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2 EBERSOHN AJ. [1] This is an application to declare as being unconstitutional, certain provisions of the legislation relating to elections. [2] The personal facts relating to the applicant are not in dispute. He is an adult male citizen of the Republic of South Africa with identity number [number]. He is in possession of the bar coded identification document that entitles him to vote in the Republic of South Africa. He is temporarily residing at [address] Mitcham, Surrey, United Kingdom. He is domiciled in the Republic of South Africa with his place of abode to which he intends to return at the end of 2009 at [address], Swawelpoort, Pretoria, Gauteng. [3] For the specific purpose of this application he reiterated that he is registered as a voter in accordance with the Electoral Act, No 73 1998 (“the Electoral Act”), in Voting District No 32951932, which is centred in Faerie Glen, Pretoria, Gauteng, and his name appears on the voters roll and he voted in the previous elections held on the 14th April 2004. [4] The first respondent is the Minister of Home Affairs, The second respondent is the Electoral Commission and the third respondent is the Minister of Foreign Affairs. A copy of the founding papers was also served on the State President. [5] The first respondent opposed the application, the second respondent filed a notice to the effect that it abided in the decision of the Court. The third respondent was cited nominally only and did not respond. The first respondent filed an answering affidavit. The first and second respondents applied for a postponement of the matter. The first respondent stated in this regard in an affidavit that he wished to gather factual information over a wide field to put before this Court so as to enable this Court to appreciate why there was a discrimination between certain classes of voters. In the affidavit some legal points which were not sustainable under the circumstances, namely that this case was about the interpretation of a statute only, were also raised. The respondents apparently wanted to put facts relating to expenses and how similar processes where handled by other countries where their citizens outside their respective countries could vote, before the Court The application for a postponement was

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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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Richter v. Minister of Home Affairs

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