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Migration, street democracy and expatriate voting rights 155
was directed against the registration of permanently absent or expatriate
citizens and that this question did not arise in the Richter case. 48 As
O’Regan J pointed out herself, the crux of the Minister’s argument was
that the distinction between resident citizens and expatriate citizens was
constitutionally justifiable. It was on the basis of this distinction that the
Minister argued that expatriate citizens did not qualify for special votes
(under section 33(1)(e)) or for voter registration (under section 8(3)). As
noted before, the only point that the Minister conceded was that all
resident citizens or temporarily absent voters had a right to cast a special
vote overseas. 49 There was indeed nothing in the written argument of the
Minister to justify any interpretation of section 33(1)(e) to the contrary.
The same does not apply to the second classification mentioned above.
The crucial point is that O’Regan J did not deem it necessary to deal with
justification for the disqualification of the class of non-resident citizens that
the Minister tried to provide.
The same applies to the argument by the Electoral Commission. Like
the Minister, the Commission also objected to the second severance order
while conceding the need for the first order. In as far as O’Regan J again
relied on the fact that the Commission did not oppose the relief sought, she
could only have been referring to the severance of the list of voter activities
from the section. 50 The comparative study undertaken by the Court during
the limitations analysis was likewise explicitly directed at the tendency of
democratic countries to allow voters to cast absentee votes without
restrictions ‘on the basis of the activity undertaken abroad by the absent
voters’ (my emphasis). 51 When O’Regan J concluded in paragraph 78 that
the limitation of the right to vote could not be saved by section 36 of the
Constitution, this conclusion therefore related only to the classification of
voters according to the activities that they were undertaking while
overseas. Nothing in the limitation analysis touched on the question of
whether the disqualification of the class of expatriate or non-resident
citizens could be or even needed to be constitutionally justified.
When the Court proceeded to consider the question of an appropriate
remedy for the constitutional defect in section 33(1)(e), it understandably
confirmed the first severance order of the High Court and deleted the list
of voter activities from the section. The deletion of this list was necessary
to make the section universally applicable to all absentee voters who were
temporarily absent from the Republic, regardless of the activity undertaken
abroad by the absent voters. Given the narrow frame of the reasoning that
preceded this severance order, this is where the judgment should have
stopped. If O’Regan J’s analysis of section 33(1)(e) failed to reveal what
constitutional defect the Court sought to remedy with the second
48 As above.
49 Richter (n 9 above) para 72.
50
Richter (n 9 above) para 75.
51 Richter (n 9 above) para 77.