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156 Chapter 5
severance order, perhaps her more general analysis of the nature and
importance of the right to vote contains the ground for her judgment. 52
4.2 The right to vote and section 19 of the Constitution
O’Regan J insisted that the right to vote must be approached from the
perspective of dignity (as opposed to equality). Following the celebrated
comments by Sachs J in the August case, O’Regan J described the right to
vote as a ‘badge of dignity’ and a ‘symbol of citizenship’. 53 From this
dignity based perspective, the formal equality of political rights is not its
greatest vice, as a long tradition of Marxists has claimed, but its greatest
virtue. It provides the basic formula of instant nationhood and implies that
all voting rights provisions must as far as possible be interpreted to favour
the enfranchisement of as many people as possible.
It is certainly possible to push this dignity based approach to political
rights to reach the conclusion that nationhood and citizenship formally
and conceptually imply the right to vote as a necessary constituent. 54 This
is certainly how the expatriate lobby has embraced this portion of O’Regan
J’s judgment. 55 However, O’Regan J herself did not pursue this line of
reasoning. She immediately qualified her dignity based approach by
adding that the right to vote is not merely a symbolic icon of nationhood
but an operative feature of a working multi-party democracy. 56 The right
to vote is thus inextricably linked to and internally limited by the right to
free and fair elections. 57 In as far as the Constitutional Court refused to
entertain the argument that the residence based nature of the electoral
system and registration process is unconstitutional, nothing that O’Regan
J said or implied in her analysis of the right to vote can have any conclusive
bearing on the merits of the second severance order.
We are seemingly no closer to answering the question of why O’Regan
J declared the temporary absence requirement unconstitutional and issued
the second severance order. Perhaps we might have more success if we step
back from the case for a moment, and consider the interpretation that the
Constitutional Court itself has placed on the judgment of O’Regan J.
4.3 The right to vote and the AParty case
In rejecting the applications for direct access in the AParty case, Ngcobo J
had to deal with the argument that the issues in the AParty and Moloko
52 Richter (n 9 above) paras 52 - 56.
53
Richter (n 9 above) para 52.
54 Second Respondent’s Heads of Argument paras 68 - 74.
55 See N de Havilland ‘The right to vote’ (2009) 3/22 ConsAlert 1.
56
Richter (n 9 above) para 53.
57 Richter (n 9 above) paras 54 - 55.