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152 Chapter 5
because of the obvious difficulties with the argument, the Constitutional
Court deliberately decided not to endorse the High Court’s equality-based
approach to the right to vote. 39 Given the rejection of the equality
argument, the Constitutional Court understandably also refused to
confirm the deletion of the section 33(1)(b) diplomatic service category
from the Electoral Act. 40 This refusal, although seemingly only an
incidental feature of the Court’s judgment, is more significant than it might
appear at first sight. Recall that in Ebersohn AJ’s mind, the deletion of
section 33(1)(b) and the severance of the temporary absence requirement
from section 33(1)(e) formed two sides of the same equality coin. By
refusing to confirm the first deletion, the Constitutional Court effectively
removed the whole basis of Ebersohn AJ’s claim that the temporary
absence requirement should also be deleted.
This returns us to the basic question posed above: On what basis was
it thereafter possible for the Constitutional Court to proceed to rule that the
second severance order of the High Court was both necessary and correct?
On what constitutional basis did the Court reject the statutory distinction
between resident and non-resident citizens for the purposes of absentee
voting rights?
4 Richter in the Constitutional Court
As a starting point for further discussion, it is perhaps best to quote the
complete judgment of O’Regan J on behalf of the Constitutional Court as
far as it pertains to the second severance order and the voting rights of nonresident
citizens:
The High Court also severed the word ‘temporary’ from the section. In my
view, this order is correct. 41
Incredible as it may sound, this is the full, reasoned judgment of the
Constitutional Court on the point. This single statement appears towards
the end of the judgment, just after O’Regan J had confirmed the first
severance order of the High Court and just before she restated the new
wording of section 33(1)(e) after the two severances had been effected. It is
therefore not immediately clear from the judgment precisely what the
constitutional defect was that had to be remedied by the second, as
opposed to the first, severance order. The Court had already rejected the
equality argument of the High Court, on the one hand, and the
applications for direct access on the constitutionality of the residence based
registration system, on the other (in the AParty case). The problem could
not be, therefore, that the temporary absence requirement incorporated an
39 Richter (n 9 above) paras 78 & 99.
40
Richter (n 9 above) para 93.
41 As above.