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6 (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) (b) the procedure for applying for special votes; and procedures, consistent in principle with Chapter 4, for the casting and counting of special votes." [10] Chapter 3 of the Regulations bears the heading "Special Votes" and contains regulations 6, 7, 8, 9, 10, 11 and 12. [11] The applicant filed a supplementary affidavit , with attaché to it , a copy of the address the then Minister of Home Affairs, Dr. Mangasutho Buthelezi delivered in parliament on the 25th November 2003 at the time of the the Second Reading Debate of the Electoral Laws nSecond Amendment Bill. The respondents did not object to this. In his address the Honourable Minister is reported to have stated the following: “Madam Speaker: Subsequent to the passing of the Electoral Laws Amendment Act, 2003 (Act No. 34 of 2003) by Parliament, representations were made to the President and the Deputy President. Reportedly, a key promoter of such representation was our colleague Dr. C. Mulder MP who reportedly made them on behalf of South African citizens living abroad arguing that the Electoral Laws Amendment Act as it stands infringes upon their constitutional right to vote. When I spoke to this House during my Department’s budget debate, I had committed myself to make provision to enable South Africans abroad to

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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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