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Migration, street democracy and expatriate voting rights 151
justification for the various restrictions on absentee voting rights had to be
logistical or administrative in nature.
This assumption should not blind us to the fact that the ill-conceived
section 33(1)(e) remained embedded within a larger residence based
approach to the electoral system, as reflected in section 8(3) of the Electoral
Act. Section 33(1)(e) set out to combine three elements of the residence
based electoral system, but ended up being little more than a legislative
self-contradiction. The section provided that only registered voters (the
first element: registration) who were temporarily absent (the second
element: residence) for a selected number of reasons (the third element:
reason) could apply for special absentee votes. The obvious weakness was
the third element. It had no principled connection to the larger residence
based electoral system, but formed part of a misguided attempt to use the
Electoral Act to counter emigration from the Republic. Once the Court
had accepted that the equality provisions of the Constitution required that
diplomats (section 33(1)(b)) and other absentee voters (section 33(1)(e))
should be placed on exactly the same footing, the second element
(temporary absence or residence) also became problematical. As this
requirement did not apply to absentee voters in the government service
category of section 33(1)(b), Ebersohn J held that it could also not apply to
the absentee voters in the section 33(1)(e) category. What was more,
because there was no further reason to distinguish between the two
different classes of absentee voters, the High Court ordered that section
33(1)(b) be deleted from the Electoral Act and that section 33(1)(e) be
extended to cover all registered voters who are absent from the Republic
on election day (including those in government service). It was in order to
secure this extension, and for no other reason, that the Court ordered the
deletion of the temporary absence requirement (the second severance
order) in addition to the deletion of the listed categories (the first severance
order). 37 All absentee voters, diplomats and expatriates alike, would in
future equally qualify in terms of the same statutory provision for a special
absentee vote in national elections. 38
It is not necessary to explore the weakness of the High Court’s equality
argument here. Nothing in my discussion turns on it. Suffice to say that
37 AParty (n 9 above) para 81.
38 This equalisation meant that voters in the former diplomatic service category were
effectively disenfranchised as far as provincial government elections were concerned.
Before the High Court judgment, absentee votes in terms of sec 33(1)(b), read with reg 9
of the Election Regulations (GN R12 in GG 25894 of 2004-01-07), could be cast in both
national and provincial elections (on the strength of a deeming provision that all such
votes were cast in Pretoria and thus in the Gauteng Province). By contrast, absentee
votes in terms of sec 33(1)(e), read with reg 12, were restricted to national government
elections only. The High Court did not deal with this effect of its order. The
Constitutional Court reinstated the right of absentee voters in government service to
vote in both national and provincial elections (para 93). However, it refused to rule on
the right of other absentee voters to vote in provincial elections (paras 85 - 92). I return
to this point later in the discussion.