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[77] The only argument on behalf of the respondents can be risks to the integrity of
the polling process, and a strain on financial and logistical resources available. Such
argument, however, falls away when regard is had to the fact that the logistical
arrangements have to be made for the classes of citizens abroad who are allowed to
bring out special votes. The only issue can be financial namely the costs of
transporting extra ballot papers to and from South African embassies, High
Commissions and consulates which, however, would not place an undue burden on
the respondents’ resources. Any risks attendant to the bringing out of special votes
will be the same as those existing for the special votes which are allowed in section
33 as it presently stands.
[78] It is clearly unfair discrimination to exclude certain classes of citizens from
exercising their right to vote whilst allowing others (who have no distinguishing
features other than their reason for being abroad) to vote. In Larbi-Odam v MEC for
Education (North-West Province 1998 (1) SA 745 (CC) the exclusion of noncitizens from appointment in permanent teaching posts was held to be unfair
discrimination. (See also Union of Refugee Women and Others v Director: Private
Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC)).
[79] It is clear that the application must succeed. During argument Mr. Pelser
indicated that prayer 6.6 was abandoned.
[80] Costs must follow the event.
[81] The following order is accordingly made:
1. An order is granted in terms of prayers 1, 2, 2.1,
2.2, 2.3, 3, 4,5, 6, 6.1, 6.2 6.3, 6.4, 6.5 , 6.7 of the
notice of motion.
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