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7 vote. Ccordingly , in the Electoral Law Amendment Bill which I brought to Cabinet provision was made for all South Africans abroad to vote, irrespective of their reasons to be abroad, However, Cabinet chose not to adopt my proposal. During its parliamentary process the Electoral Law Amendment Bill was amended by the Portfolio Committee to make provisions similar to the one now contained in the Electoral Law Second Amendment Bill which is before us. However, such provisions were then dropped. After considering representations submitted to him, the President instructed that urgent amendments be prepared to provide for the casting of votes by South African citizens who are registered on the voters’roll and are temporarily absent from the Republic during the election, elsewhere than the voting district where they reside. I am pleased that what I had originally proposed as the responsible line function Minister has now been partially accepted and is before us for approval. I have made many other proposals within my line functions responsibilities and as the leader of a minority Party in Cabinet, which proposals have not been embrace, ranging form civic affairs matters to HIV/AIDS, crime and unemployment. Because he seems to carry more credence than I do, I should have perhaps considered to ask Dr. Mulder to champion them. I do not believe that the Electoral Law Amendment Act is as it stands, unconstitutional, for the right to vote of citizens abroad may be limited, as it is limited in many established democracies. Hover, I felt that as a matter of policy it was essential to allow all South Africans an opportunity to participate in the electoral process. However, what in my opinion was not constitutionally problematic, may become so as the Bill before us now only allows certain citizens who are abroad for certain temporary purposes to vote, while depriving others who are in a similar situation of the same opportunity. For instance, a citizen who is abroad working on a temporary basis as an employee will not be able to take advantage of this opportunity. The same will apply to all South Africans who live abroad for an extended period of time. It may be problematic to justify for such differentiation of treatment. It may also be problematic to administer this Bill as it may become difficult to judge whether somebody is indeed abroad on a temporary basis and to give meaning to the expression “temporary” under the various real life

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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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