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154 Chapter 5
that the constitutional argument must be restricted only to those voter
activities that were listed. This would explain why she continued along
these lines by describing Mr Richter as a person who fell outside the listed
classes mentioned in section 33(1)(e) but who ‘has not permanently left the
country’ (my emphasis). By adding the highlighted qualification, O’Regan
J again indicated that she was limiting herself to the first of the
classifications mentioned above. In fact, her statement gives the
impression that Mr Richter’s voting rights would indeed have been
affected had he permanently left the country. O’Regan J dealt with the
plight of Mr Tipper and Mr and Mrs Moloko, the other applicants in the
case, in much the same manner. She again stressed that these registered
voters considered themselves to be resident citizens of South Africa who
were only temporarily outside the country. 44 Once more the impression is
created that this is indeed a decisive consideration in the case.
A second point to consider is that O’Regan J at times said in so many
words that her sympathy towards the plight of all the applicants was
closely tied to the fact that they were only temporarily absent from the
country. She explained, for example, that their temporary absence will
economically benefit the Republic ‘when they return’ with greater work
experience or money to buy a house. 45 When O’Regan J concluded her
rights analysis with the statement that section 33(1)(e) limits the right to
vote ‘by restricting the classes of voters who are absent from the Republic
on polling day from participating in elections’, she could therefore only
have been referring to the classes of voter activities listed in the section.
The section limited the right to vote because it excluded some classes of
registered voters who were temporarily absent from the country from
casting special votes. The question of whether the section also limited the
right to vote because it disqualified the class of expatriate or non-resident
citizens did not receive any attention from O’Regan J during her rights
analysis.
O’Regan J proceeded in the next eight paragraphs of her judgment to
consider whether the limitation of the right to vote could be justified in
terms of section 36 of the Constitution. The limitation analysis confirms
that the disqualification of expatriate citizens was not the cause of her
constitutional concerns in the matter. O’Regan J made this clear at the
outset, by formulating the question involved as the possible limitation of
the ‘under-inclusiveness of [...] the categories listed in section 33(1)(e)’. 46
She then immediately indicated that there was nothing contained in the
written argument of the Minister to justify ‘the restrictive classes contained
in section 33(1)(e)’ and that the Minister conceded as much. 47 O’Regan J
correctly indicated that the main thrust of the Minister’s written argument
44 Richter (n 9 above) para 66.
45 Richter (n 9 above) para 69.
46
Richter (n 9 above) para 76.
47 Richter (n 9 above) para 72.