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160 Chapter 5
the attempt to distinguish between resident and non-resident citizens as far
as voting rights are concerned, must be grounded on other considerations.
One such consideration has been suggested by the expatriate voting rights
lobby. Myburg called the judgment of O’Regan J a ‘triumph of generosity
over mean-spiritedness’ and thereby captured the general spirit of the
positive reaction to the case on the internet. 67 This reaction was largely
informed by a comment that O’Regan J made about the nature of nonresident
or expatriate citizenship as a legitimate form of global citizenship.
This remark has been embraced by the expatriate voting rights lobby as the
substantive essence, if not the true ratio, of the judgment as a whole. Is this
correct? Does the idea of global citizenship, as O’Regan J formulated it,
finally provide an explanation for the second severance order and, at the
same time, serve as the master principle to govern the construction of
citizenship in post-apartheid South Africa?
4.4 The right to vote and global citizenship
The celebrated comment by O’Regan J about global citizenship is
contained in a larger passage that reads as follows: 68
I am influenced by the fact that, as several of the parties noted, we now live in
a global economy which provides opportunities to South African citizens and
citizens from other countries to study and work in countries other than their
own. The experience that they gain will enrich our society when they return,
and will no doubt enrich, too, a sense of a shared global citizenship. The
evidence before us, too, shows that many South African citizens abroad make
remittances to family members in South Africa while they are abroad, or save
money to buy a house. To the extent that citizens engaged in such pursuits
want to take the trouble to participate in elections while abroad, it is an
expression both of their continued commitment to our country and their
civic-mindedness from which our democracy will benefit.
The first thing to note is that this passage was written with resident citizens
in mind, who will soon be returning to the Republic after a temporary
sojourn abroad. However, Myburgh suggested that this passage was
equally applicable to non-resident citizens who had permanently left the
country with no fixed intention to return. According to him, the
importance of the passage lay in the ‘message it conveys to South Africans
living abroad’. According to Myburgh, O’Regan J was telling emigrants
that their continued commitment to the country and civic mindedness will
not go unrewarded and thus revealed a desire on the part of the Court to
‘foster a continued sense of belonging, and help keep alive the desire to
return’ among expatriate citizens. Macdonald similarly read the passage as
67 J Myburgh ‘A triumph of generosity over mean-spiritedness’ http://www.
politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=120816&sn=Mar
ketingweb%20detail (accessed 5 May 2009).
68 Richter (n 9 above) para 69. The passage is quoted with approval by Myburgh.