AParty and Another v The Minister for Home Affairs and Others, Moloko and Others v The Minister for Home Affairs and Another (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA 649 (CC) ; 2009 (6) BCLR 611 (CC) (12 March 2009)

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[2009] ZACC 4
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AParty and Another v The Minister for Home Affairs and Others, Moloko and Others v The Minister for Home Affairs and Another (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA 649 (CC) ; 2009 (6) BCLR 611 (CC) (12 March 2009)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
06/09
[2009] ZACC 4
THE
APARTY First Applicant
ANDREW
PEPPERELL Second Applicant
versus
MINISTER
FOR HOME AFFAIRS First Respondent
ELECTORAL
COMMISSION Second Respondent
DIRECTOR
GENERAL,
DEPARTMENT
OF HOME AFFAIRS Third Respondent
and
Case CCT
10/09
KWAME
ONKGOPOTSE MOLOKO First Applicant
LEBOHANG
DUDUZILE MOLOKO Second Applicant
ADRI
RALL Third Applicant
XOLANI
BENSON XALA Fourth Applicant
RESHMA
INDERJEETH Fifth Applicant
DALE MARC
LUBBE Sixth Applicant
KALIM
MUHAMMAD RAJAB Seventh Applicant
JACOBUS
CILLIERS KRITZINGER Eighth Applicant
HELENA
ODENDAAL Ninth Applicant
RUDI
BASIL TALMAKKIES Tenth Applicant
JOHANNA
JACOBA MARAIS Eleventh Applicant
ALEXANDER
ECKHARDT PAUW Twelfth Applicant
versus
MINISTER
FOR HOME AFFAIRS First Respondent
ELECTORAL
COMMISSION Second Respondent
Heard
on : 4 March 2009
Decided
on : 12 March 2009
JUDGMENT
NGCOBO J:
Introduction
These
two applications for direct access involve fundamental questions
concerning the right of every citizen to vote in an election.
At
issue are matters of considerable importance concerning the right
of those South African citizens who are abroad to register
and vote
in the upcoming fourth democratic elections. The elections are
just over a month away. Ordinarily we would have
preferred more
time to consider these questions and formulate our views. Time is
against us. Because of the urgency of the
matter and its possible
impact on the upcoming elections, there is a pressing need to
announce our conclusions and basic reasoning
within the shortest
possible time
There are two applications for direct access before us which were
brought as a matter of urgency. They both concern the exclusion
of
certain categories of South African citizens who are living abroad,
from voting. These applications for direct access are
part of a
flurry of applications that were brought in the various High Courts
and in this Court as a matter of urgency. One
came by way of an
application for confirmation of an order of invalidity.
1
The others came by way of applications for intervention
2
and admissions as amici
3
in those confirmatory proceedings. The procedural history of these
cases is set out in the judgment in
Richter v Minister for Home
Affairs and Others
which is delivered contemporaneously with
this judgment.
4
As these cases are concerned with the exclusion of South Africans
who are abroad from voting, they were set down for hearing
on 4
March 2009 and heard together. This judgment is concerned only
with two of the applications for direct access. A separate

judgment deals with the other cases.
5
These
applications concern the exclusion of adult South African citizens
who are abroad from voting. They concern both those
South African
citizens who are registered as voters and those who are not. Both
cases involve challenges to sections 7, 8,
9, 60 and 33(1)(e) of
the Electoral Act
6
as well as the regulations giving effect to them. The applicants
are seeking orders declaring these sections invalid so as
to pave
the way for them, and those who are in the same position, to cast
their votes abroad in the 2009 election. But the
hurdle they must
surmount first is to make out a case for direct access to this
Court.
Before
setting out the facts, it will be convenient to describe the
constitutional and statutory context in which these applications

for direct access are brought.
The
constitutional context
The
foundational values of our constitutional democracy include
“[u]niversal adult suffrage, a national common voters roll,

regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and
openness.”
7
These values are given effect in section 19, which provides:
“
(1) Every citizen is free
to make political choices, which includes the right—
(a) to form a political party;
(b) to participate in the
activities of, or recruit members for, a political party; and
(c) to campaign for a political
party or cause.
(2) Every citizen has the right
to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3) Every adult citizen has the
right—
(a) to vote in elections for
any legislative body established in terms of the Constitution, and
to do so in secret; and
(b) to stand for public office
and, if elected, to hold office.”
Parliament has the constitutional authority and duty to design an
electoral scheme to regulate the exercise of the right to
vote.
This is apparent from sections 46(1),
8
105(1)
9
and 157(5)
10
of the Constitution. In
New National Party
11
this Court held:
“
The right to vote
contemplated by section 19(3) is therefore a right to vote in free
and fair elections in terms of an electoral
system prescribed by
national legislation which complies with the aforementioned
requirements laid down by the Constitution.
The details of the
system are left to Parliament. The national legislation which
prescribes the electoral system is the Electoral
Act. It repeats
the requirements for voting as being South African citizenship, a
minimum age of 18 years and enrolment on the
national common voters
roll. These are requirements set by the Constitution for the
exercise of the franchise.”
12
(Footnote omitted.)
The
Electoral Act was enacted to give effect to the right to vote. It
puts in place a scheme for the exercise of the right
to vote. This
electoral scheme involves compilation and maintenance of a common
voters’ roll;
13
registration of voters;
14
establishment of voting districts and voting stations
15
and management of elections.
16
A person must be registered as a voter in a voting district. A
person who is not registered as a voter may not vote. Sections
5,
6, 7, 8, 9, 11 and 60 are intrinsic to this scheme because their
combined effect is to restrict the registration as a voter
to those
South African citizens who are ordinarily resident in South Africa.
Broadly speaking, the scheme designed by Parliament amounts to
this: if you are a citizen who is in possession of a bar-coded

identity document you may apply to be registered as a voter on the
national voters’ roll. Applications for registering as
a voter
are regulated by the Voter Registration Regulations, 1998 (the
Voter Registration Regulations.)
17
You may do this at any of the 302 offices of the Electoral
Commission (the Commission) which are located throughout the

country. These offices are open throughout the year: the
Commission tells us they have existed since 1998. Once you are

registered, your name is entered in the voters’ roll for the
district in which you are ordinarily resident. If you should wish

to change your place of ordinary residence, you may apply to do so
and have the change recorded in the voters’ roll. For
the 2009
elections we are told that there are 23 112 936 voters who are
registered.
Once
you are so registered, you may vote only at the voting station in
the voting district for which you are registered.
18
However, if you cannot vote in the voting district for which you
are registered on the date of the election, you may apply
to the
presiding officer of the voting station in another district to vote
in that district.
19
If you vote in another district, you may vote only in the national
elections unless the voting district in which you seek
to vote is
in the same province in which you are registered. If you happen to
fall into any of the categories of persons mentioned
in section
33(1) of the Electoral Act, you may apply for a special vote.
These categories include South African citizens who
are outside the
country. But it is restricted to the categories specified in the
section.
What
emerges from the electoral scheme designed by Parliament is this:
the scheme requires a voter to vote in the voting district
for
which he or she is registered.
20
The scheme, however, recognises two exceptions to this
requirement. The first relates to a situation where a voter cannot

vote in his or her voting district on election day. A voter may,
on application to the presiding officer of a voting station
in
another district, be permitted to vote in that voting district. If
this voting district happens to be outside the province
in which
the person is registered, the voter may vote in the national
elections only. Otherwise he or she may vote in both
the national
and provincial elections. Section 24A regulates this procedure.
The
second exception is for a voter who cannot vote at a voting station
in the district in which the person is registered as
a voter (the
special vote exception). This exception is governed by section 33
of the Electoral Act. This section sets out
the categories of
voters who may apply for a special vote under it. These categories
include people who are “physically
infirm, disabled or
pregnant”;
21
those who are absent from the country on government service and
their families;
22
those serving as officers in the elections;
23
those on duty as members of the security services in connection
with the elections;
24
and those who are abroad on holiday, a business trip, attending
tertiary institutions or on educational visits or participating
in
international sports.
25
These cases are concerned with this last category.
Chapter 3 of the Election Regulations, 2004 (the Election
Regulations) governs special votes.
26
The regulations set out the categories of people who may apply for
a special vote and, in regulation 6(e), repeat section
33(1)(e).
Regulations 11, 12 and 13 govern the procedure in applying for and
casting a special vote. They provide the places
where a voter may
vote abroad (at any South African embassy, high commission or
consulate.)
27
A person who has applied for a special vote may cast his or her
vote before proceeding abroad. A voter who casts his or her

special vote before proceeding abroad may vote in both the national
and provincial elections. However, a person who is casting
a
special vote abroad under this provision may vote only in the
national elections.
28
Against
this background I now turn to the facts.
The
AParty and Another v Minister for Home Affairs and Others
CCT
06/09
On
5 February 2009 the AParty and Mr Andrew Pepperell, the first and
the second applicants respectively, launched an urgent
application
for direct access to this Court. The respondents are the Minister
for Home Affairs (the Minister) and the Commission.
The applicants
seek an order declaring sections 7(2), 7(3)(a), 8(3), 9(1) and
60(1) of the Electoral Act unconstitutional
and invalid to the
extent that they preclude South African citizens not ordinarily
resident in South Africa from registering
as voters in terms of the
Electoral Act. They also challenge section 33(1) of the Electoral
Act insofar as it makes no provision
for South African citizens who
are not ordinarily resident in the Republic who wish to apply for a
special vote.
In
the alternative they are seeking an order declaring section
33(1)(e) of the Electoral Act unconstitutional to the extent
that
it infringes the right to vote of South African citizens who are
not present in the Republic of South Africa on polling
day. In
addition to these statutory provisions, they are also challenging
regulations 2 (voter registration) and 11 (registration
in voting
district) of the Voter Registration Regulations
29
and regulations 12 (voting abroad), 13 (casting a special vote
before proceeding abroad) and 17 (voting where a voter is not

registered) of the Election Regulations.
30
They contend that the challenged provisions are inconsistent with
sections 1(d),
31
3(2)(a),
32
9,
33
10
34
and 19(3)(a)
35
of the Constitution. The AParty did not seek urgent relief
requiring the Commission to register voters abroad for the imminent

elections. Although they sought an order of invalidity in relation
to these provisions, they proposed that the order be suspended
to
afford Parliament the opportunity to rectify the matter.
The
AParty is a registered political party which was recently
established to contest the 2009 general elections. Mr Pepperell
is
a South African citizen currently living in Dubai. He has been
living in Dubai since March 2004 and intends returning to
South
Africa in about two years time. He is a registered voter and his
voting district is in Somerset West. He has been a
registered
voter since 1994 and last cast his vote in the 1999 general
elections. He wished to vote in 2004 but could not
do so because,
he claims, there were no facilities in Dubai.
He
desires to vote in the 2009 general elections. He thought that
this would not be possible because he believed that he was
not
registered as a voter. He claims he cannot register while he
remains ordinarily resident in Dubai, and that there are
no
facilities to enable him to cast his vote at the South African
diplomatic mission in the United Arab Emirates. He is mistaken

when he suggests that he is not a registered voter. Once you are
registered as a voter you remain on the voters’ roll until
your
name is removed. He is, therefore, a registered voter. Indeed,
the Commission takes the view that he is a registered
voter.
Moloko
and Others v Minister for Home Affairs and Others CCT 10/09
Twelve
individual applicants who are South African citizens are seeking
direct access to this Court in this case. They have
varying
interests and backgrounds and are employed in a variety of fields,
including economics, law, hospitality, education,
finance,
administration, child welfare and human resources. The common
feature which they share is that they all reside abroad
and will
not be in South Africa on the date of the 2009 general elections
for the National Assembly and the provincial legislatures.
On 5 February 2009 these applicants launched an urgent application
in the High Court in Cape Town where they challenged the

constitutionality of sections 7, 8(3) and 33(1) of the Electoral
Act. In addition, they challenged regulation 12(4) of the
Election
Regulations.
36
They contended that these provisions violate sections 3(2)(a),
9(1), 10 and 19(3)(a) of the Constitution. That application
was
overtaken by events. The High Court in Pretoria handed down
judgment in
Richter v Minister of Home Affairs and Others
37
in which it declared invalid sections 33(1)(b) and 33(1)(e) of
the Electoral Act and certain regulations. In view of the referral

of the order of invalidity in
Richter
to this Court for
confirmation, the applicants launched the present urgent
application for direct access. Their application
in the High Court
has apparently been stayed pending the outcome of the present
application.
All
the applicants except Ms Rall and Mr Xala are registered voters.
Ms Rall has been outside this country for about 28 months
while Mr
Xala has been away for 6 years. Neither has furnished any
explanation for not registering as a voter.
The
attitude of the Minister and the Electoral Commission
The
Minister opposed the granting of direct access, maintaining that,
first, it is not in the interests of justice that a constitutional

attack directed at the electoral system should be brought directly
to this Court in this manner; and, second, the applicants
have not
established any urgency in approaching this Court. On the merits
the Minister contended that sections 7, 8, 9 and
60(1) form part of
the electoral scheme designed by Parliament in order to regulate
the right to vote. This scheme complies
with the requirements
prescribed by the Constitution, the Minister argues.
For
its part, the Commission does not oppose the relief sought by the
applicants save insofar as the relief requires it to register

voters outside the country; extend or shorten the 15-day notice
period during which voters are required to notify the Commission
of
their intention to vote overseas; and facilitate overseas voters in
casting a provincial vote. Its stance on direct access
is that the
applications do not in themselves justify direct access to this
Court. However, it accepts that these matters
are urgent and that
this Court will in any event have to deal with the
constitutionality of section 33(1)(e) in the confirmatory

proceedings. But it points out that urgency in these cases is
self-created and could have been avoided.
In
addition, the Commission expresses concern about the implications
of the relief sought in these cases, focusing as it does
on the
registration of voters abroad. In particular the Commission draws
our attention to the following:
The number of people in respect of whom the relief is sought is
unknown. It is estimated there may be as many as two million
in
over 100 countries.
Neither the Department of Home Affairs nor the South African
Revenue Service keep accurate records of South Africans living

abroad.
It would be “extremely difficult” for it to register South
Africans living abroad on short notice.
The
Commission also draws attention to the difficulties associated with
registering voters abroad, arising from the fact that
the voters
are not physically in South Africa. In relation to voters who are
ordinarily resident in a voting district in South
Africa, each
foreign mission would require a copy of the full voters’ roll.
In addition, when registering a voter abroad
who asserts that he or
she is ordinarily resident in a particular voting district, it will
be difficult for the foreign mission
to ascertain this and this may
threaten the integrity of the voters’ roll. The Commission
expresses the view that “it
is not inconceivable that South
Africans wishing to influence provincial elections could state that
they were ordinarily resident
in a certain province.” Those
citizens who are not ordinarily resident in a voting district in
South Africa fall outside
the scope of the electoral system.
Finally,
the Commission emphasises the fact that its activities have to run
to an “incredibly tight schedule.” It is required
by the
Electoral Act to develop the election timetable once the elections
are proclaimed. It therefore has to ensure that
a myriad of
deadlines and complicated arrangements come together on time and in
the correct sequence so that the elections
are credible. As these
applications have been brought at such a late stage, they could
have negative implications for the
timetable and ultimately for the
elections. And this could endanger the right to vote of an
estimated 23 million South Africans
who wish to vote in the 2009
elections.
The
question which must be determined first in each of these
applications is whether the applicants have made out a case for

approaching this Court directly with their respective
constitutional challenges.
Direct
access
Section
167(6)(a) of the Constitution provides for direct access and says
in pertinent part:
“
National legislation or the
rules of the Constitutional Court must allow a person, when it is in
the interests of justice and
with leave of the Constitutional Court—
(a) to bring a matter directly
to the Constitutional Court”.
Consistently
with this provision, section 16(2) of the Constitutional Court
Complementary Act
38
makes provision for matters to be brought directly to this Court,
in terms similar to section 167(6)(a) of the Constitution.
39
And rule 18 of the rules of this Court sets out the procedure for
bringing matters directly to this Court.
This
Court first considered the provisions of section 167(6) in
Bruce
and Another v Fleecytex Johannesburg CC and Others.
40
On that occasion, this Court considered the factors that are
relevant to applications for direct access to it and said:
“
Whilst
the prospects of success are clearly relevant to applications for
direct access to this Court, there are other considerations
which
are at least of equal importance. This Court is the highest Court
on all constitutional matters. If, as a matter of course,

constitutional matters could be brought directly to it, we could be
called upon to deal with disputed facts on which evidence
might be
necessary, to decide constitutional issues which are not decisive of
the litigation and which might prove to be purely
academic, and to
hear cases without the benefit of the views of other Courts having
constitutional jurisdiction. These factors
have been referred to in
decisions given by this Court on applications for direct access
under the interim Constitution, and
are clearly relevant to the
granting of direct access under the 1996 Constitution.
It is,
moreover, not ordinarily in the interests of justice for a court to
sit as a court of first and last instance, in which
matters are
decided without there being any possibility of appealing against the
decision given.
Experience shows that
decisions are more likely to be correct if more than one court has
been required to consider the issues
raised. In such circumstances
the losing party has an opportunity of challenging the reasoning
on which the first judgment is
based, and of reconsidering and refining arguments previously raised
in the light of such judgment.”
41
(Footnotes omitted.)
There
is no suggestion in these applications that the High Court and the
Supreme Court of Appeal do not have jurisdiction to
entertain the
constitutional challenges in issue in these cases. On the
contrary, as pointed out above, the applicants in
the Moloko matter
first approached the High Court in Cape Town to pursue the relief
they now seek to pursue in their application.
This Court has
emphasised the benefits that may be derived from the judgments of
other courts. These courts should not, therefore,
ordinarily be
bypassed. Consequently “compelling reasons are required to
justify a different procedure and to persuade this
Court that it
should exercise its discretion to grant direct access.”
42
With
these principles in mind, we now turn to consider whether a case
for direct access has been made out in these applications.
As
the background facts show, the applicants in these matters are
challenging the constitutional validity of section 33(1)(e).

However, they also challenge other provisions of the Electoral Act.
In the Moloko matter the applicants are challenging sections
7 and
8(3), while the applicants in the AParty matter are challenging
sections 7(2), 7(3)(a), 8(3), 9(1) and 60(1). For reasons
that
will become apparent later in the judgment, it will be convenient
to consider these challenges under two heads, namely,
The challenge to section 33(1)(e); and
The challenges to sections 7, 8(3), 9(1) and 60(1).
The
challenge to section 33(1)(e)
The
applicants’ challenge to section 33(1)(e) raises the same issues
that were considered by the High Court in
Richter
.
43
And thus it raises the same issues as those that are before this
Court in the confirmatory proceedings in the Richter matter.
In
considering the applicants’ challenge to section 33(1)(e) this
Court is therefore not sitting as the court of first and
final
instance. We have the benefit of the judgment of the High Court
which traversed the issue of the constitutionality of
section
33(1)(e). The similarities between the issues raised in relation
to section 33(1)(e) require them to be dealt with
together. In
these exceptional circumstances we consider it appropriate to grant
direct access to the applicants in both cases.
Constitutionality
of section 33(1)
Having
granted direct access in relation to the question of the
constitutionality of section 33(1)(e) of the Electoral Act,
we
should note that the submissions advanced on behalf of the
applicants in the AParty and Moloko matters mirror the arguments

made by the applicant, intervening parties and amici in the Richter
matter
in which the judgment is handed down at the same
time as this judgment. The
Richter
judgment considers all
the arguments made in relation to the constitutionality of section
33(1)(e). It is not necessary to
repeat what is said there.
Furthermore, the Court there declares certain portions of section
33(1)(e) and regulations 6(e),
11, 12 and 13 of the Election
Regulations to be unconstitutional, and makes an order for further
just and equitable relief.
For the reasons given in the Richter
matter, that is the relief to be afforded to the applicants in
these cases. Accordingly
an order to that effect will be given in
each of these cases.
The
applicants have also challenged regulation 17 of the Election
Regulations. This regulation provides for the form which
a sworn
statement referred to in section 24A(1)(b) of the Electoral Act
must take. Section 24A in turn deals with a voter
who casts his or
her vote in a voting district where the voter is not registered.
This provision applies to a vote cast within
the Republic of South
Africa. It is not clear why this regulation is said to be
inconsistent with the Constitution. Neither
the founding affidavit
nor the written argument provides any substantiation. I can find
no basis for the constitutional attack
on this regulation. None
was suggested. It follows that the constitutional attack on
regulation 17 must be dismissed.
To
the extent, therefore, that the applicants’ challenges relating
to section 33(1)(e) and regulations 12 and 13 of the Election

Regulations have been successful, they are entitled to an
appropriate costs order. This is a matter to which we return

later.
The
remaining issue in these cases is whether the applicants are
entitled to come directly to this Court in relation to the

constitutional challenges to sections 7, 8(3), 9(1) and 60(1).
The
challenges to sections 7 and 8(3)
Sections
7 and 8 of the Electoral Act provide:
“
7
(
1) A person
applying for registration as a voter must do so in the prescribed
manner.
(2) The head office in the
Republic of a person referred to in section 33(1)
(b)
is
regarded as the ordinary place of residence of that person or a
member of that person’s household.
(3)
(a)
A person is
regarded to be ordinarily resident at the home or place
where that person normally
lives and to which that person regularly returns after any period of
temporary absence.
(b)
For the purpose of
registration on the voters’ roll a person is not regarded to be
ordinarily resident at a place where that
person is lawfully
imprisoned or detained, but at the last home or place where that
person normally lived when not imprisoned
or detained.
8(1) If satisfied that a
person’s application for registration complies with this Act, and
that person is a South African citizen
and is at least 18 years of
age, the chief electoral officer must register that person as a
voter by making the requisite entries
in the voters’ roll.
(2) The chief electoral
officer may not register a person as a voter if that person—
(a)
has applied for
registration fraudulently or otherwise than in the prescribed
manner;
(b)
…
(c)
has been declared
by the High Court to be of unsound mind or
mentally disordered;
(d)
is detained under
the Mental Health Act, 1973 (Act 18 of 1973); or
(e)
…
(3) A person’s name must be
entered in the voters’ roll only for the voting district in which
that person is ordinarily resident
and for no other voting
district.”
The
applicants in both these cases challenge the provisions of sections
7 and 8(3). While the arguments they advanced overlapped
to a
certain extent, they took different positions, in particular, on
the relief they sought. For this reason, it would be
convenient to
deal with each application separately.
The
Moloko Application
The
applicants sought to justify their application for direct access on
the following grounds:
after they had launched their application in the High Court in
Cape Town,
Richter
was decided by the High Court in
Pretoria and the order of that court is before this Court for
confirmation. They submitted
that their situation is not
dissimilar to that which arose in
Fourie
44
and
Bhe.
45
There are exceptional circumstances which militate in favour of
direct access being granted. These circumstances were
said to be
the fact that the High Court in
Richter
has already
traversed the relevant issues; that in view of the pending
election, it will be impossible for them to obtain
relief before
the High Court if direct access were to be refused; that the
issues raised are of considerable public importance;
and there
are no disputes of fact.
Reduced
to their essence, the applicants rely upon four grounds: First, the
issues raised in their application are similar to
those raised in
the Richter matter which is before this Court for confirmation;
second, the matter is one of extreme urgency;
third, the issues
raised are of considerable public importance; and fourth, there are
no disputes of fact. To this must be
added the suggestion that the
Commission has consented to direct access being granted.
We
did not understand the Minister and the Commission to dispute that
a matter that involves the right of a citizen to vote
is of
considerable importance. Nor can there be any question that the
application involves fundamental questions of constitutional
law.
This is even more so in a case where we are told that this may
affect as many as two million people. But these are not
the only
considerations in determining whether direct access should be
granted.
Reliance
on Bhe and Fourie
Counsel
set much store by the decisions of this Court in
Fourie
and
Bhe
. In relation to
Fourie
, our attention was drawn
to the passage in which it was said:
“
In the present matter, the
appeal from the SCA decision in the
Fourie
matter is already
before us. The direct access application fills a gap in the
Fourie
case referred to by the High Court, this Court and the SCA. The
common law in relation to marriage has been overtaken by statute
in
a great number of respects. To deal with it as if the Marriage Act
did not exist would be highly artificial and abstract.
The overlap
between the issues raised and their strong interconnectedness
requires them to be dealt with in an integrated and
comprehensive
fashion. There would be grave disadvantages to all concerned if the
issues raised were to be decided in a piecemeal
way.”
46
And
in relation to
Bhe
, our attention was drawn to a statement
to the effect that: “The application further adds fresh insights
on difficult issues”.
47
In line with these statements the applicants submitted that their
application “proffer[s] fresh insights into issues that
are
already before this Court”, and that it “fill[s] a gap” in
relation to registration and provincial votes as well
as the relief
sought.
The
applicants’ reliance on
Fourie
and
Bhe
is
misplaced. The passages relied upon by the applicants must be
understood in the context of the issues that this Court had
to
decide in those cases. In
Fourie
, the broad question
presented was the right of same-sex couples to marry. In the High
Court and the Supreme Court of Appeal,
the couple sought an order
developing the common law so as to recognise marriages of same-sex
couples as valid in terms of
the Marriage Act.
48
When the matter came to this Court on further appeal, the Lesbian
and Gay Equality Project applied for direct access in order
to
challenge the constitutionality of section 30(1) of the Marriage
Act. Its challenge was, at the time, pending in the High
Court.
There
are three crucial factors which immediately distinguish
Fourie
from the present cases. First, we held that the common law as it
relates to marriage had been “overtaken by statute in a
great
number of respects.”
49
Second, we held that the enquiry into the common law definition of
marriage and the constitutionality of section 30(1) was
the same.
50
Third, although the challenge to section 30(1) was not before it,
the Supreme Court of Appeal had “devoted considerable
attention
to interpreting its terms and evaluating its significance in
relation to the common law.”
51
None
of these factors is present in this case. In particular, the High
Court did not consider sections 7 and 8 of the Electoral
Act at
all.
It
was against this background that this Court in
Fourie
held
that “[t]o deal with [the common law] as if the Marriage Act did
not exist would be highly artificial and abstract.”
52
Similarly, our finding that there was an overlap between the
issues raised in relation to the common law and section 30(1)
of
the Marriage Act, and that this required them to be dealt with
together, must also be understood in that context. So too
the
statement that the application for direct access “fills a gap”
must also be understood in this context.
Fourie
does not, therefore, assist the applicants.
Nor
does this Court’s decision in
Bhe
assist the applicants.
One of the main issues in that case concerned the constitutionality
of section 23 of the Black Administration
Act.
53
This section dealt with intestate succession in relation to the
estates of deceased “black” people. The High Court had

declared parts of section 23(10) which gave the President the power
to make regulations governing the administration and distribution

of estates of deceased “black” people, unconstitutional. When
the matter came to this Court for confirmation, the South
African
Human Rights Commission and the Women’s Legal Centre sought
direct access to challenge the whole of section 23, alternatively

subsections (1), (2) and (6) of section 23.
The
subsections of section 23, together with the regulations,
constituted a scheme of intestate succession for “blacks”.
The
applications for direct access therefore related to substantive
issues that were already before the Court. It was in
this context
that the Court held that the application for direct access
“helpfully broadens the scope of the constitutional

investigation”
54
and “further adds fresh insights on difficult issues”.
55
By
contrast, the scope of the constitutional challenge in the Richter
matter is limited. The question presented is whether
a registered
voter who is abroad should be permitted to vote. Section 33(1)(e),
which makes provision for certain categories
of registered voters
who are abroad to vote on election day, would not permit Mr Richter
to vote. Hence Mr Richter limited
his challenge to section
33(1)(e). He did not seek to register abroad as a voter. Thus the
question of the constitutionality
of sections 7 and 8(3) did not
enter the equation.
The
scope of the challenge in the direct access application
The
challenge to sections 7 and 8(3) is fundamentally different to that
based on section 33(1)(e). These provisions deal with
the
registration of voters. As the President has proclaimed the date
for elections, the voters’ roll is closed. The present
challenge
threatens the election timetable.
56
In
answer to the constitutional challenge, the Minister contends that
the Constitution entrusts to Parliament the task of designing
an
electoral scheme which complies with certain requirements of the
Constitution. It includes an electoral system that is based
on the
national common voters’ roll, provides a minimum voting age of 18
years and, results, in general, in proportional
representation.
The electoral scheme that has been designed provides for a
district-based voters’ roll which requires a
voter to vote in a
district where he or she is registered to vote. One of the
requirements of registration is that a person
be ordinarily
resident where he or she intends to vote. The Minister contends
that the legislative provisions that are challenged
in these
applications for direct access form part of the fundamental pillars
of the district-based voters’ roll envisaged
by the electoral
system.
The
challenges to sections 7, 8, 9 and 60 therefore go to the very
heart of the electoral scheme chosen by Parliament. It raises

complex and difficult questions concerning the constitutional
validity of this electoral scheme and the legislative choice
made
by Parliament, whose duty it is to design an electoral scheme. No
party disputed that Parliament had a range of choices
open to it in
designing that scheme and that it was not for the courts to
prescribe to Parliament which scheme should be chosen.
The courts’
function is to determine whether the scheme chosen complies with
the Constitution. And, if the scheme is found
to be
unconstitutional, what electoral scheme should be put in place in
the interim until Parliament prescribes another electoral
scheme
which will conform to the constitutional requirements. In
particular, as the applicants point out in their founding
affidavit
when explaining the limited scope of the constitutional challenge
in the Richter matter, the present challenge requires
full
consideration of the nature and effect of sections 7, 8, 9 and 60
of the Electoral Act. And a ruling on the constitutionality
of
these provisions may well be essential to the determination of
issues raised by the applicants.
These
issues were neither raised nor traversed in the High Court in
Richter
. In determining these cases, this Court would
therefore be sitting both as a court of first and last instance.
In the past
we have held that the importance and complexities of
the issues raised in an application for direct access would weigh
heavily
against this Court being a court of first and last
instance, from which no appeal will lie.
57
As we have explained, the jurisprudence of this Court is greatly
enriched by being able to draw on the considered opinion
of other
courts. Issues that relate to substantive law and the appropriate
relief are “crystallised out for focused research
and
attention.”
58
Urgency
We
cannot lose sight of the fact that this matter has been brought as
a matter of extreme urgency. The respondents have had
to work
under pressure to gather and put together information on which they
could lay their hands and thereafter prepare affidavits.
Apart
from this, the Commission has alluded to practical and logistical
difficulties that may arise in effecting any change
to the system
including the extent to which this may undermine the conduct of the
elections. It is not desirable that issues
of such considerable
importance and complexity be determined in haste. The parties, in
particular the Minister and the Commission,
must have a fair
opportunity to collect and present evidence to support and defend
the electoral scheme that is presently under
challenge.
The
Moloko applicants have made much of the urgency of the matter.
They submitted that if direct access were to be refused
it would be
impossible for them to obtain any relief before the elections.
There are two answers to this submission. The
first is that if
they had gone to the High Court, and been successful, that court
would have declared the provisions unconstitutional.
Although that
order would have been subject to confirmation by this Court, the
High Court may, in addition to making an order
of invalidity, have
granted temporary relief under its just and equitable jurisdiction
pending the decision of this Court.
59
The
second answer is that the applicants are the authors of their own
misfortune; they created the urgency. The registration
provisions
of the Electoral Act have been in place since 2003.
60
Voting by South African voters abroad in the 2004 elections was
regulated by the amendment which was introduced in 2003.
The
applicants have known since then that they cannot vote. Their
explanation for not approaching a court much earlier is
utterly
unsatisfactory.
The
Cape application was lodged on 5 February 2009. On their own
version, the issue of the rights of litigants living abroad
to
register and to vote has been dragging on for approximately 11
years. Two general elections have taken place and they have
not
challenged the Electoral Act. They advance as a reason for this
inordinate delay their faith in a political solution.
All along
they had hoped that their plight would be alleviated politically.
This faith in the political process has cost
them, or some of them,
the right to vote. In a somewhat faint tone they plead lack of
funds, lack of organisation and lack
of access to South African
lawyers until they were offered pro bono assistance.
All
the applicants do is to point out to what they describe as “many
political and popular initiatives attempting to convince
Parliament
and the [Commission] to extend the franchise to all categories of
South Africans abroad.”
These
initiatives, we are told, included demonstrations at South African
missions
abroad, the formation of various
non-governmental organisations, electronic petitions, organisation
on social networking sites,
lobbying by and of politicians and
discussions with the Commission. We are told that these
initiatives were partially successful
in 2003 when Parliament
extended the franchise to certain South African citizens abroad but
excluded those who fell within
the applicants’ category. Despite
this, they still did not take any steps to vindicate their rights
in any court of law.
And apparently nothing happened after 2003
until, the applicants say, “political and popular attention
returned to matters
electoral towards the end of 2008” and “such
initiatives were reinvigorated.”
There
is no explanation why these initiatives were only “reinvigorated”
towards the end of 2008. They would have us believe
that they
learned of their exclusion “at various times in the months before
the filing of the application.” What they
thought was happening
in the interim is not explained. Despite the lateness of the hour
they “continued to pin their hopes
on the political processes
under way.” They then point to a media statement issued by the
Commission referring to a meeting
between it and the Democratic
Alliance. They rely in particular on the paragraph in which it is
stated:
“
The Chairperson of the
commission indicated to the leader of the DA that the commission
will consider the proposals presented
by the DA, taking into account
the practicalities and legal implications pertaining to this matter.
The meeting further noted
that the Electoral Commission is always
open to suggestions that give opportunities to as many South
Africans as possible to
register and to vote.”
No
attempt was made to put the Commission on terms given the fact that
the elections were not very far away.
Nor
do the applicants set out the precise steps that they themselves
took to assert their right to register and to vote. They
tell us
that “even though some of the Applicants became aware of the
exclusions some time in advance of the filing of this
application,
[
they] felt
powerless to challenge the exclusions.” This is so because they
claim, by its very nature, “the community of South Africans

abroad is a diffuse group which is politically relatively
powerless, without ready access to legal and other resources in
South Africa to pursue their rights.” They claim that—
“
[I]t was only when [they]
were brought together and were offered legal representation on a
pro
bono
basis by [their] legal representatives that a challenge
such as the present became viable.”
We
should not be understood as suggesting that the applicants should
not have sought a political solution. This is a desirable
course
to follow where possible. However, these initiatives should be
pursued up to a certain point. They should not be pursued
on the
eve of the election leaving litigants with little or no time to
approach a court for relief. Approaching courts at
the eleventh
hour puts extreme pressure on all involved including respondents
and the courts, as these cases amply demonstrate.
It results in
courts having to deal with difficult issues of considerable
importance under compressed time limits. The result
is that courts
which have jurisdiction to hear these matters are bypassed in order
to obtain a final ruling on these issues
from this Court. This is
undesirable. As this Court pointed out in
Dormehl
:
“
It is not ordinarily in the
interests of justice for a Court to sit as a Court of first and last
instance, without there being
any possibility of an appeal against
its decisions. Nor is it in the interests of justice for 11 Judges
of the highest Court
in constitutional matters to hear matters at
first instance which can conveniently be dealt with by a single
Judge of a High
Court.”
61
Matters
concerning elections should ordinarily be brought at the earliest
available opportunity because of their potential impact
on the
elections. If they are brought too close to the elections, this
might result in the postponement of the elections.
This is not
desirable in a democratic society. There may well be circumstances
where bringing a challenge earlier is not
possible having regard to
the nature of the dispute. These circumstances would be very rare.
Where the challenge could and
should have been brought earlier, a
litigant must put out facts, covering the entire period of delay,
explaining why the challenge
could not have been brought earlier.
Failure to do so may well result in the refusal of the relief.
There
is a further consideration which militates against direct access.
Two of the applicants are not registered. These applicants
have
not provided any explanation for why they have not registered as
voters. The Commission has 302 permanent offices throughout
the
Republic and these offices are open all year. Persons wishing to
register as voters can do so at any time of the year
during the
Commission’s office hours. Had Ms Rall and Mr Xala wished to
register as voters, they could have done so.
As
is plain from section 3 of the Constitution, while “all citizens
are equally entitled to the rights, privileges and benefits
of
citizenship”,
62
they are “equally subject to the duties and responsibilities of
citizenship.”
63
Equally true, therefore, is that while all adult citizens are
entitled to vote in elections,
64
this right carries with it the responsibility to register as a
voter. Ms Rall and Mr Xala have this responsibility too. They

could have applied for registration as voters before they left the
country or at any time during their visit to this country
as the
other 10 of their co-applicants apparently did. We are not told
why this could not be done. It would therefore take
more than just
the fact that they are not registered as voters, for this Court to
come to their assistance and hear their case
at this late stage.
In
these circumstances, the applicants have not established any
urgency that does not arise from their own failure to act.
As
we have pointed out above, the challenge in these applications goes
to the heart of the electoral scheme. As the Commission
pointed
out, the relief sought could have a negative impact on the election
timetable and, ultimately on the elections themselves.
On the
facts and circumstances of this case, it cannot be in the interests
of justice to come to the assistance of the two
individual
applicants at the expense of jeopardising the elections. Indeed,
it is doubtful whether, even if the applicants
were to be
successful, they would have been entitled to any relief given the
logistical and practical difficulties described
by the Commission.
It was in the light of these difficulties that the AParty sought
declaratory relief only.
The
attitude of the Commission
Finally,
the applicants sought to rely on the fact that the Commission
suggested that they should approach this Court directly.
First, an
agreement between the parties to bring a matter directly to this
Court is not decisive of whether direct access
should be granted.
The application must comply with the requirements for direct
access. It must be established that there
are exceptional
circumstances justifying this Court in granting direct access.
Second, the Commission takes the view that
the application in
itself does not justify direct access to this Court. It was the
urgency of the application and the fact
that section 33(1)(e) was
already before this Court for confirmation that led the Commission
to express the view that it is
appropriate for this Court to grant
direct access. The Commission is correct in relation to section
33(1)(e). However, urgency
is not the only consideration in an
application for direct access.
For
all these reasons, the applicants in the Moloko
matter have
not established any exceptional circumstances justifying the grant
of direct access in relation to their challenges
to sections 7 and
8(3) of the Electoral Act. In the event, direct access must be
refused in relation to the constitutional
challenges to sections 7
and 8(3) of the Electoral Act.
The AParty and Mr Pepperell
Like
the applicants in the Moloko matter, the applicants’ challenge
goes beyond section 33(1)(e). They also challenge the

constitutionality of sections 7(2), 7(3)(a), 8(3), 9(1)
65
and 60(1).
66
The considerations that militate against direct access being
granted in the Moloko matter apply equally to this application.
The
applicants sought to motivate their application for direct access
on the following grounds: the importance of the issues
raised; that
the matter is urgent; and that the relief sought is substantially
similar to, or has, a direct impact on the relief
sought by parties
already before this Court.
It
is true the constitutional questions raised by the applicants are,
as they put it, “of the highest importance.” It is
also true
that urgency may afford grounds for engaging this Court directly.
67
These are not the only considerations in an application for direct
access. The urgency relied upon must be such that securing
a
ruling of this Court would be in the interests of justice. And an
applicant who contends that the requisite urgency exists
has “an
obligation of establishing such averment to the satisfaction of the
Court.”
68
In
support of their argument on urgency, the applicants remind us that
the AParty, the first applicant, was only registered
as a party on
3 February 2009. It was contended that it would have lacked the
capacity to sue had it not been registered.
It was also contended
that as a political party it would have a special interest in the
relief sought and also that registration
as a party would enable it
to raise money to litigate. This may well be so, but there is an
incontrovertible constitutional
answer to these submissions.
Section 38 of the Constitution affords a broad range of persons
standing to protect the rights
in the Bill of Rights.
69
The broad standing is there precisely to deal with the
difficulties faced by the AParty in this matter. The range of
persons
that are afforded standing includes persons who are acting
in their own interest, persons acting in the interest of a group or

class of persons, and anyone acting in the public interest. Thus,
Mr Penderis, the chairperson of the AParty, could have brought
the
application earlier under the provisions of section 38. So could
Mr Pepperell.
The
applicants also submitted that the relief they seek is
substantially similar to the relief sought in the Richter matter.

For the reasons that we have given in rejecting a similar argument
by the applicants in the Moloko
application, this argument
must be rejected.
The
relief that the AParty applicants seek is an order of
constitutional invalidity coupled with a suspension order to give

Parliament an opportunity to make provision for voters to register
abroad. This is not the relief sought in the Richter matter
.
Although the relief, therefore, would not have the potential to
disrupt the forthcoming elections, it nonetheless requires this

Court to determine difficult issues relating to the electoral
scheme in great haste and as a court of first and final instance.

This is not desirable.
Ordinarily
urgency arises because immediate relief is required. It is not in
the interests of justice to deal with constitutional
challenges
that involve the fundamental nature of the electoral system
provided for in the Electoral Act on an urgent basis,
particularly
where no immediate relief is sought. The applicants have not shown
exceptional circumstances justifying this
Court in exercising its
discretion to grant direct access. It follows therefore that
direct access must be refused in relation
to the challenges to
sections 7(2), 7(3)(a), 8(3), 9(1) and 60(1). The constitutional
attack to regulations 2 and 11 of the
Voter Registration
Regulations must suffer the same fate.
In
relation to both applications, the key issue is the question of the
constitutional validity of the electoral system – a
matter that
lies peculiarly with Parliament’s constitutional remit. The
fundamental basis for our refusal to grant direct
access lies in
this Court’s reluctance to deal in undue haste with a matter of
this sort as a court of first and last instance.
For this reason,
nothing in this decision should be read as prejudging the
constitutionality of the challenged registration
provisions,
including those which may prevent South African citizens from
registering while abroad.
It
now remains to consider the question of costs in these two
applications, which is dealt with below.
Costs
The
Moloko and AParty applicants have been successful in relation to
the challenge to section 33(1)(e) but not successful in
relation to
the challenges to sections 7, 8(3), 9(1) and 60(1). They should
ordinarily be entitled to their costs in relation
to the challenge
to section 33(1)(e). They were, however, very late in bringing
this challenge; they waited until the eleventh
hour. Counsel for
the AParty sought to attribute the delay to the fact that the
AParty was registered as a party only last
month. As pointed out
above, this did not, however, prevent Mr Penderis who is the
chairperson of the AParty from bringing
the challenge earlier. Nor
did this prevent Mr Pepperell from doing so. We know that he
intended to vote in the 2004 elections
but could not do so because
he was in Dubai. He has had ample time since 2004 to bring the
challenge.
But
we cannot ignore the stance taken by the Minister in opposing this
relief. The Minister persisted in her opposition until
well into
the hearing. Section 33(1)(e) constitutes an unjustifiable
limitation of the right to vote, as we find in the Richter
matter
.
The government proffered no justification for the limitation.
Government opposition to constitutional challenges must be

consistent with its obligations under the Constitution. The
opposition to the relief sought was without merit. In the

circumstances, the Moloko and the AParty applicants are entitled to
recover their costs insofar as they have been successful against

the state in seeking to vindicate their constitutional rights.
This, however, is not the end of the matter.
Another
important consideration is that the applicants collectively sought
direct access to challenge sections 7, 8(3), 9(1)
and 60(1) of the
Electoral Act. On this, the applicants have failed. It is
necessary therefore to determine a basis upon
which to apportion
costs. The applicants succeeded in relation to section 33(1)(e),
the merits of which the government conceded
well into the hearing
and after considerable costs had been incurred throughout
proceedings. On the other hand, they have
failed on their
constitutional attack relating to registration. Finally, we bear
in mind that direct access was sought given
the Commission’s
desire that all the matters be heard on an expedited basis in this
Court.
In the circumstances it is fair to award the Moloko and AParty
applicants half of the costs incurred in the proceedings in
this
Court, such costs to include the costs of two counsel. It appears
from the founding affidavit in the Moloko matter, that
their
attorneys represent the applicants on a pro bono basis.
Accordingly, during argument, counsel for the Moloko applicants

asked that costs be limited to disbursements only including the
fees for counsel. It will be so ordered.
Order
In
the event, the following orders are made:
(a)
The application for direct access in
The AParty and
Another v Minister for Home Affairs and Others CCT 06/09
in
relation to the constitutional challenge to
section 33(1)(e)
of
the
Electoral Act 73 of 1998
is granted.
(b) The application for direct access in
Moloko and Others v
Minister for Home Affairs and Another CCT 10/09
in
relation
to the constitutional challenge to
section 33(1)(e)
of the
Electoral Act 73 of 1998
is granted.
(c) 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.
(d) 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 in GG 25894 of 7 January 2004,
as amended)
are declared to be inconsistent with the Constitution and invalid.
(e) The word “temporary” in the subtitle to regulation 11 of
the Election Regulations, 2004 is declared to be inconsistent
with
the Constitution and invalid.
(f) 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.
(g) 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.
(h) 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.
(i) It is declared that any registered voter who, in terms of
paragraphs (c)-(h) 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 order 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 Election Regulations, 2004.
(j) The application for direct access in
The AParty and Another
v Minister for Home Affairs and Others CCT 06/09
insofar as it
relates to the challenges to
sections 7(2)
,
7
(3)(a),
8
(3),
9
(1) and
60
(1) of the
Electoral Act 73 of 1998
is dismissed.
(k) The application for direct access in
The AParty and Another
v Minister for Home Affairs and Others CCT 06/09
insofar as it
relates to the challenges to regulations 2 and 11 of the Voter
Registration Regulations, 1998 promulgated in terms
of section 100
of the Electoral Act 73 of 1998 (published under GN R1340 in GG
19388 of 16 October 1998, as amended) is dismissed.
(l) The application for direct access in
The AParty and Another
v Minister for Home Affairs and Others CCT 06/09
insofar as it
relates to the challenge to regulation 17 of the Election
Regulations, 2004 is dismissed.
(m) The application for direct access in
Moloko and Others v
Minister for Home Affairs and Another CCT 10/09
insofar as it
relates to the challenge to
sections 7
and
8
(3) of the
Electoral
Act 73 of 1998
is dismissed.
(n) The Minister for Home Affairs is directed to pay one half of
the applicants’ costs in
The AParty and Another v Minister for
Home Affairs and Others CCT 06/09
including the costs of two
counsel.
(o) The Minister for Home Affairs is directed to pay one half of
the applicants’ costs in
Moloko and Others v Minister for Home
Affairs and Another CCT 10/09
in this Court including the costs
of two counsel. These costs shall be limited to the disbursements,
which shall include fees
for counsel.
Langa
CJ, Moseneke DCJ, Cameron J, Mokgoro J, Nkabinde J, O’Regan J,
Sachs J, Skweyiya J and Yacoob J concur in the judgment
of Ngcobo
J.
Counsel for the Applicants in Advocate JC Heunis SC and
CCT 06/09: Advocate MF Osborne and Advocate L Ferreira instructed
by Frost Attorneys.
Counsel for the Applicants in Advocate JJ Gauntlett SC and
CCT 10/09: Advocate BL Makola instructed by Webber Wentzel Inc.
Counsel for the First Respondent Advocate PM Mtshaulana SC and
in CCT 06/09 and 10/09: Advocate H Maenetje and Advocate K Pillay
instructed by the State Attorney, Pretoria.
Counsel for the Second Respondent Advocate IAM Semenya SC and
in CCT 06/09 and 10/09: Advocate N Fourie and Advocate N
Rajab-Budlender instructed by Bowman Gilfillan Inc.
1
Richter v Minister for Home Affairs and Others
[2009] ZACC 3.
2
The Democratic Alliance with Mr Tipper; and the Inkatha Freedom
Party.
3
Afriforum and the Freedom Front Plus.
4
Richter
a
bove n 1.
5
Id.
6
Act 73 of 1998.
7
Section 1(d) of the
Constitution.
8
Section 46(1) provides:
“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—
is prescribed by national legislation;
is based on the national common voters roll;
provides for a minimum voting age of 18 years; and
results, in general, in proportional representation.”
9
Section 105(1) provides:
“Subject to
Schedule 6A, a provincial legislature consists of women and men
elected as members in terms of an electoral system
that—
is prescribed by national legislation;
is based on that province’s segment of the national common voters
roll;
provides for a minimum voting age of 18 years; and
results, in general, in proportional representation.”
10
Section 157(5) provides:
“A person
may vote in a municipality only if that person is registered on that
municipality’s segment of the national common
voters roll.”
11
New
National Party of South Africa v
Government of the Republic of South Africa and Others
[1999] ZACC 5
;
1999 (5) BCLR 489
(CC);
1999 (3) SA 191
(CC).
12
Id at p
ara 14.
13
Section 5
of the
Electoral Act provides
:
“The chief electoral officer must
compile and maintain a national common voters’ roll.”
14
Id at
sections 6
-
8
.
15
">
15
Id at sections
60
-
7
.
16
">
16
Id at c
hapter 4.
17
Promulgated under
section 100
of the
Electoral
Act and
published in GN R1340 GG 19388 of 16 October, 1998 as
amended.
18
Electoral Act, s
ection 33(1).
19
Id at s
ection 24A.
20
Id at
section 38.
21
">
21
Id at s
ection 33(1)(a).
22
Id at s
ection 33(1)(b).
23
Id at s
ection 33(1)(c).
24
Id at s
ection 33(1)(d).
25
Id at s
ection 33(1)(e).
26
These regulations were promulgated in terms of
section 100
of the
Electoral Act and
they are 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.
27
Id at r
egulation 11(3).
28
Id at r
egulation 12(4).
29
Above n 17
.
30
Above n 26.
31
Section 1(d)
provides:
“The Republic of South Africa is
one, sovereign, democratic state founded on the following values:
(d) Universal
adult suffrage, a national common voters roll, regular elections and
a multi-party system of democratic government,
to ensure
accountability, responsiveness and openness.”
32
Section 3(2)(a)
provides:
“All
citizens are—
(a)
equally
entitled to the rights, privileges and benefits of citizenship”.
33
Section 9
provides:
“(1) Everyone
is equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality
includes the full and equal enjoyment of all rights and freedoms.
To promote the achievement of equality, legislative
and other
measures designed to protect or advance persons, or categories of
persons, disadvantaged by unfair discrimination may
be taken.
(3) The
state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.
(4) No
person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5) Discrimination on one or more of the grounds
listed in subsection (3) is unfair unless it is established that the
discrimination
is fair.”
34
Section 10
provides:
“Everyone has inherent dignity and
the right to have their dignity respected and protected.”
35
Section 19(3)(a)
provides:
“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”.
36
Regulation 12(4) provides:
“If the application is
approved and—
(a) the applicant
produces an identity document to the special voting officer, and
(b) the special voting officer is satisfied that the applicant is
the person described in that identity document,
the applicant’s
identity document and hand is marked in the manner described in
regulation 18 and he or she is handed a ballot
paper only for an
election for the National Assembly, marked on the back for that
election.”
37
Case Number 4044/09, North Gauteng High Court,
Pretoria, 9 February 2009, unreported.
38
Act 13 of 1995.
39
Section 16(2) provides:
“
(2)
The rules shall, when it is in the
interests of justice and with leave of the Court, allow a person—
to bring a matter directly to the Court; or
to appeal directly to the Court from any other court.”
40
[1998] ZACC 3
;
1998 (4) BCLR 415
(CC);
1998 (2)
SA 1143
(CC).
41
Id at paras 7-8.
42
Id at para 9. See also
Van der Spuy v General Council of the Bar
of South Africa
[2002] ZACC 17
;
2002 (10) BCLR 1092
(CC);
2002
(5) SA 392
(CC) at para 6;
National Gambling Board v Premier,
KwaZulu-Natal and Others
[2001] ZACC 8
;
2002 (2) BCLR 156
(CC);
2002 (2) SA 715
(CC) at para 29;
Moseneke and Others v The Master
and Another
[2000] ZACC 27
;
2001 (2) BCLR 103
(CC);
2001 (2) SA
18
at paras 18-9;
Dormehl v Minister of Justice and Others
[2000]
ZACC 4
;
2000 (5) BCLR 471
(CC);
2000 (2) SA 987
(CC) at para 5;
Christian Education South Africa v Minister of Education
[1998]
ZACC 16
;
1998 (12) BCLR 1449
(CC);
1999 (2) SA 83
(CC) at paras 3-4;
Minister of Justice v Ntuli
[1997] ZACC 7
;
1997 (6) BCLR 677
(CC);
1997 (3) SA 772
(CC) at para 4;
Transvaal Agricultural
Union v Minister of Land Affairs and Another
[1996] ZACC 22
;
1996 (12) BCLR 1573
(CC);
1997 (2) SA 621
(CC) at para 16;
Brink
v Kitshoff NO
[1996] ZACC 9
;
1996 (6) BCLR 752
(CC);
1996 (4) SA
197
(CC) at para 3;
Besserglik v Minister of Trade, Industry and
Tourism and Others (Minister of Justice intervening)
[1996] ZACC
8
;
1996 (6) BCLR 745
(CC);
1996 (4) SA 331
(CC) at paras 4-6;
Luitingh v Minister of Defence
[1996] ZACC 5
;
1996 (4) BCLR 581
(CC);
1996 (2) SA 909
(CC) at para 15;
S v Mbatha, S v Prinsloo
[1996] ZACC 1
;
1996 (3) BCLR 293
(CC);
1996 (2) SA 464
(CC) at para 29;
Executive Council of Western Cape Legislature
and Others v President of the Republic of South Africa and Others
[1995] ZACC 8
;
1995 (10) BCLR 1289
(CC);
1995 (4) SA 877
(CC) at
paras 15-7; and
S v Zuma and Others
[1995] ZACC 1
;
1995 (4)
BCLR 401
(CC);
1995 (2) SA 642
(CC) at para 11.
43
Above n 37.
44
Minister of Home Affairs and Another v Fourie
and Another (Doctors for Life International and Others as Amici
Curiae); Lesbian
and Gay Equality Project and Others v Minister of
Home Affairs and Others
[2005] ZACC
19
;
2006 (3) BCLR 355
(CC);
2006 (1) SA 524
(CC).
45
Bhe and Others v Magistrate, Khayelitsha, and
Others (Commission for Gender Equality as Amicus Curiae); Shibi v
Sithole and Others;
South African Human Rights Commission and
Another v President of the Republic of South Africa and Another
[2004] ZACC 17
;
2005 (1) BCLR 1
(CC);
2005 (1) SA 580
(CC).
46
Fourie
above n 44 at para 42.
47
Bhe
above n 45 at p
ara 33.
48
Act 25 of 1961.
49
Fourie
above n 44 at
para 42.
50
Id at
para 45.
51
Id at para 40.
52
Id at para 42.
53
Act 38 of 1927.
54
Bhe
above n 45 at
para 33.
55
Id.
56
Section 20
of the
Electoral Act, read
with Schedule 1 of that Act.
The election timetable was gazetted on 16 February 2009. See GN 189
GG 31906 of 16 February 2009.
57
Fourie
above n 44 at para 39;
Mkontwana
v Nelson Mandela Metropolitan Municipality and
Another; Bissett and Others v Buffalo City Municipality and Others;
Transfer Rights
Action Campaign and Others v MEC, Local Government
and Housing, Gauteng, and Others (KwaZulu-Natal Law Society and
Msunduzi Municipality
as Amici Curiae)
[2004] ZACC 9
;
2005 (2)
BCLR 150
(CC);
2005 (1) SA 530
(CC) at para 11.
58
Fourie
above n 4444 at para 39.
59
Section 172(2)(b) of the Constitution
60
The
Electoral Act was
amended by the
Electoral Laws Amendment Act 34
of 2003
and the
Electoral Laws Second Amendment Act 40 of 2003
.
61
Dormehl
above n 42.
62
Section 3(2)(a) of the Constitution.
63
Section 3(2)(b) of the Constitution.
64
Section 19(3)(a) of the Constitution.
65
Section 9(1) provides:
“A
registered voter or person who has applied for registration as a
voter and whose name or ordinary place of residence has
changed,
must apply in the prescribed manner to have that change recorded in
the voters’ roll or in that person’s application.”
66
Section 60(1) provides:
“
The
Commission must—
(a) establish voting districts for the whole of
the territory of the Republic;
(b) determine the boundaries of each voting
district in accordance with the factors mentioned in section 61; and
(c) keep a map of each voting district.”
67
Above n 42 at para 19.
68
Id.
69
Section 38 of the Constitution provides:
“Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has
been infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who
may approach a court are:
anyone acting in their own interest;
anyone acting on behalf of another person who cannot act in their
own name;
anyone acting as a member of, or in the interest of, a group or
class of persons;
anyone acting in the public interest; and
an association acting in the interest of its members.”