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148 Chapter 5
voters for, and then vote in, South African national and provincial
elections. 25 What the newly-added parties to the Richter litigation wanted
was nothing less than for the Court to rule that the ordinary residence
requirement underlying the South African electoral system was
unconstitutional.
In response to this broadened and politicised agenda, the Minister of
Home Affairs and the Electoral Commission both urged the Court not to
rule on the constitutionality of the residence requirement on an urgent
basis and as a court of first and last instance. 26 The Commission also made
use of the opportunity to remind the Court that the design of the electoral
system was constitutionally left to the discretion of the legislature, and that
the ordinary residence requirement formed the backbone of the very same
system of proportional representation that the Constitution itself
prescribes. 27 The Electoral Commission added that the temporary absence
requirement for absentee voters in section 33(1)(e) of the Electoral Act was
merely the flipside of the ordinary residence requirement for voter
registration in section 8(3) of the Act. 28 The Electoral Commission insisted
that, if the Court could not at this stage rule on the constitutionality of the
residence requirement in section 8(3), then it could also not at this stage
rule on the constitutionality of the residence requirement in section
33(1)(e). 29 Thus, the Constitutional Court could, at best for the various
applicants, confirm the first severance order of the High Court.
The Constitutional Court agreed with much of the Minister’s and the
Commission’s argument. It specifically held that the constitutionality of
the residence requirement underlying the electoral system could not be
decided at this early (or late) stage, depending on how one looked at the
matter. 30 The Court also accepted that the design of the electoral system
was ‘a matter that lies peculiarly with Parliament’s constitutional remit’. 31
In spite of these agreements, the Court nevertheless proceeded to confirm
the second severance order of the High Court by striking the words
‘temporary absence’ from section 33(1)(e) of the Act. 32
The basic question that I am grappling with is how the Constitutional
Court could possibly have done what the Minister and Electoral
25 These parties also challenged the 15 days notice period in sec 33(1)(e) of the Electoral
Act. The Court dismissed this application. I do not discuss this aspect of the judgment
in any further detail. See Richter (n 9 above) para 80 - 84.
26 AParty (n 9 above) paras 21 - 22.
27 Second Respondent’s Heads of Argument para 74.
28
AParty (n 9 above) para 68.
29 AParty (n 9 above) para 71.
30 AParty (n 9 above) paras 72 & 80. The Court held that it was too late for it to be
approached on an urgent basis so shortly before the elections; the Court also held that it
was too early in the public debate and litigation process for it to be directly accessed on
the matter.
31
AParty (n 9 above) para 80.
32 AParty (n 9 above) paras 33 - 34.