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150 Chapter 5
From this starting point, a number of conclusions quickly followed.
The first was that the state could not justify the unfair discrimination
against temporarily absent voters in private employment with an appeal to
logistical or administrative concerns. 34 Provision for special voting was
already made for people working in government service at diplomatic
missions across the world. There was no reason why the existing
arrangements could not simply be extended to include other classes of
absentee voters as well. In fact, given the weakness of any logistical
justification for the discrimination, the Court all but agreed with Mr
Richter and the expatriate voting rights lobby that the disenfranchisement
of voters who live and work overseas formed part of a vindictive policy of
retaliation against the unpopular emigrant minority: 35
It must be noted that in terms of the then current legislation namely section 25
of the Electoral Act, 202 of 1993, South African citizens who were outside the
country during the 1994 elections could vote at foreign voting stations
without even having to apply for special votes. No distinction was drawn
between different classes of citizens (ie government employees or privately
employed citizens) [...] The effect of the [subsequent legislative changes],
watered down the right to vote which is inexplicable, arbitrary and
inconsistent with the word and spirit of the fundamental right to vote
contained in the Constitution.
The Minister of Home Affairs was, herself, partly to blame for the
starkness of the conclusion reached by the Court. In none of the Richter
cases did the Minister try to defend a residence based approach to absentee
voting rights as a matter of democratic principle or policy. In fact, the
Minister completely failed to file any heads of argument in the High Court
application (in spite of repeated requests by the Court to do so). 36 In the
Constitutional Court, where the Minister finally filed heads of argument,
the only democratic principle that the Minister could offer was a
separation of powers argument, namely, that the design of the electoral
system fell squarely within the jurisdiction of the democratic legislature. In
the absence of a convincing argument based on the constitutional value of
democracy itself, Ebersohn AJ proceeded as if the only possible
34 AParty (n 9 above) para 77.
35 AParty (n 9 above) para 12 read with paras 45 - 48. Ebersohn AJ believed that the same
conclusion was underscored by the genesis of the provision. In this regard, he relied
extensively on a remark made by the then Minister of Home Affairs, Mangosuthu
Buthelezi of the Inkatha Freedom Party, during the Second Reading Debate of the
Amendment Bill: ‘When I spoke to this House during my Department’s budget debate,
I had committed myself to make provision to enable South Africans abroad to vote.
Accordingly, 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 [...] 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.’
36 AParty (n 9 above) paras 7 28.