Richter v The Minister for Home Affairs and Others (with the Democratic Alliance and Others Intervening, and with Afriforum and Another as Amici Curiae) (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC) ; 2009 (5) BCLR 448 (CC) (12 March 2009)

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Richter v The Minister for Home Affairs and Others (with the Democratic Alliance and Others Intervening, and with Afriforum and Another as Amici Curiae) (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC) ; 2009 (5) BCLR 448 (CC) (12 March 2009)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 09/09
[2009] ZACC 3
WILLEM
STEPHANUS RICHTER
Applicant
versus
MINISTER
FOR HOME AFFAIRS
First Respondent
ELECTORAL
COMMISSION
Second Respondent
MINISTER
FOR FOREIGN AFFAIRS
Third Respondent
together
with
THE
DEMOCRA
TIC ALLIANCE
First Intervening Party
R
OY
HOWARD TIPPER
Second Intervening Party
THE
INKATHA FREEDOM PARTY
Third Intervening Party
and
AF
RIFORUM

First Amicus Curiae
FREEDOM
FRONT PLUS
Second Amicus Curiae
and
Case CCT 03/09
WILLEM
STEPHANUS RICHTER
Applicant
versus
MINISTER
FOR HOME AFFAIRS
First Respondent
THE
ELECTORAL COMMISSION
Second Respondent
MINISTER
FOR FOREIGN AFFAIRS
Third Respondent
Heard
on : 4 March 2009
Decided
on : 12 March 2009
JUDGMENT
O’REGAN
J:
Is
the current legislative scheme which limits the right of South
African citizens who are registered as voters but who will
be out
of the country when the elections take place on 22 April 2009
consistent with the Constitution? This is the question
raised by
the applications before us. Mr Willem Richter, the applicant in
both these applications, is a South African citizen
and registered
voter who is working as a teacher in the United Kingdom. He
intends to return to South Africa at the end of
this year. He
wishes to vote in the 2009 elections but is not permitted to do so
because section 33 of the Electoral Act 73
of 1998 (the
Electoral
Act) restricts
the classes of people absent from the country on
polling day who may vote.
In
seeking to secure the right to vote in these elections, Mr Richter
launched two applications – the first in the High Court
in
Pretoria on 26 January 2009 and the second in this Court the
following day. In the High Court application, he sought an
order
declaring certain provisions of the
Electoral Act and
some of the
regulations promulgated thereunder to be inconsistent with the
Constitution and invalid. In the application for
direct access to
this Court, he sought an order that the dispute in the High Court
be brought directly to this Court and that
the papers in the High
Court be transferred to this Court. On 30 January the Chief
Justice gave directions in relation to
the application for direct
access, affording the respondents until 9 February to lodge
answering affidavits and requiring the
applicant to lodge a further
affidavit on the same day to inform the Court of the status of the
High Court application on that
date.
On 9 February, Ebersohn AJ handed down a judgment in the High Court
application declaring
sections 33(1)(b)
and
33
(1)(e) of the
Electoral Act to
be inconsistent with the Constitution at least in
part, as well as declaring regulations 6(b), 6(e), 9, 11 and 12 of
the Election
Regulations, 2004
1
(the Election Regulations) to be similarly inconsistent with the
Constitution, again at least in part.
2
Ebersohn AJ also made certain mandatory orders requiring the
Electoral Commission (the Commission) to ensure that those

registered voters absent from the country on polling day be given
an opportunity to vote by means of a special vote. Ebersohn
AJ
further ordered that the orders of invalidity be referred to this
Court for confirmation. The day after the judgment was
handed down
Mr Richter launched a second application in this Court seeking
confirmation of the order made by the High Court.
This
brief history explains why there are two applications by Mr Richter
seeking the same relief contemporaneously. The first
is the
application for direct access to this Court in terms of rule 18
lodged on 27 January (case number CCT 03/09); and the
second is the
application for confirmation of the order of constitutional
invalidity made by the Pretoria High Court on 9 February
and lodged
in this Court on 10 February (case number CCT 09/09). As counsel
for Mr Richter has conceded, the first application
has been
overtaken by the second and it is not necessary in this judgment to
consider that application further. It must be
dismissed. The only
issue that arises in relation to it is costs, a matter to which I
turn at the end of this judgment.
It
is important to stop here and record that by the time Mr Richter
launched his application in the High Court in Pretoria,
another
application by the Democratic Alliance and Mr Roy Howard Tipper,
seeking almost identical relief, had been launched
in the High
Court in Cape Town on 23 January 2009. And shortly after Mr
Richter launched his first application in this Court,
two further
direct access applications were received by this Court, one
launched by the AParty and another applicant on 5 February
(case
number CCT 06/09) and the other by Mr Moloko and eleven other
applicants on 10 February (case number CCT 10/09). These
two
applications seek relief similar to that sought by Mr Richter, but
in addition seek relief in relation to the right of
South African
citizens to register as voters abroad.
3
Argument in this matter and the AParty and Moloko matters was
heard together on 4 March, but as the latter raise different

issues, it proved convenient to write separate judgments, one in
this matter and the other jointly in respect of the AParty
and
Moloko matters. Finally, I should record that on 12 February, the
President proclaimed that the elections would take place
on 22
April.
4
The
Electoral Commission, inevitably, was cited as a respondent in all
these applications. Not surprisingly, it, working hard
to ensure
that the forthcoming elections are free, fair and orderly, was
concerned about the flurry of litigation. On 30 January
2009, it
wrote to the applicant in this matter as well as to the Democratic
Alliance suggesting that both applications be consolidated
and
heard by the Constitutional Court as a matter of urgency.
Once
this Court received the application for confirmation, the Chief
Justice issued directions on 11 February 2009 enrolling
it for
hearing, as well as enrolling Mr Richter’s application for direct
access for hearing on 4 March. Unusually the directions
also
invited any party or litigant in another court that wished to
intervene in the confirmation proceedings to lodge an application

for intervention by 18 February. The respondents, being the
Minister for Home Affairs (the Minister), the Electoral Commission

and the Minister for Foreign Affairs, were given until 23 February
to lodge answering affidavits in the confirmation proceedings
and
in response to any application for intervention.
Five
parties lodged applications to intervene. Two sought to be
admitted as amici curiae and three as parties in the confirmation

proceedings. Each of those seeking leave to intervene supported in
broad terms the relief granted by the Pretoria High Court.

Afriforum was one of the parties which sought leave to intervene as
amicus curiae. It is a section 21 company and a civil
rights
organisation that seeks to encourage and assist skilled South
African expatriates to return to South Africa. Before
seeking
leave to intervene, it had approached both Dr Brigalia Bam, the
chairperson of the Electoral Commission, as well as
the President
of the Republic of South Africa, Mr K P Motlanthe, to urge them to
ensure that South Africans living abroad be
permitted to vote.
The
Freedom Front Plus also sought leave to intervene as amicus curiae.
It is a political party registered in terms of the
Electoral
Commission Act 51 of 1996
. The Freedom Front Plus alleged in its
application that it had supported Mr Richter’s application in the
High Court and
this Court and that it supported the relief sought
by Mr Richter. It also alleged that as a political party it had a
direct
interest in the proceedings, in particular because many of
its members have, over the past years, spent time abroad and these

members wish to be able to exercise their right to vote even if
they are absent from the country on polling day.
There
was no opposition to the application of Afriforum and the Freedom
Front Plus to be admitted as amici curiae. Both clearly
have an
interest in the proceedings and both lodged helpful written
submissions which assisted the Court in its deliberations.
In the
circumstances their applications are granted.
The
Democratic Alliance and Mr Tipper lodged an application for leave
to intervene as parties in the confirmation proceedings.
As
mentioned above, they were the first to launch an application to
seek the relief in question in this case. They did so
on 23
January 2009 in the Cape High Court. As a result of the directions
given by this Court on 11 February, the Cape High
Court proceedings
were stayed. To their application for leave to intervene, they
attached the papers lodged in their application
in the Cape High
Court. In the alternative to their application to intervene, the
Democratic Alliance and Mr Tipper sought
direct access to this
Court, in the event that that the confirmation proceedings were
aborted because of a technical flaw.
The relief they seek is
slightly broader than that sought by Mr Richter in that they
challenge the provision of the Election
Regulations which provides
that those voters granted a special vote as contemplated in
section
33
of the
Electoral Act may
only vote in national elections and not
in provincial elections.
The
Inkatha Freedom Party also sought leave to intervene as a party in
these proceedings. Like the Democratic Alliance and
the Freedom
Front Plus, it is a registered political party that avers it has a
direct interest in these proceedings. It should
be added that the
Inkatha Freedom Party had been admitted as amicus curiae in the
proceedings launched in the High Court in
Cape Town by the
Democratic Alliance and Mr Tipper and had lodged an affidavit in
those proceedings relating to the logistical
difficulties,
including affordability, that special votes for absent voters
occasion.
Again,
there was no opposition to the joinder of the Democratic Alliance,
Mr Tipper or the Inkatha Freedom Party as parties
in the
confirmation proceedings. Indeed, it should be noted that from an
early stage the second respondent, the Electoral
Commission,
actively sought the consolidation of all the litigation relating to
the rights of South Africans to vote abroad.
In the circumstances,
it is appropriate that all three be given leave to intervene in the
confirmation proceedings as parties.
Given however that the
confirmation proceedings have not been derailed, the application
for direct access, launched in the
alternative by the Democratic
Alliance and Mr Tipper, need not be granted.
The
Minister opposed the application for confirmation and launched an
application for leave to appeal against other aspects
of the
judgment of the High Court in Pretoria. The Electoral Commission
by and large abided the decision of the Court, but
lodged a helpful
affidavit dealing with the issues under consideration. The
Commission did oppose two aspects of the relief
sought in these
proceedings,
5
a matter to which I shall return later. Both the Minister and the
Commission opposed the application by Mr Richter for direct
access.
The third respondent, having abided the decision of the High
Court, did not appear at all in this Court.
The
electoral system
The
Constitution requires that elections take place on the basis of a
national common voters’ roll. Section 1(d) of the Constitution

provides that amongst the founding values of the Constitution are
“universal adult suffrage, a national common voters’
roll,
regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and openness.”

Section 46(1) of the Constitution then provides that—
“
Subject to Schedule 6A, the
National Assembly consists of no fewer than 350 and no more than 400
women and men elected as members
in terms of an electoral system
that—
(a) is prescribed by national
legislation;
(b) is based on the national
common voters’ roll;
(c) provides for a minimum
voting age of 18 years; and
(d) results, in general, in
proportional representation.”
6
The
Electoral Act is
the national legislation contemplated in
section
46(1)
which establishes the electoral system.
Section 5
of the
Electoral Act provides
for a national common voters’ roll and
requires the Chief Electoral Officer
7
to compile and maintain it. All South African citizens in
possession of a bar-coded identity document may apply for
registration
as a voter on the national common voters’ roll.
8
According to Adv P Tlakula, the current Chief Electoral Officer,
the Electoral Commission has 302 offices located in local

municipalities throughout the country and voters may register at
these offices on any working day. These offices have been
in
existence since 1998.
In
addition, Adv Tlakula tells us, the Electoral Commission runs voter
registration drives prior to national elections. Two
weekend drives
have been held in the run-up to the 2009 elections, one on the
weekend of 8 and 9 November 2008 and the other
on the weekend of 7
and 8 February 2009. Upon registration, a voter’s name is
entered in the voters’ roll for that district
in which he or she
is ordinarily resident.
9
If a voter changes his or her place of ordinary residence, that
voter must apply to have the change recorded in the voters’
roll.
The
Chief Electoral Officer must deregister any voter that he or she is
satisfied no longer qualifies for registration.
10
When a person is deregistered the Chief Electoral Officer must
inform that voter
11
who may appeal against that decision.
12
The voters’ roll must be available for inspection at the
Electoral Commission’s offices.
13
Objections to the inclusion (or exclusion) of names on the voters’
roll may be lodged by any person and are determined by
the
Electoral Commission.
14
The
voters’ roll for any election is the voters’ roll as it exists
on the day that the election is proclaimed.
15
The voters’ roll for the elections to be held on 22 April,
therefore, is the voters’ roll as it existed on 12 February
when
the election was declared. The Electoral Commission tells us that
there are 23 112 936 voters included on the roll as
at that date.
The
national common voters’ roll is segmented into voting districts,
and each voter is registered for a specific district.
The
Electoral Act provides
for the Electoral Commission to establish
voting districts for the whole of the territory of the Republic.
16
There are currently 19 726 voting districts. The Act provides
guidelines for the determination of the boundaries of voting

districts including the number and distribution of eligible voters,
the availability of transport and any geographical features
that
may impede access.
17
The segmentation of the voters’ roll in this way permits it to
be used for national, provincial and local elections, including

ward elections for local government.
The
general rule is that voters must vote at the electoral station in
the voting district for which they are registered.
18
However, there is a provision for voters who cannot vote in the
electoral district for which they are registered on polling
day to
apply to the presiding officer of a voting station in another
district to vote in that district (section 24A).
19
This procedure will permit the voter to vote only in the national
elections, unless the voting district in which the voter
seeks to
vote is in the same province in which the voter is registered.
According to Adv Tlakula, in the 2004 national and
provincial
elections, nearly two million voters voted in terms of section 24A
in voting districts other than those in which
they were registered.
The
Constitution provides that the term of office of the National
Assembly is five years
20
and that the President must call an election. It must take place
within 90 days of the expiry of the term.
21
Provincial legislatures also enjoy five-year terms.
22
The current term of the National Assembly expires on 14 April 2009
with the result that the next national election must take
place
before 13 July. Once the election has been declared, as it has
been, the Electoral Commission is under an obligation
to prepare
and publish an election timetable.
23
That timetable must, amongst other things, stipulate the date on
which the voters’ roll to be used for the election will
be
published and made available for inspection, the date by which
registered parties must submit their list of candidates for
the
election to the Chief Electoral Officer, and provide for dates by
which objections to candidates may be lodged, as well
for the date
by which appeals against decisions on objections must be lodged.
The
Electoral Act is
therefore based on the principle that voters must
vote in the voting districts for which they are registered. There
are two
important exceptions to this rule. The first is the
procedure provided for in
section 24A
, discussed above, whereby a
voter who cannot vote in his or her voting district on polling day,
may, on that day, apply to
the presiding officer at a voting
station in another district for permission to vote in that
district. If the voter is seeking
to vote outside the province in
which he or she is registered, the presiding officer may permit the
voter to vote in the national
elections only.
The
second exception permits voters, in circumstances where they will
not be able to vote at a voting station in the voting
district for
which they are registered on polling day, to apply for a special
vote within the stipulated time which will permit
them to vote
before polling day. That exception is to be found in
section 33
and it is the focus of the issues that arise in this case.
Section
33:
special votes
Section
33
provides as follows—
“
(1) The Commission must
allow a person to apply for a special vote if that person cannot
vote at a voting station in the voting
district in which the person
is registered as a voter, due to that person’s—
(a)
physical
infirmity or disability, or pregnancy;
(b)
absence
from the Republic on Government service or membership of the
household of the person so being absent;
(c)
absence
from that voting district while serving as an officer in the
election concerned;
(d)
being
on duty as a member of the security services in connection with the
election; or
(e)
temporary
absence from the Republic for purposes of a holiday, a business
trip, attendance of a tertiary institution or an educational
visit
or participation in an international sports event, if the person
notifies the Commission within 15 days after the proclamation
of the
date of the election, of his or her intended absence from the
Republic, his or her intention to vote, and the place where
he or
she will cast his or her vote.
(2) The Commission must
prescribe—
(a)
the
procedure for applying for special votes; and
(b)
procedures,
consistent in principle with Chapter 4, for the casting and counting
of special votes.”
Arrangements
for special votes are provided in chapter 3 of the Election
Regulations
24
promulgated in terms of
section 100
of the
Electoral Act.
Regulation
6 provides that chapter 3 of the regulations will
provide for the procedures to govern the application for and
casting and
counting of special votes as required by
section 33(2)
of the
Electoral Act. Regulation
6(e) records, in terms identical
to
section 33(1)(e)
, that voters may obtain a special vote if they
are unable, on polling day, to vote in their voting district due to
their:
“
temporary absence from the
Republic for the purposes of a holiday, a business trip, attendance
of a tertiary institution or an
educational visit or participation
in an international sports events, if the person notifies the
Commission within 15 days after
the proclamation of the election, of
his or her intended absence from the Republic, his or her intention
to vote, and the place
where he or she will cast his or her vote.”
Special
votes in terms of
section 33(1)(a)
Regulation
7
governs the special voting procedure that may, on application by
those who are physically infirm, disabled or pregnant, be afforded.

The procedure requires two voting officers to visit the voter at
an address specified by the voter within the voting district
in
which he or she is registered.
25
The voting officers provide the voter with a voting paper which
the voter then marks in secrecy and places in an envelope,
which is
in turn placed in another sealed envelope and returned to the
presiding officer of the relevant voting district.
26
Special
votes in terms of
section 33(1)(b)
Regulation
9
governs the special voting procedure for voters who are, in terms
of
section 33(1)(b)
, absent from the Republic on government
service. It again provides that the voter must make an application
for a special vote
to a special voting officer at the South African
embassy, high commission or consulate on the dates specified in the
election
timetable. On the same day, the voter is then afforded an
opportunity to vote. It should be noted that voters who fall
within
the terms of
section 33(1)(b)
may vote in both national and
provincial elections – this is a matter to which I shall return
later.
Once
the special votes have been received, the special voting officer
will package and seal the votes and return them to the
Chief
Electoral Officer. The votes are then distributed to the presiding
officers of the voting districts in which the voters
are
registered. In this regard, it should be noted that in terms of
the
Electoral Act, the
ordinary residence of
section 33(1)(b)
voters for determining their voting district is the “head office
in the Republic” of the government department for which
the voter
works.
27
This deeming provision also relates to all the members of the
section 33(1)(b)
voter’s household.
Special
votes in terms of
section 33(1)(c)
and (d)
Regulation
10
regulates the procedure for special votes for election officers
and those on duty as members of the security services on polling

day. It provides that application is to be made to the presiding
officer for the voting district in which the voter is registered
on
times and dates to be specified in the election timetable. If the
application is granted, the voter is permitted to vote
there and
then. The ballot paper is placed in an unmarked envelope and then
sealed in another envelope and securely kept by
the presiding
officer until polling day.
Special
votes in terms of
section 33(1)(e)
Regulations
11
,
12
and
13
govern the procedure for special votes accorded to
those voters who will be absent from the Republic on polling day.
The voter
must, within 15 days of the proclamation of the election
date, give notice to the Chief Electoral Officer of his or her
intention
to apply for a special vote and the place where he or she
intends to do so.
28
Regulation 11(3)
provides that a voter may apply to vote at any
South African embassy, high commission or consulate or at the
office of the
presiding officer of the voting station at which she
or he is a registered voter, on the dates and times specified in
the election
timetable.
Upon
receipt of notification that a voter intends to apply for a special
vote abroad, the Chief Electoral Officer will inform
the head of
the embassy, high commission or consulate abroad of the voter’s
intention.
29
On the date specified in the election timetable, the voter will
then apply to the special voting officer at the relevant embassy,

high commission or consulate.
30
If the application is approved, the voter will then be permitted
to vote there and then but only in elections for the National

Assembly, not for a provincial legislature. The voter will mark
the ballot paper and place it in a sealed unmarked envelope.
31
The
special voting officer will then place the unmarked envelope in
another envelope marked with the applicant’s name, identity

number and voting district number.
32
All the marked envelopes will then be packaged together and sealed
and returned to the Chief Electoral Officer who keeps them
until
polling day when they are counted.
33
Regulation
13
provides for voters contemplated in
section 33(1)(e)
to cast a
special vote before proceeding abroad. A voter who wishes to do so
should inform the Chief Electoral Officer of
this within 15 days of
the proclamation of the election date, just as if the voter wishes
to vote abroad.
34
The Chief Electoral Officer will then inform the presiding officer
of the voting district for which the voter is registered.
35
On the date specified in the election timetable, the voter must
then make application to the presiding officer for the voting

district in which he or she is registered.
36
If the application is granted, the applicant will be permitted to
vote for both the national and provincial elections
37
there and then and the vote will then be sealed, kept and counted
with the other votes cast on polling day.
38
Regulation
14
then provides for the procedures for the counting of special
votes.
Proceedings
in the High Court
In
the High Court in Pretoria, the applicant’s argument was that
section 33(1)(e)
and certain of the regulations promulgated under
the
Electoral Act infringe
the right to vote of those South
Africans who are registered as voters but who will not be in the
country on polling day.
39
By restricting the classes of absent voters, those voters who do
not fall within the prescribed classes are deprived of the
right.
This deprivation, the applicant argued, is an unjustifiable
limitation of the right to vote.
As
mentioned above, the High Court proceedings were launched on 26
January 2009, a day before the application for direct access
was
launched in this Court. In the notice of motion in the High Court,
the applicant gave the respondents only two days (till
28 January)
to lodge their answering affidavits. Again as mentioned above,
this Court gave directions on 30 January in the
application for
direct access calling on the respondents to lodge answering
affidavits by 9 February, and the applicant to
lodge an affidavit
describing developments in the High Court by the same date.
The
Minister lodged an answering affidavit in the High Court on 3
February, the day the matter was heard. The Minister complained

that the time afforded for the lodging of answering affidavits was
“wholly inadequate” given the issues raised by the application.

She also opposed the relief on several bases: that the matter was
not urgent; that the proceedings were flawed given the concurrent

application for direct access in this Court; and that the
proceedings were misconceived because the applicant should first

have waited for the election to be proclaimed and then applied for
a special vote in terms of the regulations and if the special
vote
was refused, have sought a review of that decision.
The
time afforded the Minister and the Electoral Commission to respond
to the application in the High Court was, indeed, inadequate.

Where a litigant challenges the constitutionality of an Act of
Parliament, it is important that the Minister responsible for
the
administration of that legislation be given a fair opportunity to
respond to the challenge. This flows not only from the
principle
of fairness that should apply in all civil litigation and the
useful information that may be so tendered,
40
but also from the respect that courts owe to the other branches of
government. Of course, in determining the time that should
be
afforded respondents in a constitutional challenge, urgency will be
a relevant consideration. In this case, it may well
be that the
High Court thought it needed to proceed urgently in the light of
the directions issued by the Chief Justice on
30 January. Whether
that is so, is not clear from the judgment. In any event, in this
Court, both the Minister and the Electoral
Commission were given a
further opportunity to lodge answering affidavits. The Minister
lodged an answering affidavit in the
direct access applications,
but in the confirmation proceedings chose not to tender any further
evidence. Nothing further
need be said on this score.
I
pause now to consider the third argument raised by the Minister in
the High Court. The proposition was that the application
was not
urgent because the applicant should have waited, applied for a
special vote at the appropriate time and, when refused,
sought to
review the decision. I need immediately to say that this argument
is misconceived for two reasons. The first is
that the route
proposed by the Minister would not provide appropriate relief to an
aggrieved voter. It is clear from both
section 33(1)(e) and
regulations 11 to 13, that the decision to grant a special vote is
made on the date allocated for special
votes. Should that decision
be reviewable, there would be no opportunity for effective relief
to be obtained before the elections
are held. It cannot be right,
therefore, that a voter who has a reasonable apprehension that his
or her right to vote will
be infringed must wait till it actually
is infringed to raise a challenge.
41
Indeed, section 38 of the Constitution makes plain that a person
who fears that their rights are threatened may seek appropriate

relief and does not have to wait till the infringement occurs.
The
second is that the core of the complaint relates to the electoral
scheme and not to the conduct of the Chief Electoral Officer.
The
applicant cannot be deprived of the right to challenge the
constitutionality of the electoral scheme by requiring the

applicant to exhaust other remedies before mounting a
constitutional challenge. The Minister’s argument was not pressed
in this Court and I need say nothing further about it.
The
Electoral Commission lodged an affidavit in the High Court
proceedings on 2 February 2009 in which it made clear that it
would
abide the decision of the High Court. Nevertheless the Commission
sought a stay of the matter pending the decision by
this Court on
the direct access application, and, in the alternative, a
postponement of the hearing of the High Court matter
to afford the
Commission an opportunity to provide the High Court with an
explanatory affidavit setting out information relevant
to the
application and the relief sought by the applicant. The Electoral
Commission did note that, in its view, Mr Richter
was not entitled
to a special vote in terms of section 33(1). The third respondent
lodged a notice stating that it would abide
the High Court
decision.
After
hearing argument on 3 February, the High Court handed down judgment
on 9 February. Noting that the election would be
held before 12
July 2009, and that there was speculation that the polling day
would be between 25 March and 6 May, Ebersohn
AJ concluded that the
matter was urgent.
42
The
High Court then decided that, in restricting the classes of voters
who will be afforded a special vote because they are
absent from
the country on polling day, section 33(1)(e) limits the right to
vote. The High Court reasoned that any limitation
of this right
must be supported by clear and convincing reasons.
43
The High Court also noted that
section 33(1)(b)
of the
Electoral
Act permits
citizens abroad on government service to vote. The
Court considered this to create a “privileged group of citizens”
44
that constituted an unacceptable form of discrimination
45
in breach of section 9 of the Constitution.
The
High Court noted that the only explanation tendered on behalf of
the respondents to justify the provisions related to the
need to
protect the integrity of the polling process and the financial and
logistical strains that permitting a broader class
of absentee
voters to vote would entail.
46
However, the Court reasoned that given that those on government
service would be permitted to vote at embassies, high commissions

and consulates, the only additional cost would be the ferrying of
additional ballot papers to and from these places. This,
the Court
decided, would not constitute an undue burden on the state’s
resources. The Court therefore concluded that the
provisions
constituted unfair discrimination and had to be declared
inconsistent with the Constitution.
The
Court thus made an order granting the relief sought in paragraphs
1, 2, 2.1, 2.2, 2.3, 3, 4, 5, 6, 6.1, 6.2, 6.3, 6.4, 6.5
and 6.7 of
the applicant’s notice of motion and referring the matter to this
Court for confirmation. The Court also ordered
the Minister for
Home Affairs to pay the applicant’s costs including the costs of
two counsel. The relevant paragraphs of
the notice of motion are
as follows:
“
1. This application is
declared to be urgent and non-compliance with the rules of court
pertaining to time limits, form and service
are condoned insofar as
is necessary;
2. The following parts of
section 33
of the
Electoral Act, No 73 of 1998
, are declared to be
in conflict with sections 3(2)(a), 9(1), 10 and 19(3)(a) of the
Constitution of the Republic of South Africa,
Act 108 of 1996 (and
thus invalid):
2.1 Subsection 1(b);
2.2 The words ‘for purposes
of a holiday, a business trip, attendance of a tertiary institution
or an educational visit or participation
in an international sports
event’ in subsection 1(e);
2.3 The words ‘temporary’
and ‘intended’ where they appear in subsection (1)(e).
3. The conflicts mentioned in
paragraph 2 above arise from the unequal treatment in respect of the
allowing of application for
special votes to various categories of
citizens of the Republic of South Africa who are absent from the
Republic of South Africa.
4. The first and second
respondents are ordered to rectify the aforementioned unequal
treatment by extending the right to special
votes to all categories
of citizens absent from the Republic of South Africa.
5. The first, second and third
respondents are ordered to do all things necessary to ensure that
all categories of citizens absent
from the Republic of South Africa
who are registered as voters will be entitled in terms of the
Electoral Act, to
vote by means of special votes in the forthcoming
general elections.
6. The second respondent is
ordered to amend the Election Regulations, 2004, made under the
power vested in it by
section 100
of the
Electoral Act, 73 of 1998
,
as follows:
6.1 By deleting
Regulation
6(b)
in totality;
6.2 By deleting the words:
6.2.1 ‘temporary’
6.2.2 ‘for the purposes of a
holiday, a business trip, attendance of a tertiary institution or an
educational visit or participation
in an international sports event’
6.2.3 ‘intended’
in
Regulation 6(e)
;
1.2
7cm; margin-right: 1.27cm; margin-bottom: 0cm; line-height: 150%">
6.3 By deleting
Regulation 9
in totality;
6.4 By deleting the following
words in
Regulation 11:
1.27c
m; margin-right: 1.27cm; margin-bottom: 0cm; line-height: 150%">
6.4.1 ‘temporary’;
6.4.2 ‘intended’;
6.5 By deleting the following
words in
Regulation 12:
1.27c
m; margin-right: 1.27cm; margin-bottom: 0cm; line-height: 150%">
6.5.1 ‘temporary’;
6.5.2 ‘for the purposes of a
holiday, a business trip, attendance of a tertiary institution or an
educational visit or participation
in an international sports
event’;
6.6 By deleting the
‘temporary’ in
Regulation 13
;
5.0
8cm; margin-right: 1.27cm; text-indent: -1.27cm; margin-bottom: 0cm; line-height: 150%">
6.7 By correcting the forms
contained in appendix 1 thereto, to bring the same in accordance
with the above relief.”
The
High Court thus ordered that the following provisions were
inconsistent with the Constitution and therefore invalid:
section 33(1)(b);
the words “temporary”, “intended” and “for purposes of a
holiday, a business trip, attendance of a tertiary institution
or
an educational visit or participation in an international sports
event” in section 33(1)(e);
Regulation 6(1)(b) which refers to section 33(1)(b) voters;
the words “temporary”, “intended” and “for purposes of a
holiday, a business trip, attendance of a tertiary institution
or
an educational visit or participation in an international sports
event” in regulation 6(1)(e) which refers to section
33(1)(e)
voters;
Regulation 9;
the words “temporary” and “intended” in regulation 11; and
the words “temporary” and “for purposes of a holiday, a
business trip, attendance of a tertiary institution or an

educational visit or participation in an international sports
event” in regulation 12.
Proceedings
in this Court
The
applicant now seeks confirmation of the order in this Court. The
application is supported by the amici curiae, Afriforum
and the
Freedom Front Plus, as well as the intervening parties, the
Democratic Alliance, Mr Tipper and the Inkatha Freedom
Party. The
primary issue before the Court is whether the High Court order
should be confirmed.
There
are two related issues raised by the Democratic Alliance which need
now briefly to be described. Both are based on a
comparison
between the manner in which the Election Regulations provide for
section 33(1)(b) voters and the manner in which
they provide for
section 33(1)(e) voters. The first relates to the 15-day time
limit for notifying the Chief Electoral Officer
of an intention to
apply for a special vote; and the second relates to the rule that
section 33(1)(e) voters are permitted
to vote only in national
elections, not provincial elections.
The
issues to be considered are therefore the following:
(a) To the extent that
section 33(1)(e)
of the
Electoral Act
restricts
the classes of voters who, due to absence from the
Republic on polling day, may apply for a special vote, is it
inconsistent
with the Constitution?
(b) To the extent that section 33(1)(e) requires voters to notify
the Chief Electoral Officer within 15 days of the proclamation
of
the election of their intention to apply for a special vote, and
affords no power of condonation to the Chief Electoral
Officer, is
it inconsistent with the Constitution?
(c) To the extent that regulation 12(4) permits voters afforded a
special vote within the meaning of section 33(1)(e) to vote
only in
national and not provincial elections, is it inconsistent with the
Constitution?
(d) If section 33(1)(e) is inconsistent with the Constitution for
the reasons given in paragraph (a), are regulations 6, 11,
12 and
13, which are based on the provisions of section 33(1)(e)
inconsistent with the Constitution for the same reason?
(e) What remedy, if any, should this Court order, which includes
the question whether the relief granted by the High Court
in terms
of paragraphs 3, 4 and 5 of the notice of motion in the High Court
should be confirmed?
(f) The appropriate order of costs to be made.
Before
dealing with each of these issues, it will be helpful to set out
briefly the key constitutional principles relating to
the right to
vote.
The
importance of the right to vote in our constitutional democracy
On
a number of previous occasions, this Court has had to consider the
importance of the right to vote in our constitutional
democracy.
47
Memorably, in
August v Electoral Commission
, Sachs J
declared that the vote of each and every citizen is a “badge of
dignity and personhood. Quite literally, it says
that everybody
counts.”
48
The precious value of the vote in South Africa arises in no small
measure from a history in which the right to vote was denied
to the
majority of our citizens. Sachs J went on to note that in a
country of great inequality such as South Africa, the right
to vote
declares that we all belong to the same nation and that “our
destinies are intertwined in a single interactive polity.”
49
The
right to vote is symbolic of our citizenship, as Sachs J declared.
In entrenching the right of
every citizen
to vote, section
19 of our Constitution affirms that symbolic value.
50
But the right to vote, and its exercise, has a constitutional
importance in addition to this symbolic value. The right to
vote,
and the exercise of it, is a crucial working part of our democracy.
Without voters who want to vote, who will take the
trouble to
register, and to stand in queues, as millions patiently and
unforgettably did in April 1994, democracy itself will
be
imperilled. Each vote strengthens and invigorates our democracy.
In marking their ballots, citizens remind those elected
that their
position is based on the will of the people and will remain subject
to that will. The moment of voting reminds
us that both electors
and the elected bear civic responsibilities arising out of our
democratic Constitution and its values.
We should accordingly
approach any case concerning the right to vote mindful of the
bright, symbolic value of the right to
vote as well as the deep,
democratic value that lies in a citizenry conscious of its civic
responsibilities and willing to
take the trouble that exercising
the right to vote entails.
Unlike
many other civil and political guarantees, as this Court has
remarked on previous occasions,
51
the right to vote imposes an obligation upon the state not merely
to refrain from interfering with the exercise of the right,
but to
take positive steps to ensure that it can be exercised. The right
to vote necessitates an electoral system and the
calling of
elections. Running an election is a difficult task which calls for
expertise and dedication. Section 190 of the
Constitution
recognises the need for an organisation to take responsibility for
elections. It provides for an Electoral Commission
which will
manage elections, ensure that they are free and fair, and declare
the result in a time to be provided for in national
legislation
that is “as short as reasonably possible.”
52
As a nation, we have been fortunate indeed to have been served by
an Electoral Commission which has taken this task seriously
and
developed an expertise and dedication to its task.
In
designing and establishing an electoral system, one of the crucial
considerations is the need to foster enfranchisement.
The
electoral system should recognise that the right to vote has both
symbolic and democratic value and that wherever possible
the
participation of citizens should be encouraged. There are of
course other important constitutional considerations relevant
to
the design of an electoral system. Amongst them is the need to
ensure that the election process will be free and fair
53
and that the results will be both credible and accurate.
Just
as the state bears a responsibility to take positive steps to
enable elections to take place, the right to vote itself
cannot be
exercised by a citizen unless he or she takes the trouble to
exercise it. The very process of regulating the elections
which
requires the composition of a national voters’ roll, the
establishment of voting stations and voting times will impose

burdens upon members of the public who wish to exercise their right
to vote. First, they will have to register in good time.
Then, on
polling day, they may have to journey some distance to a voting
station; they will have to be in possession of a
bar-coded identity
document; and they may have to stand in a long queue to vote.
These burdens are largely unavoidable.
In
assessing whether the restrictions or burdens placed on a voter who
wishes to exercise his or her right to vote are inconsistent
with
the constitutional protection of the right to vote, a court will
accept that a voter may not complain if the burden imposed
does not
prevent the voter from voting, as long as the voter takes
reasonable steps to do so. As the majority in this Court
noted in
New National Party
:
54
“
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. I conclude, therefore,
that the Act would infringe
the right to vote if it is shown that, as at the date of the
adoption of the measure, its probable
consequence would be that
those who want to vote would not have been able to do so, even
though they acted reasonably in pursuit
of the right.”
55
In
approaching each of the provisions in question in this case,
therefore, I would suggest that to determine whether any provision

constitutes an infringement of section 19 of the Constitution, we
must establish whether the consequence of any of the challenged

provisions is such that, were a voter to take reasonable steps to
seek to exercise his or her right to vote, any of the provisions

would prevent the voter from doing so. In determining what would
constitute reasonable steps for the voter to take, we should
bear
in mind both the fact that the process of voting inevitably imposes
burdens upon a citizen as well as the important democratic
value of
fostering participation in elections that I discussed above.
Should it be found that the provision would prevent
a voter from
voting despite the voter’s taking reasonable steps to do so, the
provision will constitute an infringement of
section 19. The next
question that will arise is whether the infringement is justifiable
in terms of section 36 of the Constitution.
With
this prelude, I turn now to consider each of the constitutional
questions raised.
Section
33(1)(e) – the classes of absentee voters permitted a special
vote
Section
33(1)(e) provides that a registered voter who is unable to vote in
his or her voting district on polling day must be
allowed a special
vote if the inability to vote is due to “temporary absence from
the Republic for purposes of a holiday,
a business trip, the
attendance of a tertiary institution or an educational visit or
participation in an international sports
event.”
Counsel
for the Minister argued that the classes identified in section
33(1)(e) were capable of being interpreted sufficiently
broadly to
include any citizen who is registered as a voter, and who is out of
the country on polling day for whatever reason,
as long as he or
she remains ordinarily resident in the country within the meaning
of
section 7
of the
Electoral Act. Counsel
argued that as
section
2
of the
Electoral Act requires
the provisions of the Act to be
interpreted in the light of the Constitution, it would be
appropriate to read section 33(1)(e)
to enhance enfranchisement in
this way.
There
are two related difficulties with this argument. The first is that
a court may only attribute a meaning to a provision
which it is
reasonably capable of bearing. As Langa CJ stated in
Hyundai
,
“such an interpretation should not, however, be unduly
strained.”
56
To
read section 33(1)(e) in the manner proposed would, in my view,
unduly strain the text. The text lists classes of voters
who are
entitled to special votes. Those classes of voters are those who
are absent because they are on a holiday, a business
trip,
attending a tertiary institution or on an educational visit or
participating in an international sports event. On an
ordinary
reading of these categories, it is not possible to say that a
person such as Mr Richter falls within them. Mr Richter
is a
teacher working on contract in an English school. He is certainly
not on holiday. Nor is he on a business or educational
trip or
visit. Nor is he attending a tertiary institution. And he is not
participating in an international sports event.
It is not
surprising then that the Electoral Commission concluded, as it
confirmed in its affidavit before the High Court,
that Mr Richter
did not qualify for a special vote in terms of section 33(1)(e) and
that it considered itself to be bound by
the provision.
57
The meaning of section 33(1)(e) is clear: it sets a range of
relatively clear categories within which a voter must fall to

qualify for a special vote. It is not a provision which generally
permits those absent from the Republic on voting day for
whatever
reason to a special vote.
The
second difficulty, driving the conclusion that the language of
section 33(1)(e) is not reasonably capable of the meaning
counsel
wishes to attribute to it, arises from the principle that a law
that regulates a fundamental right should be expressed
in a manner
which will enable citizens to determine with relative clarity what
rights they have and do not have. Section 33(1)(e)
on its ordinary
reading identifies groups of people who have a right to a special
vote. Were this Court to attribute an extended
meaning to section
33(1)(e) in order to render it consistent with the Constitution,
the section would continue to misinform
those voters (probably very
many of them) who remain in ignorance of this Court’s judgment.
A corollary of this principle
is the following. Given that section
33(1)(e) requires the Chief Electoral Officer and voting officials
to determine whether
a voter who seeks to come within its ambit
does so, it is important that as far as possible its meaning be
clear. Were this
not to be the case, similarly situated voters
might be treated differently by different voting officers because
the language
of section 33(1)(e) would not provide accurate
guidance to them in determining whether a voter did fall within the
terms of
the subsection.
It
is clear from the applications before us that there are many
registered voters who will be absent from the Republic on polling

day for reasons other than those mentioned in section 33(1)(e). Mr
Richter is one. He is 27 years old, trained as a teacher
at the
University of the North-West and graduated at the end of 2006. He
is registered as a voter and voted in the 2004 elections.
He has
since spent two years in the United Kingdom teaching on contract
and he intends to return at the end of this year.
As someone who
is working abroad, he falls outside the categories mentioned in
section 33(1)(e), yet he has not permanently
left the country.
Mr Tipper, the second intervening party, is another. He is a
47-year old registered voter who has voted in every national

election since 1994. He is currently working as a teacher in South
Korea on a year-long contract which began in April 2008.
He
considers himself to be a resident of South Africa who is abroad
working. He too does not fall within the classes of voters

permitted a special vote by section 33(1)(e).
The
application of Mr Kwame Moloko and eleven others argued at the same
time as the Richter application gives further examples
of ten other
South Africans who are registered as voters who will be absent from
the country on 22 April and who will not be
afforded a special
vote. Mr Moloko, the first applicant in that matter, is a 30-year
old registered voter who is working as
a financial adviser for an
international accounting firm in Vancouver, Canada. He states that
he intends to return to South
Africa once he has gained work
experience and that he intends to raise his children in South
Africa. He voted in the national
elections in 1999 and 2004 but,
again because he does not fall within the terms of section
33(1)(e), he will not be able to
vote in 2009. His wife, Mrs
Lebohang Moloko, a 30-year old South African, is in the same
predicament as are eight of the other
applicants in the Moloko
application.
Apart
from travelling back to South Africa from the United Kingdom, South
Korea and Canada in order to be present in South Africa
on polling
day 2009, there are no steps that Mr Richter, Mr Tipper or Mr and
Mrs Moloko can take to vote in the 2009 elections.
Can it be said
that in requiring them to return home to South Africa to vote, the
election regulations are imposing an obligation
of reasonable
compliance upon them? I do not think so. It is acceptable to ask
voters to travel some distances from their
homes to a polling
station. One cannot quibble, either, at the fact that delays in
casting votes at a polling station may
require voters to queue for
considerable periods of time to vote. It cannot be said, however,
that requiring a voter to travel
thousands of kilometres across the
globe to be in their voting district on voting day is exacting
reasonable compliance from
a voter. All the more so, given that
section 33(1)(b) expressly does not require those working abroad on
government service
to return home to vote, but provides voting
facilities for them at embassies, high commissions and consulates.
In
reaching this conclusion, I am influenced by the fact that, as
several of the parties noted, we now live in a global economy
which
provides opportunities to South African citizens and citizens from
other countries to study and work in countries other
than their
own. The experience that they gain will enrich our society when
they return, and will no doubt enrich, too, a sense
of a shared
global citizenship. The evidence before us, too, shows that many
South African citizens abroad make remittances
to family members in
South Africa while they are abroad, or save money to buy a house.
To the extent that citizens engaged
in such pursuits want to take
the trouble to participate in elections while abroad, it is an
expression both of their continued
commitment to our country and
their civic-mindedness from which our democracy will benefit.
I
conclude therefore that section 33(1)(e) constitutes a limitation
of section 19 of the Constitution by restricting the classes
of
voters who are absent from the Republic on polling day from
participating in elections.
The
next question that arises is whether the limitation occasioned by
section 33(1)(e) is reasonable and justifiable within
the meaning
of section 36 of the Constitution.
58
In determining this question, it is necessary to weigh the extent
of the limitation of the right, on the one hand, with the
purpose,
importance and effect of the infringing provision on the other,
taking into account the availability of less restrictive
means to
achieve this purpose.
59
The
main thrust of both written and oral argument for the Minister in
relation to justification addressed the question whether
citizens
absent from the country should be permitted to register to vote at
foreign missions. This question does not arise
in this case.
There is nothing to be found either in the affidavit lodged by the
Minister in the High Court, the affidavit
opposing direct access to
this Court or in the written argument submitted to this Court to
constitute justification of the
restrictive classes contained in
section 33(1)(e). Indeed, during oral argument, counsel for the
Minister conceded that restricting
the class of registered voters
who are abroad on polling day to obtain special votes was a
limitation of section 19 of the
Constitution and that he could
proffer no justification for the limitation.
In
this regard, it should be noted that in its affidavit lodged in the
High Court, the Ministry of Home Affairs stated that
time was
needed to respond to the applicant’s challenge to
section 33(1)
of the
Electoral Act. It
was stated that time was needed in
particular to deal with the question of the practicability of
extending the categories of
persons provided for in
section 33.
Despite the fact that over a month elapsed between the date on
which the answering affidavit was lodged in the High Court
and the
date on which this Court heard the application, no further
answering affidavit was filed.
I
should add for the sake of completeness that the record includes
the affidavit lodged on behalf of the Minister in the Democratic

Alliance matter in the High Court in Cape Town. In that affidavit,
which is in similar terms to the affidavit lodged in this
Court to
oppose direct access, the deponent on behalf of the Minister points
merely to the perceived difficulty that there
would always be more
categories that can be added to those provided in
section 33(1)(e).
Clearly this is correct, but no cogent reason is given for
preventing any citizen from voting who wishes to vote in the

election, is a registered voter and who makes the effort to make
the necessary arrangements provided for in
regulations 11
to
13
.
On
the other hand, the Electoral Commission both in its affidavit
before the High Court in Pretoria, and again in the affidavit

lodged in this Court, took the position that if ordered to do so it
would facilitate voting overseas by voters similarly situated
to
the applicant. It did not oppose relief in this regard. During
oral argument, counsel for the Commission informed this
Court that
as long the Commission received the notifications contemplated in
section 33(1)(e)
and
regulation 11
by the “end of the month”,
the integrity of the election would not be threatened.
In
deciding whether the limitation of
section 19
occasioned by the
under-inclusiveness of
section 33(1)(e)
is reasonable and
justifiable, it is relevant to note that in addition to those
voters who fall within the categories listed
in
section 33(1)(e)
,
all citizens in government service abroad and the members of their
households are also permitted to vote abroad.
60
It
is also important to bear in mind that in many other open and
democratic societies, facilities are afforded to citizens who
will
be abroad on polling day. A useful survey of the electoral
regulations of 214 countries and territories, compiled by
the
International Institute for Democracy and Electoral Assistance
(IDEA), a non-governmental organisation based in Sweden
whose
objective is to facilitate democratic elections, was furnished to
the Court.
61
That survey suggests that of the 214 countries and territories
reviewed, 115 make provision for voting by absent voters.
Only 14
of the 115 countries or territories restricted the entitlement to
vote on the basis of the activity undertaken abroad
by the absent
voters.
In
the light of the above, I conclude that the limitation of the right
to vote occasioned by
section 33(1)(e)
of the
Electoral Act cannot
be saved by section 36 of the Constitution. Government has not
sought to point to any legitimate government purpose served
by
restricting the categories of registered voters who qualify for a
special vote, and I can think of none. This conclusion
renders it
unnecessary to consider whether the High Court was correct when it
concluded that section 33(1)(e) constituted unfair
discrimination
and/or arbitrary differentiation. I do not consider this matter
further.
It
will be necessary to consider the relief that should flow from this
conclusion in a moment. First, I turn to consider the
two
arguments made by the Democratic Alliance: the first relating to
the 15-day time limit provided in section 33(1)(e) and
the second
relating to provincial votes.
The
15-day time limit in section 33(1)(e)
Section
33(1)(e) requires voters who wish to apply for a special vote to
notify the Chief Electoral Officer of their intention
with 15 days
of the date of the proclamation of the election. Counsel for the
Democratic Alliance argued that the 15-day period
infringed section
19 of the Constitution. His argument was that the time period was
a rigid one and did not afford the Chief
Electoral Officer the
power to condone a failure to comply with that time limit. This
was one of the aspects of the relief
opposed by the Electoral
Commission.
In
my view, this argument must fail. It cannot be said that requiring
voters who seek special votes in terms of section 33(1)(e)
to
notify the Chief Electoral Officer of that fact within 15 days of
the date of proclamation of the election is to ask too
much of a
voter. In this regard, it should be noted that in addition to
being annexed to the Election Regulations, the necessary
forms are
available on the Electoral Commission’s website
62
and the duly completed forms may be submitted by post or fax.
Being
notified of the number of voters who intend to apply for special
votes enables the Electoral Commission to make the necessary

arrangements to ensure that sufficient ballot papers are furnished
to each embassy, high commission and consulate. Such notice
also
allows the Commission to ensure that an adequate number of voting
officers are appointed to ensure that the casting of
votes runs
smoothly and to make adequate arrangements for counting.
Were
a discretion afforded to the Chief Electoral Officer (as counsel
for the Democratic Alliance argued) to condone non-compliance
with
the 15-day period, the administrative burden placed on the Chief
Electoral Officer might well be unbearable. It would
raise the
real prospect of administrative reviews of the decisions of the
Chief Electoral Officer which would inevitably hamper
the efficient
performance of her duties. It is true that there may be voters
who, for whatever reason, fail to notify the
Chief Electoral
Officer in time, just as there may well be voters who, due to
accident or other misfortune, may not arrive
at a voting station
until after closing time and be denied the right to vote. Given
the nature of elections, it is not possible
to accommodate
misfortunes of this kind. Were we to require the
Electoral Act to
do so, the work of the Electoral Commission would be undermined.
This
argument must therefore fail.
The
right to vote in provincial elections
The
next question that arises is whether
regulation 12(4)
, which
provides that a voter afforded a special vote to vote abroad in
terms of
section 33(1)(e)
of the Act may vote only in national
elections and not in provincial elections, is unconstitutional.
This is in contrast to
regulation 9(4) which provides, in effect,
that those in government service may vote in both national and
provincial elections.
63
In
considering whether this is a limitation of the right to vote, it
is important to note that voters who fall within section
33(1)(e)
are afforded a choice. They may vote abroad at an embassy, high
commission or consulate in terms of regulation 12,
or they may
choose to vote in South Africa in their voting district before they
leave the country in terms of regulation 13.
In both cases, they
must notify the Chief Electoral Officer of their intention to do
so.
64
If the voters choose to vote before they leave, then in terms of
regulation 13(4), they may vote in both the national and
provincial
elections. Thus the bar to voting in provincial elections is not
complete. A voter who is in the country at the
time the election
is proclaimed and who will still be here by the time that special
voting in voting districts takes place
will be able to vote both in
the provincial and national elections.
65
A voter, however, who is already abroad at the time the election
is proclaimed will not be afforded that opportunity.
In
its affidavit, the Electoral Commission stated that it opposed
relief granting provincial votes to those voting abroad in
terms of
regulation 12. The primary reason given for this by the Electoral
Commission was that provincial votes would have
to be counted in
the voting district where the voter was registered; and that
transporting provincial votes cast abroad to
the 19 726 voting
districts throughout the country would constitute a logistical
burden on the Commission. The Commission
points out that voters
who qualify under section 33(1)(b) are deemed, in terms of
section
7(2)
of the
Electoral Act, to
be ordinarily resident in the voting
district where the head office of the government department or
institution for which they
work is situated. As most if not all
government departments have their head offices in Pretoria, the
Commission says that
dispersing the votes cast abroad of those on
government service requires the provincial votes to be carried to
one or two voting
districts only.
What
was not clear from the submissions made on behalf of the Commission
was why the votes had to be counted in the voting district
in which
the voter was registered.
Section 33(2)
of the
Electoral Act
confers
a power upon the Electoral Commission to determine the
procedures for the casting and counting of special votes.
Moreover,
section 76 of the Act grants wide powers to the Chief
Electoral Officer to appoint counting officers for “each voting
station
and venue” where counting will take place.
What
is clear is that each special vote needs to be checked against the
appropriate segment of the voters’ roll before it
is counted.
66
When each special vote is granted, it is recorded against the
voters’ roll and that must be checked when counting takes
place.
It is not clear why this cannot be done at a venue other than the
voting station. The evidence tendered by the Commission
shows that
the special votes cast abroad in the national election are counted
at one venue in Pretoria; and that the votes
are tallied not only
for the direct national list of 200 members of the National
Assembly, but also used to determine the provincial
proportional
lists which determine the other 200 members of the National
Assembly. However, it is not clear from the record
before us how
provincial votes cast in foreign missions would be counted in the
2009 election were this Court to order that
such votes may be cast.
It would not ordinarily be desirable so close to the election, to
require the Commission to make urgent
arrangements to provide for
provincial voting abroad when the electoral scheme is not clear as
to how those votes will be managed.
Moreover,
it appears from the affidavit lodged in this Court by Adv Tlakula,
and from oral argument, that an important reason
for the
Commission’s view lies in the fact that those who vote in voting
districts other than those in which they are registered
under
section 24A on polling day may also not vote in provincial
elections if the voting district in which they seek to vote
is in a
province different to the one in which they are registered. Adv
Tlakula states that “[i]n the event that special
votes and
section 24A votes were, in all circumstances, to include the right
to vote provincially, this would create very real
logistical
difficulties.” This statement is made just after Adv Tlakula
points out that in 2004, just under two million
voters cast their
votes in terms of section 24A.
Counsel
for both the Minister and the Commission were concerned that
allowing section 33(1)(e) voters a provincial vote but
not section
24A voters might be arbitrary and irrational and therefore infringe
section 9 of the Constitution.
67
What is clear from this concern, is that the question whether
voters granted special votes in terms of section 33(1)(e), read

with regulation 12, should be permitted to vote provincially is a
complex one. The practical implications of granting urgent
relief
now in relation to the 2009 elections are not clear from the record
before us. Given that no satisfactory explanation
has been given
as to why this particular aspect has only been raised very late in
the day in relation to legislation that has
been on the statute
books for years, and given that the provincial vote question raises
complex constitutional issues for the
first time in this Court,
coupled with the potential for disruption to the elections, we do
not think it is appropriate to
order urgent relief which will
affect the 2009 elections. The matter is raised in the proceedings
pending before the High
Court in Cape Town which have been stayed
pending the outcome of this case. The Democratic Alliance and Mr
Tipper would be
entitled to pursue that matter once judgment has
been handed down in this case should they wish to do so. Given
that we are
persuaded that it is not appropriate, in the light of
the imminence of the 2009 elections, to grant the urgent relief
sought
by the Democratic Alliance and Mr Tipper, we need say
nothing further about the matter.
Remedy
I
have reached the conclusion that section 33(1)(e) is inconsistent
with the Constitution in that it deprives some registered
voters
who will be absent from the country on polling day of a special
vote. The question that now arises is what order this
Court should
make.
It
is immediately clear that the High Court in Pretoria should not
have declared
section 33(1)(b)
of the
Electoral Act to
be invalid
and that order cannot be confirmed. The next question that arises
is whether the severance ordered in relation
to
section 33(1)(e)
is
correct. There can be no doubt that it is necessary to sever the
specific classes of voter from the section, so the High
Court was
correct to sever the words “for purposes of a holiday, a business
trip, attendance of a tertiary institution or
an educational visit
or participation in an international sports event”. The High
Court also severed the word “temporary”
from the section. In
my view, this order is correct. If these words are severed, the
section that will remain will read as
follows:
“
(e)
absence
from the Republic, if the person notifies the Commission within 15
days after the proclamation of the date of the election,
of his or
her intended absence from the Republic, his or her intention to
vote, and the place where he or she will cast his or
her vote.”
The
language of the section, thus rendered, will be easy to interpret
and apply – an issue that was raised by the Electoral
Commission
in its comprehensive and helpful affidavit before this Court. The
language of the section will now make clear that
special votes
should be accorded to any registered voter who will be absent from
the Republic on polling day and who gives
notice in the prescribed
time to the Chief Electoral Officer. The High Court also severed
the word “intended” from
section 33(1)(e).
No argument was
addressed to the Court on this severance, and it does not seem to
me to be one that is necessitated by the
reasoning in this
judgment. This severance is therefore not confirmed.
This
conclusion must now be applied to the Election Regulations
promulgated under the Act. It follows that the High Court’s

declaration of invalidity in relation to regulation 6(1)(b) which
relates to section 33(1)(b) voters cannot stand. Similarly,
its
declaration that regulation 9 was invalid cannot stand as that
regulation, too, governs the procedure for special votes
for
section 33(1)(b) voters. Nothing in this judgment supports the
High Court’s conclusion that these provisions are invalid.
On
the other hand, the High Court’s severance of the words
“temporary” and “for purposes of a holiday, a business trip,

attendance of a tertiary institution or an educational visit or
participation in an international sports event” from regulation

6(e) should be confirmed, though its severance of the word
“intended” from the same regulation cannot stand. Similarly,

the High Court’s severance in relation to regulations 11 and 12
should stand save for its decision to sever the word “intended”

from regulation 11. For consistency, the word “temporary” as
well as the words “for purposes of a holiday, a business
trip,
attendance of a tertiary institution or an educational visit or
participation in an international sports event” should
also be
severed from regulation 13, although the High Court did not make
this order.
The
effect of these orders is that any registered voter who will not be
in the country on polling day will be entitled to a
special vote in
terms of section 33(1)(e). However, the period for these voters to
notify the Chief Electoral Officer of their
intention to apply for
a special vote and to indicate the place where they intend to apply
has now elapsed. It elapsed on
27 February 2009, 15 days after the
election was proclaimed.
Counsel for the Minister and the Electoral Commission were asked
during oral argument how this could be rectified. As mentioned

above, counsel for the Commission, indicated that it would be
possible for the Commission to accommodate special votes to be
cast
abroad as long as the Commission received notification from voters
by “the end of the month”. It seems to me that
the just and
equitable order to make for purposes of urgent relief in the
imminent elections would be to issue an order stating
that the
period of 15 days contemplated in
section 33(1)(e)
of the
Electoral
Act shall
commence to run on the date that this judgment is handed
down. If this approach is adopted, those voters eligible for a
special
vote under
section 33(1)(e)
will get no more and no less
time than is their due to give notice of their intention to apply
for a special vote. As the
judgment is handed down on 12 March,
the 15 days will expire on 27 March 2009. This remedy is least
invasive of the scheme
in the Act. Voters who wish to apply for
special votes should therefore notify the Chief Electoral Officer
of their intention
to do so on the form provided for in the
regulations and in the stipulated manner on or before 27 March.
The
final question that arises is whether this Court should confirm the
orders sought in paragraphs 3, 4 and 5 of the applicant’s
notice
of motion in the High Court.
68
It is against these orders that the Minister has sought leave to
appeal.
69
That application should be granted. I will deal with each
paragraph separately. In my view, the order granted by the High

Court in terms of paragraph 3 of the applicant’s notice of motion
cannot be confirmed as it does not accord with the conclusions

reached in this judgment. This judgment concludes that section
33(1)(e) is inconsistent with the Constitution on the ground
that
it unjustifiably infringes section 19. I do not conclude, as
paragraph 3 states, that section 33(1)(e) is inconsistent
with the
Constitution as it constitutes “unequal treatment”.
Although
the orders granted in terms of paragraphs 4 and 5 do accord with
the reasoning in this judgment, I do not think it
just and
equitable that orders in these terms be made. In my view, the need
to ensure that voters who will now qualify for
a special vote in
terms of section 33(1)(e) is adequately catered for by the proposed
order discussed above.
70
The Chief Electoral Officer undertook in her affidavit which was
confirmed in the written and oral submissions made on behalf
of the
Commission, that the Commission would take all steps necessary to
comply with any order made by this Court. No further
mandatory
relief is therefore necessary.
Costs
The
ordinary rule in this Court is that a litigant, who has
successfully vindicated constitutional rights against the state,

should be awarded his or her costs. On that basis, the Minister
who opposed the application should be ordered to pay the costs
of
Mr Richter in the High Court and this Court, such costs to include
the costs of two counsel. I am not deterred from this
conclusion
by the fact that the Minister has succeeded in her application for
leave to appeal, for that success is not substantial
and relates to
the proper form of the just and equitable order to be made by this
Court. The Minister’s application for
leave to appeal and
limited success in her appeal therefore had no material effect on
the order made by the Court. The applicant
has succeeded in all
material respects and should therefore recover his costs in respect
of that appeal. As the High Court
has already ordered the Minister
to pay the applicant’s costs in that Court, it is not necessary
for that order to be repeated
in this Court.
I
have described above how Mr Richter launched a direct access
application in this Court shortly after launching an application
in
the High Court. The direct access application was overtaken by
events once the High Court made an order of constitutional

invalidity. It is necessary now to consider the appropriate order
of costs that should be made in relation to that application.
The
Minister contended that she should be entitled to the costs she has
incurred in connection with the application for direct
access. In
support of her contention she submitted that the application for
direct access was not necessary as Mr Richter
had already launched
proceedings in the High Court and that Court was due to hear the
matter in a relatively short space of
time. The application has
therefore caused her to incur unnecessary costs. These submissions
are not without force.
However,
Mr Richter was entitled to approach this Court in order to
vindicate his right to vote. Approaching this Court directly
in
the face of his application in the High Court may not have been
advisable, but it cannot be said to have been vexatious.
If
anything, it was due to excessive caution in the light of the
pending general elections. We consider that the just and
fair
order to make in these circumstances is that each party is to pay
its own costs.
The
ordinary rule in this Court is that amici pay their own costs.
There is no reason why that rule should not apply here as
well. No
order is therefore made in relation to the costs incurred by the
amici curiae.
Finally,
the question arises as to the costs of the three intervening
parties. The Democratic Alliance and Mr Tipper were the
first to
launch proceedings relating to the constitutionality of section
33(1)(e). They did so in the High Court in Cape Town
shortly
before Mr Richter launched his application in Pretoria. That High
Court application was overtaken by the order of
invalidity made by
the Pretoria High Court and was accordingly stayed by agreement
between the parties. The result was that
the Democratic Alliance
and Mr Tipper sought leave to intervene as parties in this Court
and were so admitted. Again, given
that both the Democratic
Alliance and Mr Tipper genuinely sought to vindicate constitutional
rights against the Minister, the
costs of their intervention in
this Court should be paid by the Minister. The costs of the
intervention in this Court shall
include the costs of two counsel.
We can make no order relating to the costs in the High Court in
Cape Town. Those proceedings
are not before us.
The
Inkatha Freedom Party is in a slightly different position. It has
been admitted as a party in this Court having been previously

admitted as amicus curiae in the Cape High Court in the litigation
instituted by the Democratic Alliance and Mr Tipper. It
did make a
significant contribution in terms of both evidence tendered and
argument submitted in relation to the issues before
the Court. In
the circumstances, and given that it has been admitted as a party
in this Court, it should be awarded its costs
in this Court. Thus
the Minister will be ordered to pay the costs of the Inkatha
Freedom Party in this Court, such costs to
include the costs of two
counsel. I should add, however, that it may not always be the case
that a party who has been admitted
as an amicus curiae in another
court will, when that matter arrives at this Court, be admitted as
a party rather than an amicus
curiae.
To
recap, the effect of the order on the right to vote in the imminent
elections will be as follows. All South African citizens
who are
registered voters and who will be abroad on polling day will be
entitled to vote in the election for the National Assembly
on 22
April 2009 provided they give notice of their intention to do so,
in terms of the Election Regulations, on or before
27 March to the
Chief Electoral Officer and identify the embassy, high commission
or consulate where they intend to apply for
the special vote.
Order
The
following order is made:
1. The application for direct access by the applicant in case CCT
03/09 is dismissed.
2. There is no order for costs in relation to the application
dismissed in paragraph 1 of this order.
3. The applications of the first and second amici curiae to be
admitted as amici curiae are granted.
4. The applications of the first, second and third intervening
parties to intervene in these proceedings are granted.
5. The application by the Minister for Home Affairs for leave to
appeal is granted.
6. The appeal of the Minister for Home Affairs succeeds in part
and fails in part to the extent set out in this order.
7. Paragraph 1 of the order made by the High Court in Pretoria in
case TPD 4044/09 is confirmed only to the extent set out
in this
order.
8. The words “temporary” and “for purposes of a holiday, a
business trip, attendance of a tertiary institution or an

educational visit or participation in an international sports
event” in section 33(1)(e) of the
Electoral Act 73 of 1998
are
declared to be inconsistent with the Constitution and invalid.
9. The words “temporary” and “for purposes of a holiday, a
business trip, attendance of a tertiary institution or an

educational visit or participation in an international sports
event” in regulation 6(e) of the Election Regulations, 2004

promulgated in terms of section 100 of the Electoral Act 73 of 1998
(published under GN R12 GG 25894 of 7 January 2004, as
amended) are
declared to be inconsistent with the Constitution and invalid.
10. The word “temporary” in the subtitle to regulation 11 of
the Election Regulations, 2004 is declared to be inconsistent
with
the Constitution and invalid.
11. The word “temporary” as it appears in the subtitle to
regulations 12 and 13 of the Election Regulations, 2004 is
declared
to be inconsistent with the Constitution and invalid.
12. The words “temporary” and “for purposes of a holiday, a
business trip, attendance of a tertiary institution or
an
educational visit or participation in an international sports
event” in regulation 12(2) of the Election Regulations,
2004 are
declared to be inconsistent with the Constitution and invalid.
13. The words “for purposes of a holiday, a business trip,
attendance of a tertiary institution or an educational visit
or
participation in an international sports event” in regulation
13(2) of the Election Regulations, 2004 are declared to
be
inconsistent with the Constitution and invalid.
14. It is declared that any registered voter who, in terms of
this order, qualifies for a special vote in terms of
section
33(1)(e)
of the
Electoral Act 73 of 1998
, may within fifteen (15)
days of the date of this judgment notify the Chief Electoral
Officer of his or her intention to apply
for a special vote as
contemplated in
section 33(1)(e)
of the
Electoral Act 73 of 1998
,
read with regulation 11(1) of the Elections Regulations, 2004.
15. The Minister for Home Affairs is ordered to pay the costs of
the applicant in this Court in relation to case CCT 09/09
(that is,
the application for confirmation of the High Court order, the
Minister’s appeal against that order and application
for leave to
appeal), such costs to include the costs of two counsel.
16. The Minister for Home Affairs is ordered to pay the costs of
the Democratic Alliance, Mr Roy Howard Tipper and the Inkatha

Freedom Party in this Court in relation to their intervention in
this Court in CCT 09/09, such costs in relation to each party
to
include the costs of two counsel.
17. Save for the orders in paragraphs 15 and 16, no other costs
order is made.
Langa
CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, Sachs
J, Skweyiya J and Yacoob J concur in the judgment
of O’Regan J.
For the
applicant in CCT 03/09
and CCT
09/09:
For the
first respondent in CCT 03/09
and CCT
09/09:
For the
second respondent in CCT 03/09 and CCT 09/09:
For the
first and second intervening
parties:
For the
third intervening party:
For the
first amicus curiae:
For the
second amicus curiae:
Advocate
Q Pelser SC and Advocate BS du Plessis instructed by Hurter &
Spies Attorneys.
Advocate
PM Mtshaulana SC, Advocate H Maenetje and Advocate K Pillay
instructed by the State Attorney.
Advocate
IAM Semenya SC, Advocate N Fourie and Advocate N Rajab-Budlender
instructed by Bowman Gilfillan Inc.
Advocate
S Rosenberg SC and Advocate A Katz instructed by Minde Schapiro &
Smith.
Advocate
AM Stewart SC and Advocate M du Plessis instructed by Lourens de
Klerk Attorneys.
Advocate
HP Higgins instructed by Nelson Borman & Partners Inc.
Advocate
Q Pelser SC and Advocate BS du Plessis instructed by Borman and Fen
Incorporated.
1
Published in GN R12 GG 25894 of 7 January 2004, as amended by GN
R217 GG 26058 of 16 February 2004, GN R344 GG 26154 of 12 March

2004, GN R429 GG 26207 of 29 March 2004 and GN R1206 GG 31454 of 26
September 2008.
2
Richter v Minister of Home Affairs and Others
, Case No
4044/09, North Gauteng High Court, Pretoria, 9 February 2009,
unreported. The full terms of the order made by Ebersohn
AJ are set
out below at [45]-[47].
3
Judgment in the matter of
AParty and Another v Minister for Home
Affairs and Others; Moloko and Others v Minister for Home Affairs
and Others
[2009] ZACC 4
is handed down contemporaneously with
this judgment.
4
Published in GN 10 GG 31900 of 12 February 2009.
5
The two issues on which the Electoral Commission opposed relief are
the challenge to the 15-day notice period contained in section

33(1)(e), and the challenge concerning provincial votes for voters
who vote abroad. Both these issues are dealt with at [80]-[84]
and
[85]-[91] below. The Electoral Commission also opposed the relief
sought in the AParty case (above n 3), argued at the same
time as
the Richter matter, which is dealt with in a separate judgment
handed down on the same day as this one. The relief opposed
in that
case related to the question whether voters should be permitted to
register as voters outside South Africa.
6
See also section 105(1) of the Constitution which, in relation to
provincial legislatures, provides that—
“
Subject
to Schedule 6A, a provincial legislature consists of women and men
elected as members in terms of an electoral system
that—
(a) is prescribed by national legislation;
(b) is based on that province’s segment of the
national common voters’ roll;
(c) provides for a minimum voting age of 18 years; and
(d)
results, in general, in proportional representation.”
7
The Chief Electoral Officer is appointed in terms of
section 12(1)
of the
Electoral Commission Act 51 of 1996
and is the head of the
administration of the Electoral Commission.
8
Electoral Act, section
6(1).
9
Id at
section 8(3).
10
">
10
Id at
section 11(1)(b).
11
">
11
Id at
section 12(1)(c).
12
">
12
Id at
section 13.
13
">
13
Id at
section 16.
14
">
14
Id at
section 15.
15
">
15
Id at
section 24.
16
">
16
Id at
section 60(1).
17
">
17
See
section 61
of the
Electoral Act which
provides guidelines for
the determination of boundaries for voting districts, and
section
64(3)
of the
Electoral Act which
provides similar guidelines for the
establishment of voting stations.
18
Electoral Act, section
38(1).
19
Section 24A
of the
Electoral Act provides
as follows:
“
(1) A person whose name does not appear on the
certified segment of the voters' roll for a voting district and who
applied for
registration as a voter before the date the election was
proclaimed may submit to the presiding officer of the voting station
for that voting district—
(a) his or her
identity document;
(b) a sworn or solemnly affirmed statement in the
prescribed form containing—
(i) his
or her full name, identity number and date of birth;
(ii)
his or her finger print;
(iii)
the address where he or she ordinarily resides;
(iv)     a declaration that he or she
applied for registration as a voter before the date of publication
of the
proclamation proclaiming the election;
(v)     a request that his or her name
should be included in the certified segment of the voters' roll for
that
voting district for the purposes of the election for the
National Assembly and also for the purposes of the election for the

provincial legislature if he or she had so applied for registration
in the province in which that voting district is situated;
and
(vi)     a declaration that he or she
is a South African citizen, is 18 years of age or older and is not
disqualified
from voting in the election in question; and
(c)     proof that he or she applied
for registration as a voter before the date of publication of the
proclamation.
(2) If the presiding officer is satisfied that the
contents of the statement are correct—
(a) the presiding officer must make an endorsement to
that effect on the statement; and
(b) the person making the request contemplated in
subsection (1)(b)(v) must be regarded as having been registered as a
voter on
the certified segment of the voters' roll for the voting
district requested for the purposes of the election for the National
Assembly and also for the purposes of the election for the
provincial legislature if that person had applied for registration

in the province where that voting station is situated.”
Section 24A
was inserted
in the Act by the
Electoral Laws Amendment Act 34 of 2003
.
20
Section 49(1) of the Constitution.
21
Section 49(2) of the Constitution.
22
Section 108(2) of the Constitution provides that the Premier of the
province must call an election within 90 days of the expiry
of the
term of the provincial legislature.
23
Section 20
of the
Electoral Act, read
with Schedule 1 to that Act.
24
Above n 1.
25
Regulation 7(5) of the Election Regulations provides for the voting
officers to visit the voter “at an address within the voting

district, specified in the application” for the special vote.
Regulation 8 provides for a similar voting procedure for a
physically infirm, disabled or pregnant voter who wishes to vote at
an address in a voting district, which is not the voting district
in
which he or she is registered.
26
Election Regulations, regulation 7(6).
27
Electoral Act, section
7(2).
28
This time period is specified in
section 33(1)(e)
of the
Electoral
Act itself
.
29
Election Regulations, regulation 11(4)(a).
30
Id at regulation 12(1).
31
Id at regulation 12(5).
32
Id at regulation 12(5).
33
Id at regulation 12(6) and (7).
34
Id at regulation 11(1).
35
Id at regulation 11(4)(b).
36
Id at regulation 13(1).
37
Id at regulation 13(4).
38
Id at regulation 13(5) and (6).
39
The applicant also argued that the section
infringed the rights to dignity and equality
40
See section 34 of the Constitution.
41
See
New National Party of South Africa v Government of the
Republic of South Africa and Others
[1999] ZACC 5
;
1999 (3) SA
191
(CC);
1999 (5) BCLR 489
(CC) at para 125 (per O’Regan J in
dissent, but not on this point).
42
Richter
a
bove n 2 at paras 24-7.
43
Id at para 36.
44
Id at para 60.
45
Id at para 61.
46
Id at para 77.
47
African Christian Democratic Party v
Electoral Commission
and
Others
[2006] ZACC 1
;
2006 (3) SA 305
(CC);
2006 (5) BCLR 579
(CC);
Minister of Home
Affairs v National Institute for Crime Prevention and the
Reintegration of Offenders (NICRO) and Others
[2004] ZACC 10
;
2005 (3) SA 280
(CC);
2004 (5) BCLR 445
(CC);
New
National Party
above n 41;
Democratic
Party v Minister of Home Affairs and Another
[1999] ZACC 4
;
1999 (3) SA 254
(CC);
1999 (6) BCLR 607
(CC);
August
and Another v Electoral Commission and Others
[1999]
ZACC 3
;
1999 (3) SA 1
(CC);
1999 (4) BCLR 363
(CC).
48
August
above n 47 at para 17.
49
Id.
50
Section 19 of the Constitution provides:
“
(1) Every citizen is free to make political
choices, which includes the right—
(a) to form a political party;
(b) to participate freely 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.”
51
See
New National Party
above n 41 at paras 13-4 (per Yacoob
J);
August
above n 47 at para 16 (per Sachs J); and
NICRO
above n 47 at para 28 (per Chaskalson CJ).
52
Section 190(1)(c) of the Constitution.
53
Section 190(1)(b) of the Constitution.
54
Above n 41.
55
Id at para 23.
56
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re: Hyundai

Motor Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at
para 24.
57
Richter
above n 2 at paras 19-20.
58
Section 36(1) of the Constitution provides:
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.”
59
See
S v Manamela and Another
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at paras 34 and 66. See also
NICRO
above n 47 at para 37.
60
Section 33(1)(b)
of the
Electoral Act.
61
Ellis
et al
Voting from Abroad: The International IDEA Handbook
(Stockholm, 2007). See generally 11-20.
62
http://
www.elections.org.za.
63
It may well be that such voters may also vote in local government
elections. This matter does not arise in this case and therefore
is
not considered further.
64
Regulation 11 of the Election Regulations.
65
The timetable is published in GN 189 GG
31906 of
16 February 2009.
In terms of the election timetable for
2009, it should be noted that special voting in voting districts
takes place on two days
only, 20 and 21 April 2009.
66
See regulation 14 of the Elections Regulations.
67
Prinsloo v Van der Linde and Another
[1997] ZACC 5
;
1997 (3)
SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 25.
68
See [46] above where the prayers in the notice of motion are set
out.
69
The Minister also sought leave to appeal against
the order of the High Court made in terms of paragraph 6 of the
applicant’s
notice of motion. That paragraph sought to have the
parts of the Election Regulations relevant to
section 33(1)(e)
of
the
Electoral Act invalidated
. The order of the High Court in this
regard has been upheld (see [97]-[98] above).
70
At [95]-[98].