Citizens abroad may vote if they have registered

South Africans living abroad, who had registered to vote, will be able to cast their ballots in April’s national election, the Constitutional Court held recently. Those who have not registered will not be able to.

This was according to two judgments handed down by judges Kate O’Regan and Sandile Ngcobo respectively of the Constitutional Court, in which all the other judges concurred:

  • O’Regan’s judgment dealt with section 33(1)(e) of the Electoral Act, which provided for special votes for certain categories of registered voters who will be abroad on polling day.
  • Ngcobo’s judgment dealt with those who were living abroad but had not registered to vote.

    The challenge was originally brought in the North Gauteng High Court (formerly the Pretoria High Court) by Freedom Front Plus member Willem Richter who is teaching in the UK. Richter’s high court application was successful. When his case came before the Constitutional Court for confirmation, a number of other parties applied to join the proceedings.
  • As a result of O’Regan’s judgment, any citizen who is outside SA on election day and who is registered will be able to cast a vote for the National Assembly on April 15, provided he or she notifies the chief electoral officer by March 27.
  • However, the argument of one of the parties, the Democratic Alliance, that they should also be granted a provincial vote was rejected because the question was “a complex one”, that was raised too late in the day and that might disrupt the elections.

    Ngcobo refused their application because the court was reluctant “to deal in undue haste with a matter of this sort as a court of first and last instance”. But he said this should not be read as “pre-judging the constitutionality” of the laws preventing citizens abroad from registering.

    But Richter’s challenge was successful.
  • O’Regan said the right to vote was both symbolically important and a “crucial working part of our democracy”.
  • She said this right imposed obligations on both the state and citizens. In this case, short of Richter flying back to SA to vote, which was unreasonable, he would not be able to exercise his right. This limitation of his right to vote was unjustifiable and therefore infringed the right to vote in section 19 of the constitution.

    Source: Franny Rabkin, Citizens abroad may vote if they have registered, Business Day, March 13, 2009.

    For text:

    FMF Policy Bulletin/ 17 March 2009
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