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Migration, street democracy and expatriate voting rights 149
Commission thought was impossible, namely, to rule on a principled basis
on the constitutionality of the temporary absence requirement in section
33(1)(e) of the Electoral Act, while declining to rule on the
constitutionality of the permanent residence requirement in section 8(3) of
the Electoral Act. Why did the Court refuse to accept the constitutional
validity of a distinction between resident and non-resident citizenship for
the sake of section 33(1)(e)? Should this refusal be understood as an
insurmountable constitutional bar to the development of a post-apartheid
theory of democratic denizenship? The search for possible answers to these
questions must begin with a closer reading of the initial High Court
judgment.
3 Richter in the High Court
In his original notice of motion in the High Court, Mr Richter applied for
an order declaring that all registered voters who were working and living
outside the country, whether temporarily or not, have the right to cast a
special absentee vote in South African general elections. The broad scope
of the application rested essentially on an equality argument, directed at
the unequal treatment between various categories of registered voters. Mr
Richter’s main concern in this regard was not with the differentiation
within sub-section 33(1)(e) between different classes of temporarily absent
voters (students and temporary employees, for example), but the
differentiation within section 33(1) as a whole between different classes of
absentee voters. The section as a whole created two classes of absentee
voters. Section 33(1)(b) dealt with the first class and granted the right to
cast a special vote to voters who could not vote in their voting district due
to ‘absence from the Republic on government service or membership of the
household of the person so being absent’. As noted above, section 33(1)(e)
dealt with the second class and granted a right to cast a special vote to
voters who could not vote in their voting district because of a ‘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’.
Mr Richter pointed out that section 33(1)(b) of the Electoral Act
allowed people who work overseas in government service to cast special
votes abroad, while section 33(1)(e) denied the same right to people who
work overseas in the private sector. Alerted to this fact, the High Court
ruled that this differentiation was
an unacceptable form of discrimination in that it affords a privilege to people
on government services as opposed to people in the private sector and
amounts to totalitarism on the part of the state. 33
33 AParty (n 9 above) para 61.