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Migration, street democracy and expatriate voting rights 159
or presumption that the absentee is no longer ordinarily resident in South
Africa. Even if one were to derive a constitutional right to vote from the
fact of registration itself, then the temporary absence requirement would
constitute a justifiable limitation of that right, given the special
circumstances in which the right is exercised and the fact that the
requirement was designed as a mechanism to ensure the integrity of the
voting process within our residence-based electoral system. Even ordinary
voters do not acquire an absolute right to vote upon registration. The right
to vote is justifiably limited by a variety of factors. Many of these relate to
the logistical side of the process, including the accessibility and opening
hours of voting stations. 66 However, some of these factors relate to the
integrity of the voting process, like the need to provide positive proof of
identity at the voting station. The need to prove temporary absence from
the Republic in the case of special votes is of the same category. It is
legitimately designed as an internal audit measure to ensure the integrity
of the electoral process.
Thirdly, the attempt to reconcile the Richter judgment with the existing
residence based electoral system, by distinguishing between the fact of
registration and the act of voting, does not stretch very far. It runs into
serious difficulties as soon as the question of provincial and municipal
elections is broached. The vote of an expatriate citizen on the national level
is not tied to any particular voting district. In this instance, the requirement
that voters vote per district is largely a logistical and administrative
arrangement (as problems with the distribution of ballot papers during the
2009 general elections again underlined). Lack of ordinary residence in
South Africa might not itself place a bar on the right of non-resident
citizens to vote in this context. The same cannot be said about provincial
and municipal elections. As the Minister rightly pointed out, at the
provincial level (and even more so at the local level) the voting district in
which a voter is registered and ordinarily resident is crucial for the
proportional allocation of representatives to a particular provincial
legislature or municipal council. Expatriate citizens cannot require a right
to vote in provincial and municipal elections simply on the basis of prior
registration, without turning the residence requirement of the electoral
system into a farce and the fundamental constitutional principle of
proportional representation into a fiction. The Constitutional Court itself
must have realised this when it found itself unable to resolve the question
of special votes at the level of provincial elections, and therefore simply
decided to postpone further debate on the issue to another day.
In conclusion, it is simply not possible to escape the complex and
contested debate about the nature and benefits of citizenship with a formal
appeal to the fact of voter registration alone. The constitutional demerits of
66
See T Maseko ‘The right of blind people to vote: Is there a duty to do more?’ (2009) 24
SAPL 623.