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13 [27] Urgency was also argued and this court finds that the matter is urgent enough to be dealt with as an urgent matter. [28] Mr.Pelser, who appeared for the applicant, together with Mr. du Plessis, filed comprehensive heads or argument. Heads of argument were not filed on behalf of any of the other parties despite this Court's specific directive in this regard. [29] After Hearing argument the Court reserved judgment and indicated that judgment would be handed down on the 9th February 2009. [30] Section 1(d) of the founding provisions of our Constitution declares that: “The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b)  (c) ... (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.” [31] The right to political participation is a fundamental human right, which is set out in a number of international and regional human-rights instruments. In most of these instruments, the right consists of at least two elements: a general right to take part in the conduct of public affairs; and a more specific right to vote and/or to be elected. Thus art 25 of the International Covenant on Civil and Political Rights ("ICCPR") provides: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in art 2 and without unreasonable restrictions:

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Richter v. Minister of Home Affairs

Judgment

Question Presented: Whether Section 33(1)(b) and Section 33(1)(e) of the Electoral Act 73 of 1998 — which limited the "special vote" to South African citizens absent from the Republic only if they were on "government service" (or members of the household of such persons), while effectively excluding all other citizens living or working abroad — unjustifiably limited the constitutional right to vote under Section 19(3)(a) of the Constitution, read with the rights to equality (Section 9(1)), human dignity (Section 10), and equal citizenship (Section 3(2)(a)).

Alleged Acts: The applicant, Willem Stephanus Richter, was a South African citizen who was working abroad. He was a registered voter in South Africa but would be outside the country on the day of the national and provincial elections scheduled for April 22, 2009. Richter wished to vote but was unable to return to South Africa for that purpose. Under Section 33 of the Electoral Act 73 of 1998, "special votes" were available only to narrowly defined categories of voters who could not vote at their designated polling stations on election day. Critically, Section 33(1)(e) — the catch-all provision for persons absent from the Republic — was interpreted by the Electoral Commission as not extending to ordinary South African citizens living or working abroad who were not on government service. This meant that citizens like Richter, who were abroad for private employment or other personal reasons, were effectively denied the ability to cast any vote — whether in person or by special vote.

Procedural history: Richter applied to the Gauteng Provincial Division (Pretoria) for an order declaring Section 33(1)(b) and Section 33(1)(e) of the Electoral Act unconstitutional, as well as certain related regulations. The Democratic Alliance and another party intervened in the proceedings. On February 9, 2009, Ebersohn AJ found in favour of Richter and declared sections 33(1)(b) and 33(1)(e) of the Electoral Act unconstitutional, along with certain related regulations. The court held these provisions were in conflict with sections 3(2)(a) (right to equality before the law), 9(1) (equality), 10 (human dignity), and 19(3)(a) (right to vote) of the Constitution of the Republic of South Africa, 1996.

Summary: South African plaintiff, Ritcher, argued statutory restrictions on right to vote violated constitutionalized fundamental right to vote.

Conclusion: The court declared the following parts of Section 33 to be in conflict with sections 3(2)(a), 9(1), 10 and 19(3)(a) of the Constitution and thus invalid, and ordered that the special vote provisions be read to extend to all registered South African voters who are absent from the Republic on election day.

Legal Issue(s)

Accessibility

Applicable Law(s): Constitution of the Republic of South Africa, Electoral Act of 1973, and Electoral Regulations

Region: Africa

Country: South Africa

Language of Decision

English

Court: Constitutional Court

Election Type: General

Date of decision: Feb 9, 2009

Geolocation

Latitude: -26.1865

Longitude: 28.0393

: Geolocation

Link: https://www.saflii.org/za/cases/ZAGPHC/2009/21.pdf

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Richter v. Minister of Home Affairs.pdf
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Election Judgments - IFES

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Richter v. Minister of Home Affairs

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