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Migration, street democracy and expatriate voting rights 157
cases already served before the Court in the Richter case. Ngcobo J rejected
this argument by carefully distinguishing the Richter case from the matter
before him. He explained that the case before him dealt with the eligibility
to register as a voter in South African law, while the Richter case dealt with
the restrictions and burdens that could be placed on an already registered
voter who wished to exercise his or her right to vote. 58 By drawing this
distinction between the right to register and the right to vote, Ngcobo J
reveals that the Richter judgment rested on the principle that every
registered voter must be given a reasonable opportunity to cast a vote in an
election (which might mean the reasonable opportunity to cast a special
vote overseas). Ngcobo J thus offers a third possible ground for the
judgment in Richter. If we accept his interpretation, this would explain why
O’Regan J never explicitly referred to ‘the class of registered voters who are
ordinarily resident in the Republic’ but only spoke about the ‘class of
registered voters’, 59 or more descriptively, about ‘any citizen who wishes
to vote in the election [and] is a registered voter’ as the target of her
concern. 60
A rejection of the classification of registered voters into resident and
non-resident citizens was thus implied in the Richter judgment from the
start. If the class of all registered voters is taken as the frame of reference,
as O’Regan J must now be assumed to have done, then the attempts to
further classify voters according to their activities overseas or their
residence status become constitutionally untenable. O’Regan J simply
accepted as a self-evident constitutional principle that voter registration
conclusively settled the right to cast a special vote. All that mattered
thereafter was to ensure that all registered voters were given a reasonable
opportunity to cast their vote. If the second severance order in the Richter
case is understood in this way, it means that the judgment has nothing to
do with the vindication of expatriate voting rights. The effect of the
judgment might well have been that some expatriate citizens acquired the
right to vote (which they did), but the reason they did so was purely
because their names still appeared on the voters’ roll, not because of any
independent constitutional principle that citizenship includes the right of
expatriate citizens to vote or to register as voters. 61
While this narrow reading of the second severance order might have
some initial appeal (in as far as it at least provides us with a reason for the
order), the fact of voter registration cannot by itself provide a reason for the
second severance order. To begin with, registration as a voter is not a onceoff
event. There is a (widely neglected) civic and legislative duty on the
58 AParty (n 9 above) paras 52 - 53.
59
AParty (n 9 above) para 72.
60 AParty (n 9 above) para 74.
61 This is a point lost on the expatriate voting rights lobby which continues to claim that
the Richter judgment recognised the constitutional right of all expatriate citizens to vote.
See further below.