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158 Chapter 5
Chief Electoral Officer (and citizens individually) to ensure the integrity of
the registration process and voters’ roll, by constantly reregistering and
deregistering voters. The supporting role of citizens in this process is
defined in section 9(1) of the Electoral Act, which reads as follows:
A registered voter or person who has applied for registration as a voter and
whose name or ordinary place of residence has changed, must apply in the
prescribed manner to have that change recorded in the voters’ roll or in that
person’s application.
As the Electoral Commission made clear in its heads of argument, the
‘primary statutory duty’ to ensure the integrity of the voters’ roll rests on
‘the voter whose ordinary residence has changed to have that change
recorded by the Commission’. 62 Registered voters who permanently leave
the country must, as a matter of law, inform the Electoral Commission of
that fact. Because such voters would no longer comply with the residence
requirement in section 8(3) of the Act, the Chief Electoral Officer will have
no choice but to remove their names from the voters’ roll. 63 In the ordinary
legislative scheme of things, an expatriate citizen would lose her eligibility
to vote at the same moment that she permanently leaves the country. 64 An
expatriate South African who failed to comply with her duty as a citizen to
deregister as a voter, cannot later turn around and seek to enforce a right
to vote on the basis of her registration on the very same voters’ roll whose
integrity she had deliberately and unlawfully undermined by becoming a
ghost voter. The narrow reading of the second severance order would
sanction opportunism in the shadow of the law, which is exactly the
opposite of the civic mindedness that the Court seeks to reward and
encourage among overseas citizens. 65
Secondly, special votes per definition constitute an exception to the
general rule and therefore justify a unique application and voting
procedure. Under these special circumstances, the mere fact that a
registered voter is physically absent from the Republic might provide
enough reason to require of that citizen to prove to the satisfaction of the
Special Electoral Officer that she is still ordinarily resident in, or only
temporarily absent from, South Africa. It cannot be said that it is irrational
(arbitrary) or unreasonable (unfair) to expect of all absentee voters to
reconfirm their eligibility as voters, given the duties implied by the
residence based electoral system as a whole. One could also say that
absence from the Republic on election day creates a reasonable suspicion
62
Second Respondent’s Heads of Argument para 72.4
63 Section 8(3) read with sec 11(1)(b) of the Act.
64 Whether this should be taken to happen when that person actually leaves the country,
or should be deemed to have happened after five years of absence from the country, as
in the case of Canada, is beside the point I am trying to make.
65 If only to symbolically underscore this fact, it might be necessary to consider an
amendment to the Electoral Act to sanction non-compliance with the statutory duty to
reregister or deregister as a voter after every change of ordinary residence.