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166 Chapter 5
Richter case. As the matter stands, the Electoral Act accepts ordinary
residence as the key to the political participation of citizens. While the
Richter case might have unsettled the accepted link between residence and
democratic citizenship, it has certainly not broken this link.
This is unfortunately not how the expatriate voting rights lobby has
chosen to read the Richter judgment. The Centre for Constitutional Rights,
in particular, has entered into talks with the Minister of Home Affairs
about the introduction of legislative amendments that would bring the
Electoral Act ‘in line with’ the Richter judgment by allowing all nonresident
South African citizens to vote in future national and provincial
elections. 85 This campaign unfortunately continues to be based, not only
on a misreading of what the Richter case ruled, but also on the
constitutional merits of that ruling. Once the distinction between resident
and non-resident citizens that is drawn in section 33(1)(e) and the rest of
the Electoral Act is understood as constitutionally mandated by the value
of democratic accountability, it becomes possible to radicalise the idea of
resident nation state citizenship into a form of post-national and
nationalist denizenship. In the light of what was said above, if any
legislative reform to the Electoral Act is needed after the Richter judgment,
it is not to allow non-resident citizens to register and vote in the next
election, but to enable non-citizen residents to register and vote in the next
municipal elections of the cities and streets where they ordinarily reside.
85 De Havilland (n 55 above) continues to (misleadingly) claim that the Richter judgment
recognised the constitutional right of all citizens to vote, regardless of where they
ordinarily reside: ‘The Constitutional Court’s ruling in the matter of Richter v Minister for
Home Affairs was only a limited victory for those who sought the vote for South
Africans overseas. In effect, the right to vote was assured only for South Africans who
were already registered to vote - and then only in the national and not the provincial
elections. This did not mean that the Court did not accept that all South Africans living
overseas have a right to vote in all elections, but that there was simply not sufficient
time to make the necessary arrangements before the elections’ (my emphasis). The
Centre for Constitutional Rights has driven their campaign for legislative reform on the
mistaken claim that there is a constitutional obligation on the executive and Parliament
to introduce and to adopt the necessary legislative amendments to give effect to the
Richter judgment: ‘The clear requirement is that the Parliament and the executive
should adopt the legislation and regulations that will enable all South Africans overseas
to vote in future elections, well before the next election takes place.’ Unfortunately, it
would appear as if the Minister of Home Affairs is now also approaching the matter on
this basis. As De Havilland reports: ‘Last month the Ministry of Home Affairs
informed the Centre Foundation that the Department is considering legislative
amendments to bring the relevant legislation “in line with the Richter case and other
related cases heard before the ConCourt just before the elections earlier this year”’.
These amendments would be dealt with in conjunction with the Independent Electoral
Commission ‘as it is the entity that implements the Electoral Act’.