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146 Chapter 5
suffrage’. 17 In the ACDP case, the Constitutional Court accordingly laid
down the general principle that when interpreting provisions in electoral
statutes, courts must ‘seek to promote enfranchisement rather than
disenfranchisement and participation rather than exclusion’. 18
It was precisely on the basis of these inclusive provisions and
pronouncements that Willem Richter launched his urgent application in
the North Gauteng High Court for an order to declare section 33(1)(e) of
the Electoral Act 73 of 1998, which regulates the granting of absentee
votes, unconstitutional. 19 Mr Richter is a 27 year-old South African citizen
who grew up in Pretoria, qualified as a teacher at the University of the
North-West, served in the Democratic Republic of the Congo as a member
of a South African peace-keeping force, but currently lives and works in
England as a teacher. Towards the end of 2008, Mr Richter approached the
South African Electoral Commission to find out whether and how he
could vote in the (then) upcoming 2009 general elections. He was informed
that the only way for him to vote was to return to South Africa and to vote
in the voting district where he was last registered as a voter. This was so
because section 33(1)(e) of the Electoral Act restricted absentee voting
rights to holiday makers, businessmen, students and sportsmen, who were
temporarily outside the country. 20 Mr Richter's temporary absence from
the Republic, due to his employment in England, thus fell outside the
limited scope of the section.
The predicament of Mr Richter and many similarly-positioned citizens
was soon taken up by a number of opposition parties and civil society
organisations. On 22 January 2009, former President FW de Klerk
requested the Commission, in the name of the Centre for Constitutional
Rights, to re-interpret the provisions of section 33(1)(e) in a manner that
would allow all citizens living and working abroad to vote in the national
elections. 21 When this request was again formally turned down, the
17 Sec 1(d) of the Constitution.
18
African Christian Democratic Party v Electoral Commission [2006] ZACC 1; 2006 3 SA 305
(CC); 2006 5 BCLR 579 (CC) para 23.
19 Richter v Minister of Home Affairs [2009] ZAGPHC 21; 2009 5 BCLR 492 (T).
20
The section reads as follows: ‘The Commission must allow a person to apply for a
special vote if that person cannot vote at a voting station in the voting district in which
the person is registered as a voter, due to that person’s 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’ (my emphasis).
21 During the subsequent litigation, the Minister of Home Affairs, interestingly enough,
disputed whether the narrow interpretation of sec 33(1)(e) by the Electoral Commission
was correct. The Minister argued against the Electoral Commission that sec 39(2) of the
Constitution requires a broad interpretation of the term ‘business trip’ to include any
temporary employment overseas. The Constitutional Court rejected this interpretation
and confirmed the interpretation of the Act by the Electoral Commission. I do not
explore this issue any further in this note. See L Nkuna ‘The right to vote, section 39(2)
and the limits of conforming interpretation under the Electoral Act 73 of 1998’ (2009)
24 SAPL 638.