5.4 of the ANC constitution (as amended and adopted by the 53rd National
Conference Mangaung 2012 <http://www.anc.org.za/docs/const/2012/const.pdf>) states that:
‘ANC members who hold elective office in any sphere of governance at national, provincial or
local level are required to be members of the appropriate caucus, to function within its rules and
to abide by its decisions under the general provisions of this Constitution and the constitutional
structures of the ANC.’ Similarly s 2.5.3.7 of the Democratic Alliance (DA) constitution of
2010 <http://www.da.org.za/docs/542/DEMOCRATIC%20ALLIANCE%20FEDERAL%20
CONSTITUTION%202010.pdf> states that: ‘Any member, including a public representative, is
guilty of misconduct if he or she unreasonably fails to comply with or rejects decisions of the
official formations of the Party’, while s 9.2.6 of the Constitution states that: ‘Members [of a
legislative caucus] must at all times adhere to and support decisions of the relevant caucus and
must not differ publicly from any decision once it has been taken except when it has been decided
by the caucus that a member may on a question of conscience exercise a free vote.’
42 (2015) 31 SAJHR
from that party,51 there is little chance that members of the majority party
in the National Assembly or any of the provincial legislatures will refuse to
obey an instruction from the party leadership to elect a candidate designated
by the party leadership as president or premier respectively. This means that,
in essence, a relatively small number of the members of a governing party
determine who the president of the country and the various premiers of the
provinces will be.
Despite the fact that political parties play a central role in how the democratic
representative institutions – the various legislatures and executives – are
constituted and how they operate in South Africa and even what decisions
legislatures or executives take, the South African Constitution does not contain
any provisions regulating the relationship between political parties and their
public representatives who serve in the various legislatures and executives.52
Although the Constitution does contain several provisions that emphasise
the importance of the participation of all political parties represented in the
various legislatures in the activities of those legislatures in a manner consistent
with democracy,53 it is silent on whether these representatives participate
in such institutions under dictation from the party that they represent and
to what extent party structures can instruct or ‘guide’ decisions made by
elected representatives in their capacity as elected representatives.54 However,
anecdotal evidence suggests that in the context of a culture of strict party
discipline, elected representatives are not free agents and may well be heavily
inluenced by decisions taken by the extra-parliamentary leadership of the
party when they engage in their constitutionally mandated activities as part of
legislatures or as members of national or provincial executives.
The somewhat overbearing role that political parties play in the South
African democracy is regularly criticised. This criticism centres mainly
on the lack of accountability of party representatives in legislatures and
on the strict enforcement of party discipline on elected representatives.
As noted in the previous part, it is beyond the scope of this article to deal
51 Constitution ss 47(3)(c) & 106(3)(c) state that a member of the National Assembly or a provincial
legislature respectively loses his or her membership of the National Assembly or provincial
legislature if he or she ceases to be a member of the party that nominated that person as a member
of the legislature.
52 Ibid s 236 of the Constitution does require the adoption of national legislation to provide for
the funding of political parties participating in the national and provincial legislatures ‘on an
equitable and proportional basis’, but the regulation of political party funding is beyond the scope
of this article.
53 See, for example, Constitution s 57(2)(b) (participation of parties in proceedings of National
Assembly and its committees in a manner consistent with democracy); s 61(1) (parties
represented in a provincial legislature are entitled to delegates in the province’s delegation of the
NCOP); s 78(1)(a) (parties are entitled to representation on mediation committee of Parliament
in substantially the same proportion that the parties are represented in the Assembly); s 116(2)(b)
(participation of parties in the proceedings of the provincial legislature and its committees in a
manner consistent with democracy).
54 In Merafong Demarcation Forum v President of the Republic of South Africa (CCT 41/07) 2008
(5) SA 171 (CC); [2008] ZACC 10; 2008 (10) BCLR 968 (CC) (13 June 2008) the matter of
whether extra-parliamentary political party structures can ‘dictate’ to elected representatives
was raised but given the factual matrix this point was not thoroughly engaged with.
with these important issues. Instead, I focus on the question of intra-party

democracy. I argue that although the Constitution does not contain an explicit
instruction to the legislature to adopt a ‘party law’55 aimed at protecting
and enhancing democratic participation of the members of political parties
in the activities of political parties (especially in the election of its leaders
and public representatives),56 a recent judgment of the Constitutional Court
can be interpreted (in the light of the fact that the value of human dignity
permeates the Bill of Rights) as guaranteeing for party members the right to
participate democratically in decisions made by the party. Furthermore, it is
contended that, on a generous interpretation, the meaning of judgment could
be extended to impose an obligation on the legislature to adopt such a ‘party
law’ – although real questions about the required content of such a ‘party law’
remain.57
Richard Katz cites three possible objectives of a ‘party law’. First, a
‘party law’ may determine what constitutes a political party. Second, a
‘party law’ may regulate the form of activity in which parties may engage.
Third, a ‘party law’ may ensure appropriate forms of party organisation and
behaviour. Katz contends that potentially the most controversial aspect of a
‘party law’ would be those aimed at regulating appropriate forms of intra-
party organisation and behaviour. This is so because such regulation would
intrude into internal issues of party leadership and social relationships. For
example, a ‘party law’ could require political parties to elect party ofice
bearers through a secret ballot of all party members, while a speciic political
party may prefer to choose them through a limited number of nominated
delegates at a party congress. A ‘party law’ might also demand gender or
ethnic balance of its ofice bearers or the candidates standing for public ofice,
or laws might require maintaining party organisations in various national
regions in a federal or quasi-federal structure when a particular party may
have a strong inclination to central control. One can, of course, also imagine
other policy goals that nations may seek to implement through a ‘party law’.
For example, in order to promote nation-building and reconciliation it is
possible to imagine a South African ‘party law’ prohibiting a political party
from oficially denying the existence of apartheid. Although a ‘party law’
may therefore deal with and regulate many aspects of political parties, this
55 The term ‘party law’ is not an exact concept. The term is sometimes used in reference to the
internal rules of political parties, such as party charters or bylaws by which parties govern
themselves. However, in this article I use ‘party law’ to refer to the body of state law concerning
what parties must and must not do – what is legal and illegal in party politics. Generally, this
includes law concerning what constitutes a political party, the form of activity in which parties
may engage, and what forms of party organisation and behaviour are appropriate. See K Janda
Political Parties and Democracy in Theoretical and Practical Perspective: Adopting Party Law
(2005) 3.
56 Some ‘party laws’ also deal with the funding of political parties, with the regulation of their
finances and with requirements to reveal their sources of funding.
57 Apart from provisions dealing with the role of party members in important decisions affecting
the party, a party law may also deal with other important matters such as the funding of political
parties. However, it is beyond the scope of this article to deal with party funding.
44 (2015) 31 SAJHR
article focuses only on those aspects relating to the relationship between

party members and their party.58 The article speciically does not focus on
the relationship between political parties and the electoral system or the
manner in which political party inances are regulated. Furthermore, it does
not make any claims about what impact improved intra-party democracy
might have on the quality of the South African democracy. Instead it
contends that effective participation is a laudable end in itself, linked as
it is with the restoration of the civic dignity of citizens. In any event the
political science literature seem divided on whether more or less intra-party
democracy would improve the quality of a democracy and this may well
depend on contextual factors (too many to engage with here, even if I had
the space and ability to do so competently).59 It is important to take note of
the limited scope of this article; future research on how different levels of
intra-party democracy may affect the quality of democracy in South Africa
may be needed to explore the many questions left unanswered here.
Whatever the constitutionally appropriate relationship between political
party structures and their representatives in the various legislatures
and executives may be, it cannot be gainsaid that political parties play a
disproportionately important role in who governs nationally and provincially
and how they govern. Section 19 of the Constitution implicitly recognises the
importance of political parties in the South African constitutional project.
The section guarantees for every citizen the right to form a political party;
to participate in the activities of, or recruit members for, a political party;
and to campaign for a political party or cause. The section also guarantees
the right for every adult citizen to stand for public ofice and, if elected, to
58 RS Katz ‘Democracy and the Legal Regulation of Political Parties’ <https://www.aswat.

com/f iles/Democracy%20and%20the%20Legal%20Regulation%20of %20Political%20
Parties-%20EN.pdf> quoted in Janda (note 55 above) 3.
59 See RT Pettit ‘Exploring Variations in Intra-party Democracy: A Comparative Study of the British
Labour Party and the Danish Centre-Left’ (2012) 14 The British J of Politics & International
Relations 630–50 (arguing intra-party democracy is not on the wane in democracies as some
suggest); RY Hazan & G Rahat Democracy within Parties: Candidate Selection Methods and
Their Political Consequences (2010) (asking whether too much participation harm democracy
and proposing selection method that balances demands for participation, representation,
competition, and responsiveness); A Gauja ‘The Individualisation of Party Politics: The
Impact of Changing Internal Decision-making Processes on Policy Development and Citizen
Engagement’ (2015) 17 The British J of Politics & International Relations 89–105 (arguing
for more community consultations, online participation and use of supporters’ networks to
enhance intra-party democracy); and K Bruhn ‘Too Much Democracy? Primaries and Candidate
Success in the 2006 Mexican National Elections’ (2010) 52 Latin American Politics and Society
25–52 (using empirical data from Mexico to argue that primary elections seem to hurt party
performance in subsequent general elections).
hold ofice.60 Given the pure proportional representation electoral system that
operates at national and provincial level, the right to stand for public ofice
and to hold ofice can only be realised by citizens through their participation
in political parties. In this article I argue that the rights contained in s 19
of the Constitution can only be fully realised if political parties operate in
a fair and relatively democratic manner in terms of rules contained in the
constitution of the relevant party. In the absence of detailed constitutional
provisions regulating the operation of political parties, I contend that, read
generously, the Constitution may well impose a positive duty on the national
legislature to adopt legislation to regulate internal party democracy to give
effect to s 19 of the Bill of Rights and to safeguard the democratic process
and ensure a minimum threshold of intra-party democracy in all political
parties taking part in the electoral process.
iv iNtRa-PaRty DemocRacy
Internal democracy in political parties – also known as intra-party
democracy – refers to the level and methods of including party members
in the decision-making processes of a party, including in the election of its
public representatives and in the deliberations about party policies. As such
‘intra-party democracy’ is a very broad term, describing the wide range of
methods that would allow for party members to take part in the activities of
the political party they belong to.61 It can include the level to which ordinary
members have a say in the nomination processes of candidates standing for
election to various public bodies,62 the level of democratic participation of the
members of a political party in policy formulation63 and/or in the election of
the leadership64 of the party and even whether members are allowed to ‘recall’
public representatives of their respective parties if they are unhappy with
their performance. Intra-party democracy can also be affected by rules that
prescribe the race and gender composition of candidates’ lists for election to
public bodies. In order to ensure forms of intra-party democracy the internal
60 Section 19 reads in full:

(1) Every citizen is free to make political choices, which includes the right –
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3) Every adult citizen has the right –
(a) to vote in elections for any legislative body established in terms of the Constitution,
and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.
61 Scarrow (note 37 above) 3.
62 Ibid 7.
63 Ibid 10.
64 Ibid.
46 (2015) 31 SAJHR
functioning of political parties is legally regulated in many democracies,65

sometimes because this is mandated by constitutional provisions.66 However,
in some constitutions the regulation of intra-party democracy is explicitly
limited or prohibited.67
There are both pragmatic and principled arguments advanced in favour of
enhanced intra-party democracy. On a pragmatic level advocates for intra-party
democracy argue that parties using internally democratic procedures are likely
to select more capable and appealing leaders, to have more responsive policies,
and, as a result, to enjoy greater electoral success.68 On a level of principle
the argument is advanced that political parties committed to democracy must
‘practice what they preach’ by using internally democratic procedures for
their deliberation and decisions, because this strengthens democratic culture
and promotes the human dignity of citizens who belong to political parties by
empowering such citizens vis-à-vis the elected representatives of the political
party. In this view, one of the dangers of party democracy is that elites within
political parties (or factions within such parties) may wield too much power
and may disempower ordinary citizens who belong to political parties. In
this view, intra-party democracy is a prerequisite for effective political
participation of citizens – especially in a system in which the electoral system
65 Germany is a good example of a country where the legal regulation of intra-party democracy is
well established and thought to be working well. The legislation regulating intra-party democracy
in Germany was originally enacted to respond to international political pressure to convince
the world of the country’s objection to fascism and totalitarianism of all sorts. This resulted
in regulations on intra-party democracy regarding party registration, candidate selection and
leadership elections which is present still today. See J Sundberg ‘Compulsory Party Democracy:
Finland as a Deviant Case in Scandinavia’ Party Politics (1997) 97, 98–9. For example art 15
of The Law on Political Parties (Party Law) amended version of 31 January 1994 (Federal Law
Gazette I) 149, last amended pursuant to art 2 of the Law dated 22 December 2004 (Federal Law
Gazette I) 3673, impose democratic election procedures for the election of members’ assemblies
and executive committees (‘bodies’) of political parties in Germany as follows: ‘(1) The bodies
shall adopt their resolutions on the basis of a simple majority vote unless a higher majority vote is
prescribed by law or by the statutes. (2) The elections of the members of the executive committee
and of the delegates to delegates’ assemblies as well as to bodies of higher-level regional branches
shall be secret. Voting may be open at all other elections unless voters object when asked. (3)
The statutory provisions governing the filing of motions must be such as to ensure a democratic
formation of will and in particular the adequate discussion of proposals also put forward by
minorities. At least the delegates of the regional branches at the next two lower levels must
be granted the right to file motions at the assemblies of higher-level regional branches. Any
commitment to resolutions taken by other bodies shall be impermissible at elections and polls.’
66 Section 6 of the Spanish Constitution (passed by the Cortes Generales in Plenary Meetings of
the Congress of Deputies and the Senate held on October 31, 1978 ratified by the Spanish people
in the referendum of December 7, 1978, sanctioned by His Majesty the King before the Cortes
on December 27, 1978), for example, states: ‘Political parties are the expression of political
pluralism; they contribute to the formation and expression of the will of the people and are
a fundamental instrument for political participation. Their creation and the exercise of their
activities are free in so far as they respect the Constitution and the law. Their internal structure
and operation must be democratic.’
67 For example, art 108 of the Constitution of Colombia, 1991 <http://confinder.richmond.edu/
admin/docs/colombia_const2.pdf> states: ‘In no case may the law impose rules of internal
organization on parties and political movements or demand affiliation with them to participate
in elections.’
68 Scarrow (note 37 above) 3.
requires voters to vote for parties and not for individual candidates.69 It is said
that intra-party democracy has the apparent potential to promote a ‘virtuous
circle’ linking ordinary citizens to government, beneiting the parties that
adopt it, and more generally contributing to the stability and legitimacy of the
democracies in which these parties compete for power. Those who emphasise
the participatory aspects of democracy place the most value on intra-party
democracy as an end in itself.70 As noted above South Africa’s Constitutional
Court has emphasised the importance of the participatory form of democracy
in Doctors for Life.
Regardless of whether these assumptions about the beneits of intra-
party democracy are correct or not, the speciic nature of the South African
Constitution – including those provisions in the Constitution that extend
the application of the Bill of Rights horizontally and make it applicable to
political parties – s 19 of the South African Bill of Rights, as interpreted by
the Constitutional Court in Ramakatsa, at the very least pose questions about
whether the Constitution does not impose a duty on the legislature to adopt
legislation that would enhance intra-party democracy.71
The South African Constitution contains no explicit provisions regulating
the manner in which political parties must operate. The Electoral Commission
Act contains formal requirements for the valid registration of a political party
(which is required before a party can take part in an election)72 and thus
already places some restrictions on the freedom of political parties operating
in South Africa. Although the Act requires a political party to submit a deed
of foundation which has been adopted at a meeting of, and has been signed
by, the prescribed number of persons who are qualiied voters as well as a
constitution of that party as a precondition for registration, the Act does not
impose requirements on what a party’s constitution should contain or how it
should operate. Section 16 of the Electoral Act does prohibit the registration of
a political party if its ‘proposed name, abbreviated name, distinguishing mark
or symbol mentioned in the application resembles the name, abbreviated name,
distinguishing mark or symbol’ of any other registered party to such an extent
that it may deceive or confuse voters.73 The Act also prohibits the registration
of a party if its a proposed name, abbreviated name, distinguishing mark
or symbol contains anything which portrays the propagation or incitement
69 Ibid.
70 Ibid 4. However, it must be noted that the legal regulations of intra-party democracy may in
some circumstances be ineffective if they cannot be enforced. See M Ohman ‘Africa’ in IDEA
Funding of Political Parties and Election Campaigns: A Handbook on Political Finance (2014)
<http://www.idea.int/publications/funding-of-political-parties-and-election-campaigns/upload/
foppec_p3.pdf> 61. He argues that the implementing agencies in Ghana and Sierra Leone
(Electoral Commission of Ghana and Political Parties Registration Commission in Sierra
Leone) have not attempted to enforce the provisions due to a lack of capacity, rendering the legal
regulations ineffective.
71 In Ramakatsa (note 23 above) the Constitutional Court assumed, without discussing the matter
in detail, that s 19 of the Bill of Rights applies to political parties.
72 See s 15 of the Electoral Commission Act 51 of 1996.
73 Ibid s 16(1)(b).
48 (2015) 31 SAJHR
of violence or hatred or which causes serious offence to any section of the

population on the grounds of race, gender, sex, ethnic origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture or language or
which indicates that persons will not be admitted to membership of the party
or welcomed as supporters of the party on the grounds of their race, ethnic
origin or colour.74 The Act also allows the Electoral Commission to cancel the
registration of a political party if that party has changed its deed of foundation
or constitution and the Commission is satisied that change has resulted in that
deed of foundation or constitution containing anything:
[w[hich portrays the propagation or incitement of violence or hatred or which causes serious
offence to any section of the population on grounds of race, gender, sex, ethnic origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture or language; or which
indicates that persons will not be admitted to membership of the party or welcomed as
supporters of the party on the grounds of their race, ethnic origin or colour.75
However, it is not at present a legal requirement for the registration of a

political party by the Electoral Commission that the political party must allow
for the democratic participation of all members of a political party in the
activities of that political party. Nor is it a legal requirement that the leadership
of a political party be democratically elected by its members. The question
that arises is whether, in the absence of a legal framework safeguarding the
rights of the members of political parties and guaranteeing their democratic
participation in important decisions of that party, whether it would be possible
for individuals to have their right – set out in s 19(1)(b) of the Bill of Rights –
to participate in the activities of a political party effectively exercised.
v r aMakatsa v Magashule76 aND its coNsequeNces

In Ramakatsa the Constitutional Court held that the right to participate in
the activities of a political party imposes on every political party the duty
to act lawfully and in accordance with its own constitution. The judgment,
declaring invalid the African National Congress (ANC) Free State elective
conference held in June 2012, raises many questions about the integrity and
fairness of internal democratic processes in political parties in South Africa.
From a Constitutional Law perspective the judgment is important as it afirms
the strong link between internal party democracy and the right of citizens to
take part in the political process and to vote in elections – a right, as I have
pointed out above, guaranteed by s 19 of the Bill of Rights. Earlier decisions
of the Constitutional Court – including the New National Party case77 dealing
with the requirement that only voters in possession of green bar-coded ID
74 Ibid s 16(1)(c).
75 Ibid s 17(1)(d).
76 Note 23 above.
77 New National Party v Government of the Republic of South Africa (CCT9/99) 1999 (3) SA 191;
[1999] ZACC 5; 1999 (5) BCLR 489 (13 April 1999) (NNP).
books could register and vote in elections and the UDM78 case dealing with
loor crossing – have been criticised for the rather narrow and formalistic view
they espoused of democracy and of the obligation imposed by s 19 of the Bill
of Rights.79 In UDM, for example, the Constitutional Court stated:
The rights entrenched under section 19 are directed to elections, to voting and to participation
in political activities. Between elections, however, voters have no control over the conduct of
their representatives. They cannot dictate to them how they must vote in Parliament, nor do
they have any legal right to insist that they conduct themselves or refrain from conducting
themselves in a particular manner.80
As Theunis Roux argues, the argument advanced by the Constitutional

Court here seems misplaced in relation to s 19(1) of the Bill of Rights. After
all the right to participate in the activities of a political party may not only
be meaningfully exercised at election time and is clearly capable of being
violated in-between elections.81 The Ramakatsa judgment can be viewed as a
slight correction on these earlier judgments. In the case – heard in the run-up
to the elective conference of the governing ANC at Mangaung in December
2012 – the appellants, acting in their personal interests and also in the interests
of a class of persons made up by members of the ANC and voters resident in
the Free State, sought an order setting aside the Provincial Conference of the
ANC held earlier that year at Parys as well as the decisions taken there.82
For the purposes of this article the important argument advanced by the
appellants was that their constitutional right to participate in the activities of
the ANC – as guaranteed by s 19(1)(b) of the Bill of Rights – was breached
as a result of a number of irregularities that occurred before the challenged
conference was held.83 The majority of the court – in a judgment co-authored
by Moseneke DCJ and Jafta J – held that it did. As is often the case in
judgments of the Constitutional Court, the court invoked South Africa’s
history as a guiding tool to interpret the obligations imposed by the Bill
of Rights84 and speciically s 19, noting that during the apartheid era many
78 United Democratic Movement v President of the Republic of South Africa (African Christian
Democratic Party Intervening; Institute for Democracy in South Africa as amici curiae) (No 2)
(CCT23/02) 2003 (1) SA 495; [2002] ZACC 21; 2002 (11) BCLR 1179 (4 October 2002) (UDM).
79 See T Roux ‘Democracy’ in S Woolman, M Bishop & J Brickhill (eds) Constitutional Law of
South Africa (2012) 10-1, 1-55.
80 UDM (note 78 above) para 49.
81 Roux (note 79 above) 10-55.
83 Ibid para 60.
84 See the following judgments for evidence of the Constitutional Court’s references to South
Africa’s history: S v Makwanyane (CCT3/94) 1995 (3) SA 391; [1995] ZACC 3; 1995 (6) BCLR
665; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 156, per Ackermann J (‘We have
moved from a past characterised by much which was arbitrary and unequal in the operation of
the law to a present and a future in a constitutional state where State action must be … justified
rationally.’); para 220, per Langa J (the Constitution signalled a ‘dramatic change in the system of
governance’); para 262–66, per Mahomed J (the Constitution represents a ‘decisive break from,
and ringing rejection of, that part of the past that is disgracefully racist, authoritarian, insular,
and repressive’ and must be interpreted against this historical context); para 302, per Mokgoro J
(the historical context within which the Constitution was adopted help to explain its meaning);
para 322, per O’Regan J (the values of the Constitution are ‘not those that have informed our
50 (2015) 31 SAJHR
organisations whose objectives were to advance the rights and interests of

black people – including the ANC – were banned. The court also noted that
until 1990 participation in the activities of these organisations constituted a
serious criminal offence that carried a heavy penalty and asserted that the
‘purpose of section 19 is to prevent this wholesale denial of political rights to
citizens of the country from ever happening again’.85
The judgment conirms the pivotal role that political parties play in the
South African constitutional democracy as ‘elections are contested by
political parties’ and it is ‘these parties which determine lists of candidates
who get elected to legislative bodies’.86 According to the court the ‘success for
political parties in elections lies in the policies they adopt and put forward as a
plan for addressing challenges and problems facing communities’. The court,
seemingly sympathetic to the theory that intra-party democracy represents
a virtuous circle mentioned in the previous part, stated that participation in
the activities of a political party is critical to attaining such success.87 The
court also pointed out that the Constitution imposes a duty on the legislature
to enact national legislation that provides for funding of political parties
represented in national and provincial legislatures ‘in order to enhance multi-
party democracy’ because political parties ‘are the veritable vehicles the
Constitution has chosen for facilitating and entrenching democracy’88 and are
thus indispensable conduits for the enjoyment of the right to vote in elections.
This link between participation in political parties and the realisation of
the right to vote is pivotal to the reasoning of the majority.89 It afirms that
past’). Also see In re: Certification of the Constitution of the Republic of South Africa, 1996 1996
(10) BCLR 1253 (CC) 1267 para 10 (quoting the postamble to the interim Constitution); Azanian
Peoples Organisation (Azapo) v President of the Republic of South Africa 1996 (8) BCLR 1015
(CC) paras 2–3, per Mahomed DP (Constitution is committed to a more just, democratic order);
Shabalala v Attorney-General of the Transvaal 1995 (12) BCLR 1593 (CC) 1605 paras 25–6; S v
Lawrence; S v Negal; S v Solberg 1997 (10) BCLR 1348 (CC) 1395 para 147; Fose v Minister of
Safety and Security 1997 (7) BCLR 851 (CC) 897 para 94, per Kriegler; Soobramoney v Minister
of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (CC) para 8, per Chaskalson P (a commitment
to ‘transform our society into one in which there will be human dignity, freedom and equality,
lies at the heart of our new constitutional order’).
86 Ibid para 66.
87 Ibid.
88 Ibid para 67.
89 The link is important because of the importance the Constitutional Court has placed on the right
to vote – given South Africa’s history in which this right was denied to the majority of citizens.
In August v Electoral Commission 1999 (3) SA 1 (CC); [1999] ZACC 3; 1999 (4) BCLR 363 (CC)
para 17, Sachs J reaffirmed the importance of one of the rights to vote as follows: ‘Universal adult
suffrage on a common voters’ roll is one of the foundational values of our entire constitutional
order. The achievement of the franchise has historically been important both for the acquisition
of the rights of full and effective citizenship by all South Africans regardless of race, and
for the accomplishment of an all-embracing nationhood. The universality of the franchise is
important not only for nationhood and democracy. The vote of each and every citizen is a badge
of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great
disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted
or disgraced, we all belong to the same democratic South African nation; that our destinies are
intertwined in a single interactive polity. Rights may not be limited without justification and
legislation dealing with the franchise must be interpreted in favour of enfranchisement rather
political rights are not limited to the right to vote in an election but extends to
participation in political activities – including the activities of political parties
– in-between elections. However, the judgment does not state in categorical
terms that the right to participate in the activities of a political party necessarily
requires full democratic participation in the activities of that party. Rather the
judgment in Ramakatsa implies, but never spells out explicitly, that what is
required is effective participation in the activities of the party. However, the
court adds the caveat that this must be done in a manner determined by the
political parties themselves. Thus Moseneke DCJ and Jafta J state:
In relevant part section 19(1) proclaims that every citizen of our country is free to make
political choices which include the right to participate in the activities of a political party. This
right is conferred in unqualiied terms. Consistent with the generous reading of provisions
of this kind, the section means what it says and says what it means. It guarantees freedom to
make political choices and once a choice on a political party is made, the section safeguards a
member’s participation in the activities of the party concerned. In this case the appellants and
other members of the ANC enjoy a constitutional guarantee that entitles them to participate
in its activities. It protects the exercise of the right not only against external interference but
also against interference arising from within the party.90
It is unclear what form the Constitutional Court envisages such participation

to take and to what extent the participation must be meaningful and capable
of inluencing both the policies of the party and the selection of its candidates
for public ofice or its ofice bearers. Put differently when the court says s 19
‘safeguards a member’s participation in the activities of the party concerned’
what is the quality of the participation the court envisages is required? Surely,
participation in the activities of a political party will be meaningless if
members can only attend meetings and follow instructions of party leaders
to engage in political campaigning, but are not allowed to participate in some
or other democratic manner in the activities of the party? Would such non-
democratic ‘participation’ not render s 19 no more than a paper right? The
closest the Ramakatsa judgment comes to explain what the content of this
right might be and to what degree this might impose a duty on political parties
to ensure at least certain forms of intra-party democracy in its organisation
is where the majority concludes that the implications of s 19(1) of the Bill of
Rights is that the ‘constitutions and rules of political parties must be consistent
with the Constitution which is our supreme law’.91 But what is the obligation
imposed by s 19(1)(b) on political parties? When will the Constitution and
rules of a political party be in conlict with the right of citizens to participate
in a political party? Does it require political parties to regulate its affairs in an
entirely democratic manner? The majority of judges in the case suggest that
political parties should, at the very least, have some margin of appreciation
(although they do not use that term) in determining how they wish to regulate
how members of the political party should exercise the right to participate
than disenfranchisement.’
91 Ibid para 72.
52 (2015) 31 SAJHR
in the activities of their party as ‘[t]hese activities are internal matters of

each political party’ and parties are therefore ‘best placed to determine how
members would participate in internal activities’.92
What is clear – and what the Electoral Act also requires – is that political
parties, at the very least, are required to adopt a constitution and, furthermore
that this constitution of a political party will be the instrument which must
facilitate and regulate participation by members in the activities of a political
party.93 Tellingly, the majority in Ramakatsa conirmed that political parties
may not adopt constitutions which are inconsistent with s 19 and that a political
party’s constitution can be declared invalid if it fails to comply with the
requirements of s 19 – including the requirement in s 19(1)(b) that members
of a party have a right to participate in its activities.94 But because the ANC’s
constitution was not under attack, the court did not provide a detailed analysis
of what the right to participate might entail and what quality of participation by
a member in the activities of a political party is required by the Constitution.
However, the discussion by the majority of the court about the ANC’s
constitution give some indication of what kinds of provisions would have to
be included in a political party’s constitution to pass constitutional muster.
The court mentions these aspects approvingly, at the very least suggesting
that these aspects are the bare minimum required to ensure a Constitution
of a political party complies with the provisions of the Bill of Rights. It lists
the following attributes – contained in the ANC constitution – as being of
relevance and this gives some indication of the content of s 19(1)(b), it:95
• confers on members the power to determine and formulate the party’s
policies;
• stipulates that the leadership of the party is accountable to its members in
terms of the procedures laid down in its constitution;
• requires the party – in its composition and functioning – to be democratic;
• requires membership of all bodies of the party to be open to all men and
women in the organisation without regard to race, colour and creed;
• guarantees freedom of speech and free circulation of ideas and information;
• guarantees for all members the right to full and active participation in the
‘discussion, formulation and implementation of the policy of the ANC’;
92 Ibid para 73.

93 Ibid. See also the minority judgment of Yacoob J (para 16), where he states: ‘the right to
participate in the activities of a political party confers on every political party the duty to act
lawfully and in accordance with its own constitution. This means that our Constitution gives
every member of every political party the right to exact compliance with the constitution of a
political party by the leadership of that party.’ In his minority decision, Froneman also confirmed
(para 43) that there ‘should be little doubt that the right to participate in the activities of a political
party imposes a duty on every political party to act lawfully and in accordance with its own
constitution’.
94 Ibid para 74.
95 Ibid paras 74 & 75.
• guarantees for all members the right to ‘[t]ake part in elections and
be elected or appointed to any committee, structure, commission or
delegation of the ANC’.
The attributes of the ANC constitution highlighted by the Constitutional
Court all point to active democratic participation of members in the activities
of the party and suggest that s 19(1) may require – at the very least – that the
constitutions of political parties facilitate the democratic participation of its
members in the activities of the party. An expansive interpretation of s 19(1)
and the way the Constitutional Court understood its meaning in Ramakatsa
would give effect to the Constitutional Court dictum in Doctors for Life that
the civic dignity of individuals are enhanced when they participate in political
decisions that impact on their lives. Dignity is about having agency and having
the ability to participate in decision-making. I thus contend that participation
by members in the activities of a political party would be rendered meaningless
if this participation were ‘facilitated’ in a non-democratic manner. This
article therefore argues that the right to participation can only make sense
and have any real practical effect if the right included the ability of members
to participate in a meaningful and democratic way in the activities of a party.
After all, meaningful and demostrate participation in political parties can best
be facilitated through democratic processes.
A more dificult argument to make is that because the Constitution does
not stipulate in detail what the nature of the democratic participation is
that a political party must comply with, the legislature might have a duty to
adopt legislation that would ensure ‘reasonable and effective’ democratic
participation of members in political parties in the activities of political
parties. Although this is a contentious argument, I nevertheless advance the
possible reasoning on which such an argument could be pursued.
Section 7(2) of the Constitution must be at the heart of any argument that
the Constitution may place positive obligation on the legislature to pass a
‘party law’ that would impose a duty on political parties to allow a minimum
threshold of democratic participations in its activities. Section 7(2) of the
Constitution requires the state to take steps to respect, protect, promote and
fulil the rights in the Bill of Rights – including s 19(1)(b) of the Constitution.
In Glenister v President of the Republic of South Africa96 the majority of the
Constitutional Court invoked s 7(2) of the Constitution, which requires the state
to respect, protect, promote and fulil the rights in the Bill of Rights, to afirm
that the Bill of Rights provisions may impose positive obligations on the state
and its organs ‘to provide appropriate protection to everyone through laws
and structures designed to afford such protection’.97 In Glenister the majority
argued that implicit in s 7(2) is the requirement that the steps the state takes to
respect, protect, promote and fulil constitutional rights must be ‘reasonable
96 (CCT 48/10) 2011 (3) SA 347 (CC); [2011] ZACC 6; 2011 (7) BCLR 651 (CC) (17 March 2011).
97 Ibid para 181. See also Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC); [2001] ZACC 22; 2001 (10) BCLR 995 (CC) para 44.
54 (2015) 31 SAJHR
and effective’. These steps may go beyond the implementation of policies.

Because s 8(1) of the Bill of Rights ‘binds the legislature, the executive, the
judiciary and all organs of state’, it follows that the executive, when exercising
the powers granted to it under the Constitution, including the power to prepare
and initiate legislation, and in some circumstances Parliament, when enacting
legislation, must give effect to the obligations s 7(2) imposes on the state.98
Moreover, the Constitutional Court has already found in August99 that s 19 of
the Constitution imposes a positive duty on the legislature to pass legislation
to give effect to it. According to the court: ‘The right to vote [protected by
s 19(3)] by its very nature imposes positive obligations upon the legislature
and the executive.’ Similarly, in the NNP case100 the Constitutional Court said
with reference to the right to vote guaranteed by s 19(3) of the Constitution:
Parliament is obliged to provide for the machinery, mechanism or process that is reasonably
capable of achieving the goal of ensuring that all persons who want to vote, and who take
reasonable steps in pursuit of that right, are able to do so.
The question raised here is whether the right of citizens to participate

meaningfully in the activities of a political party (which I argued above,
requires democratic participation) could be effectively protected in the
absence of a ‘party law’ that sets out the minimum requirements that must be
met by each political party in order to qualify for participation in elections.
As the majority pointed out in Glenister ‘there are many ways in which the
state can fulil its duty to take positive measures to respect, protect, promote
and fulil the rights in the Bill of Rights’101 and the Constitutional Court ‘will
not be prescriptive as to what measures the state takes, as long as they fall
within the range of possible conduct that a reasonable decision-maker in the
circumstances may adopt’.102 Political parties must therefore be free to devise
their own constitutions which regulate the affairs of the party. By arguing that
the Constitution may well impose an obligation on the legislature to adopt a
‘party law’ this article is not arguing against the ability of political parties to
arrange their internal affairs according to the customs and culture appropriate
to the party. Instead, I am arguing for the need of adopting a threshold law
that would stipulate the basic minimum democratic rights that such a party
constitution must accord to its members.
vi coNclusioN
In this article I contend that the Constitution – speciically s 19(1)(b) – may
impose minimum requirements on political parties to facilitate intra-party
democracy and may even oblige Parliament to pass legislation to impose
such minimum requirements. If my contention is correct, dificult questions
98 Glenister (note 96 above) para 190. See also Rail Commuters Action Group v Transnet Ltd t/a
Metrorail 2005 (2) SA 359 (CC); [2004] ZACC 20; 2005 (4) BCLR 301 (CC) para 69.
99 August (note 89 above) para 16.
100 Note 77 above.
101 Glenister (note 96 above) para 191.
102 See also Rail Commuters Action Group (note 98 above) para 86.
will arise about the nature of the proposed legislation and what the extent
of the democratic participation of members in the activities of the political
party would be that would be the minimum required by the Constitution; the
minimum that a reasonable legislator would adopt. It is beyond the scope of this
article to engage with this question. Instead I contend that a positive duty rest
on the national legislature to pass a ‘party law’ which sets out the minimum
requirements for the effective and meaningful participation of members of a
political party in the formulation of the policies of the party, the election of
ofice bearers of the party and the selection of candidates standing for public
ofice by the party. The adoption of such legislature is necessary to give effect
to the full enjoyment of s 19(1)(b) of the Constitution. Such legislation, which
may be made applicable to all political parties who wish to contest elections at
national, provincial or local government level, will go a long way to assist the
Constitutional Court when, inevitably, it is called upon to consider whether
the Constitution of a particular political party is itself unconstitutional. While
Ramakatsa seems to suggest that even in the absence of the adoption of a ‘party
law’ the Constitution of a political party can be tested against the provisions
of the Bill of Rights,103 the court seemed reluctant to interfere too drastically
by prescribing to political parties how it must arrange its internal affairs. But
as I have argued that does not give parties a free hand as the provisions of
the Bill of Rights impose minimum requirements to ensure the facilitation of
intra-party democracy in political parties. Ideally, the elected legislature (and
not the judiciary) should lesh out these requirements by passing a ‘party law’
after considering the policy implications and consulting widely on the matter.
If it fails to do this, so I contend, a court may well be convinced to order the
national legislature to do so.

ITS_MY_PARTY_AND_ILL_DO_WHAT_I_WANT_TO_I

Uploaded by

Document Informationclick to expand document information

Copyright:

Available Formats

ITS_MY_PARTY_AND_ILL_DO_WHAT_I_WANT_TO_I

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

ITS_MY_PARTY_AND_ILL_DO_WHAT_I_WANT_TO_I

Uploaded by

Copyright:

Available Formats

IT’S MY PARTY (AND I’LL DO

WHAT I WANT TO)?: INTERNAL

Key words: bills of rights, democracy, Parliament, political rights

Claude Leon Foundation Chair in Constitutional Governance, Department of Public Law,

constitutional democracy is premised on the idea that governments must be

democracy.6 They also warn that expansive forms of participation by citizens in

view than the former view of democracy. This is so because my argument

aims. Members readily volunteer because of their commitment to the cause.

• the policies of a political party;

ii the limits oF DemocRatic PaRticiPatioN iN the Political sPheRe

Furthermore, not all citizens choose to be members of political parties

iii the ceNtRal Role PlayeD By Political PaRties iN south aFRica’s

to which candidates who appear on individual party lists will be dispatched

with these important issues. Instead, I focus on the question of intra-party

article focuses only on those aspects relating to the relationship between

58 RS Katz ‘Democracy and the Legal Regulation of Political Parties’ <https://www.aswat.

60 Section 19 reads in full:

functioning of political parties is legally regulated in many democracies,65

of violence or hatred or which causes serious offence to any section of the

However, it is not at present a legal requirement for the registration of a

v r aMakatsa v Magashule76 aND its coNsequeNces

As Theunis Roux argues, the argument advanced by the Constitutional

organisations whose objectives were to advance the rights and interests of

It is unclear what form the Constitutional Court envisages such participation

in the activities of their party as ‘[t]hese activities are internal matters of

92 Ibid para 73.

and effective’. These steps may go beyond the implementation of policies.

The question raised here is whether the right of citizens to participate

103 Ramakatsa (note 23 above) para 72.

You might also like