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Migration, street democracy and expatriate voting rights 147
Freedom Front Plus announced that it would assist Mr Richter to
challenge the constitutionality of section 33(1)(e) in court. The High Court
(per Ebersohn AJ) eventually granted the application brought by Mr
Richter with costs. In the process, the Court ordered the severance of both
the limited number of voter activities listed in the section (call this the first
severance order) and the requirement that only voters who are temporarily
absent from the Republic may apply for special absentee votes (call this the
second severance order).
The effect of the first severance order was that Mr Richter could vote
in the upcoming 2009 general elections at a voting station in London.
Temporary absence from the Republic, for whatever reason, no longer
adversely affected the voting rights of citizens who were already registered
as voters. The effect of the second severance order was even more farreaching.
By scrapping the requirement that only registered voters who
were temporarily outside the country could vote overseas, the Court
opened the door for citizens who had permanently left the country
(expatriates) to also vote overseas in the general elections. 22 It was this
secondary effect of the judgment, rather than Mr Richter’s far narrower
predicament, which captured the headlines and websites in South Africa. 23
Regret was immediately expressed that Mr Richter had not also challenged
the residence based registration requirements of the electoral system as a
whole, so that the voting rights of non-resident citizens could be further
extended to expatriate citizens who were not registered as voters. 24
As it turned out, the perceived limitation of the Richter litigation was
of little import, for when the Richter case was served before the
Constitutional Court for confirmation a few weeks later, the dynamics of
the case had completely changed. A number of political parties and interest
groups had applied and were granted leave to join the confirmation
proceedings, either as intervening parties or friends of the court. A couple
of new applicants also made use of the opportunity to approach the Court
for direct access on issues relating to absentee voting rights. The newlyadded
parties to the dispute had a far broader political agenda than Mr
Richter. They explicitly sought an order from the Court to affirm the
constitutional right of non-resident or expatriate citizens to register as
22
In the end, more than 16 000 South African citizens voted overseas on 15 April 2009.
23 Ian Macdonald’s comment on the case, ‘The right to vote’, provides a typical example;
http://www.sagoodnews.co.za/newsletter_archive/the_right_to_vote.html (accessed
18 May 2009).
24 N de Haviland ‘The right of South African’s [sic] living abroad to vote’
www.cfcr.org.za/?p=416 (accessed 11 May 2009). De Haviland is the Director of the
Centre for Constitutional Rights of the FW de Klerk Foundation. The ‘ordinary
resident’ requirement underlying the Electoral Act, and the electoral system as a whole,
makes the registration of non-resident or expatriate citizens as voters impossible. Sec
8(3) of the Act provides that a person’s name ‘must be entered in the voters’ roll only for
the voting district in which that person is ordinarily resident and for no other voting
district’. In this regard, sec 7(3)(a) of the Act defines ‘ordinary residence’ as the ‘home
or place where that person normally lives and to which that person regularly returns
after any period of temporary absence’.