The Transvaal Provincial Division of the High Court today declared invalid section 33(1)(b) and parts of section 33(1)(e) of the Electoral Act, and ordered the Electoral Commission to do all things necessary to ensure that all categories of citizens absent from the Republic of South Africa who are registered as voters will be entitled in terms of the Electoral Act, to vote by means of special votes in the forthcoming general elections.
The judgment is unfortunately not a monument to clarity and clear constitutional reasoning. Acting Judge PZ Ebersohn is clearly not a constitutional scholar and it shows. What I find surprising is that the judge declared invalid the section that allows government officials and their families who are “on Government Service” to vote if they are absent from the Republic – perhaps on the assumption that it infringed on the right to equality before the law guaranteed in section 9 of the Constitution.
I wonder whether judge Ebersohn realised that his judgment would make it more difficult for government officials and their families abroad to vote, while not at this stage assisting many South African citizens who are temporarily living abroad.
Section 33(1)(b) of the Electoral Act states that the “Commission must allow a person to apply for a special vote if that person cannot vote at a voting station in the voting district in which the person is registered as a voter,” because, amongst others, that person is abroad because he or she is “on Government Service” or is a family member of such a person. The section does not require this category of individuals to alert the IEC to his or her absence before being able to access a special vote. This section has now been declared invalid.
Section 33(1)(e) states that other categories of individuals must also be allowed to vote if he or she is temporary absent from the country “for purposes of a holiday, a business trip, attendance of a tertiary institution or an educational visit or participation in an international sports event” and “if the person notifies the Commission within 15 days after the proclamation of the date of the election, of his or her intended absence from the Republic, his or her intention to vote, and the place where he or she will cast his or her vote”. The underlined section was declared invalid.
This means the effect of the judgment is, first, to require government officials and their families to notify the Electoral Commission within 15 days after the proclamation of the election date that they will vote and where they will vote, thus potentially making it more difficult for government officials abroad to vote.
Second, it extends the right to vote to all South African citizens who are temporarily abroad and are already registered as voters. It does not make any provision for the IEC to arrange registration drives abroad or allow South African citizens to register while abroad. Neither does it allow South African citizens permanently living abroad to vote. It is unclear how many South Africans temporarily living abroad are actually registered to vote and how – if they are registered – they will now be able to arrange for special votes.
In any event the decision will have to go to the Constitutional Court for confirmation and that court will probably have to deal with several cases now being dealt with in various courts in South Africa about this issue.
It is not clear from the judgment, but it appears as if the Department of Home Affairs had difficulty justifying the almost blanket limitation on the right to vote. Although the judgment seems to confuse the reasoning applicable to the limitation clause with that applicable to section 9 of the Constitution, the heart of the matter is dealt with in paragraph 77 of the judgment where Ebersohn AJ states:
The only argument on behalf of the respondents [to justify the limitation of rights and the different treatment between government officials and ordinary citizens] can be risks to the integrity of the polling process, and a strain on financial and logistical resources available. Such argument, however, falls away when regard is had to the fact that the logistical arrangements have to be made for the classes of citizens abroad who are allowed to bring out special votes. The only issue can be financial namely the costs of transporting extra ballot papers to and from South African embassies, High Commissions and consulates which, however, would not place an undue burden on the respondents’ resources. Any risks attendant to the bringing out of special votes will be the same as those existing for the special votes which are allowed in section 33 as it presently stands.
I imagine in the Constitutional Court this issue will be the one that will have to be addressed by either side in far more detail. In the past the Constitutional Court has lambasted the Department of Home Affairs for failing to provide any evidence or factual material to justify the limitation of prisoner’s rights to vote, so we will have to see if the Department will be able to muster the requisite energy to place before the Constitutional Court some arguments about the potential cost and the actual effect on the security of the election if the right to vote were to be extended.
It is clear that a mere assertion by the Department or the Electoral Commission (as the IEC is called in the Constitution) that great cost would be incurred if this right were to be extended would not wash. Real facts and figures will have to be produced.
This does not mean legislation will have to allow every South African citizen living abroad the right to vote. There might be justifiable reasons to exclude citizens who now permanently live abroad from voting and this judgment does not address the rights of those citizens to vote.
What is clear is that the legislation now being attacked does not seem to make a logical and justifiable distinction between those who are allowed to vote and those who are not. In the absence of very strong evidence about the logistical and cost implications in extending the right to vote and clearly articulated policy considerations about which categories of South African citizens who happen to live abroad should be disenfranchised, the Constitutional Court will have some difficulty with the legislation as it stands.
Rest assured that I shall be in line to exercise my constitutional right come voting day – in New Zealand.
I have a question in regard to this issue.
The judgment holds that those voters overseas who are REGISTERED to vote may now do so. We have just had our final registration weekend in SA. How do those living abroad go about registering in their area for the right to vote and won’t this qualification on the right to vote for citizens abroad, automatically preclude them from voting in this election?
They are going to apply to have KM delay announcing the election date to extend the voter registration period I think. According to the Parly rumour mill, the 15 April was not going to be it, probably more like a date in May to buy the ANC some more time to campaign no doubt.
I support the ruling – its constitutionally correct. I think that people working abroad should be encouraged to maintain a connection to and have a say in the country of their birth. It could isnpire some to return and hell knows we need them more than ever.
Amazing isn’t it that no matter what date the President decides on, someone (political analysts, media etc) will see something into it. An early election was seen to be what the ANC wanted in order to win the election. Now an election in May will buy the ANC some more time to campaign. Can you guys make up you minds?
Should the Elections be in May what happens to parliament and government?
@ Frank
Its your right to vote, please exercise it
If South Africa is to follow the traditions of democracy why should a SA expats not have the right to vote. why should other cultures have more rights than south africans.
If your a japanese expat you can vote from abroad. whats interesting here is one can draw parallels between Japan and South Africa on this issue
Japan SCA
“But the Supreme Court ruled last September the system was unconstitutional and said modern communications systems are more than adequate to transmit such information”
British citizens who leave the United Kingdom retain the right to vote for 15 years.
We also just witnessed the the US expatriates exercising there rights which i took part in and still made me feel i had a input in my country through American Expatriates Endorse Voting Rights Bills
Austalia If you are no longer on the Roll, then you can enrol afresh from overseas, but only if it is under three years since you left Australia to live abroad.
you are a New Zealand citizen and have visited New Zealand within the last three years, or
you are a permanent resident of New Zealand and have visited New Zealand in the last 12 months can vote from overseas.
Im alittle shocked at the IEC reaction about it being a legistical nightmare whats funny here is there japanese government said the exact same thing
“The government had always said providing expats with the necessary information, including the names and policies of the individual candidates, would be difficult.”
Nonsense, in this day and age we have the communications systems to do this its called the INTERNET where an absentee ballot can be downloaded and sent or emailed back.
A few years ago I was on a tour through Europe. Most of my fellow travellers were Australian citizens. Many of them were not living in Australia at the time. The tour coincided with their national election (in fact, we would be in Rome on the day in question). Since Australian citizens are obligated to vote, they all had to report at the Autralian embassy in Rome to cast their ballot. The alternative was facing prosecution and a hefty fine. I have been reminded of this experience by South Africans’ current struggle to exercise their right to vote, and am struck by the contrast.
Thomas, I was just reporting a rumour I heard today. As for the reasons, who knows, but politics is a filthy game and the ruling party strategists will be trying to boost their parties chances when setting the date. I am sure you can argue the matter both ways – later date = more time for Cope et al too.
The voting rights case will probably lead to a further delay.
Quite frankly I cannot understand why all these parties are bringing all these applications this late in the day. Now FF wants to delay the proclamation of the date. It makes me wonder why did they not bring this application a year ago becaus the impugned provisions did not come into effect last month. Surely if there is any urgency in the matter, it’s self-created and our courts should not allow themselves to be abused by politicians who are trying to win votes by “fighting the cause of those who can’t”. I really do not see how this is different from the ANC failing to register Councillors for the by-elections in the Western Cape. Incompetence, that’s all it is!!
Election date is set for 22 April as announced by Pres. in parlement.
Mzo:
The VF+ is bringing this motion now for two reasons:
The first is for financial reasons. They’re not a big party and hiring legal eagles is expensive. They have indicated that they would’ve liked to do it earlier. They were either waiting for private funding or for saving up the funds themselves.
The second is that we’re nearing an election. They’re trying to score political points shortly before the election.
I agree with you that it should’ve been brought much earlier. I also feel that more opposition parties could’ve participated in this process. We have lots of South Africans overseas – enough so to make a serious difference to our political landscape. We can’t claim to have had free and fair elections if all South Africans who are eligible to vote (and wanted to vote) were not granted the opportunity to both register and vote – regardless of where in the world they are.
I fail to see the huge logistics nightmare. We have South African embassies all over the planet. We won’t have 2 million people pitching tents in front of a single foreign embassy. It’s a matter of linking to our current voter’s roll and adding a few new names to accommodate new registrations and checking the existing database for those already registered. Same logistics nightmare we have here, only it’s over there.
Somehow, the diplomats can keep in touch with those in South Africa. Somehow, those in government service overseas have been allowed to vote, so it’s a matter of scaling up the existing services and Bob Mugabe is your uncle. The logistics nightmare has already been solved.
The full text of the Richter judgment is available at http://www.saflii.org/za/cases/ZAGPHC/2009/21.html
for those who are interested. It does not make provision for voter registration, since the Mr Richter is already registered (par 3), but it does provide for South African citizens permanently living abroad to vote (see prayer 2.3 – the word “temporary” is to be expunged).
Well, I’ll have to get on a plane to NY to vote, since there is no SA embassy here, but damned sure I’ll be doing it. Fortunately I had registered for the previous elections I was eligible to vote in, so there is no problem there…unfortunately, this judgement may impact a few people (for eg, a person who went overseas before their first eligible voter registration period, and is now eligible to register and vote). Still though, it’s a step in the right direction…us Saffas overseas by and large still consider ourselves South Africans, and want to participate.
If it’s any consolation to those who refer to us as disloyal, unpatriotic and so forth, the people who are permanently abroad probably couldn’t be bothered to vote in the first place, and so will not skew the vote. The rest of us, who are patriotic, will have our say…woohoo!!!
What’s all this hoo-ha about “logistical nightmares”? Hasn’t the IEC heard of postal votes? They do this in other countries, such as Germany and Switzerland. All you do is request the necessary voting papers, have them mail those to you, fill them out and mail them back. All at minimum expense. What could be simpler? And I fully agree with Mzo. Couldn’t the FF+ have started their belly-aching, say, a year or so ago?
In all fairness, it shouldn’t just be up to the opposition parties to challenge this. If one were to believe the ANC and their compadres, they’re all for the Constitution (when it serves their interests I guess).
Why Leave SA & want to vote abroad?
That’s rediculous!
They shouldn’t have left the country if they are SA citizens in the first place and wanted to vote.
“Neither does it allow South African citizens permanently living abroad to vote.”
Giving this country’s history and the reasons why people left South Africa when democracy triumphed I’m more than comfortable with that.
Akanyang:
This is not about those who emigrated and no longer have South African citizenship. It’s about current South African citizens who are overseas for one reason or another. There are many South Africans who are placed overseas on contract for a few years (thus permanently). Why should they not be allowed to vote? They’re coming back with foreign currency.
Ozoneblue:
You can’t have one constitution for those living in squatter camps and another one for those who left South Africa ‘when democracy triumphed’.
Akanyang,
Voting is our constitutional right. ’nuff said.
@Akanyang Merementsi:
We have a liberal Constitution that guarantees the right to vote, AND the right to leave the Republic as fundamental rights. At present, somebody can stand as a candidate for, and be elected to public office while working overseas, but that same person can’t vote!
He, he – look at this – a picture tells a thousand words.
http://www.homecomingrevolution.co.za/hcrblog/wp-content/uploads/2009/02/0000169178.jpg
Could someone please indulge me with a reply on a related question regarding the South African citizenship of my wife. I am not nor have ever been a South African citizen.
It seems that the provisions of the South African Citizenship Act providing for loss of citizenship are in direct conflict with section 20 of the Constitution (no citizen to be deprived of citizenship) and on the face of it would be invalid.
My wife’s parents are British citizens by birth but have lived in South Africa since 1970. I understand they only obtained South African passports (and presumably citizenship) shortly before the 1994 elections. My wife was born in South Africa and presumably the relevant date for her British citizenship by descent is her birth date of 16 July 1971. My wife travelled to England regularly in her childhood to visit her grandparents. I do not know when she first obtained her South African passport or her British passport. My wife lived in England from 1995 until 2000, when we moved to Australia. While living in England and Australia, my wife has used her British passport to travel in and out of England/Australia, including for trips to South Africa (entering and leaving South Africa on her British passport). She never obtained the then relevant ‘exemption’ letter from the South African authorities allowing her to use her British passport. Her South African passport has expired.
My wife obtained Australian citizenship on 8 August 2004. Assuming that my wife’s British citizenship and use of her British passport had not affected her South African citizenship prior to the Constitution coming into force in 1997 (or earlier if the interim constitution contained a provision similar to section 20), does that mean that her acquiring Australian citizenship has not affected her South African citizenship?
The practical issue for us is the ability to obtain South African citizenship for our son born on 1 May 2006.
tadcaster:
http://www.sahc.org/au/citizenship/Dual_Citizenship.htm
Does anyone know whether the decision to strike the FF+ application off the roll is legally valid?
It was legally premature. The parties were nor served with papers in good tome to respond. FF does not have intrate knowledge that the IEC would afford to make arrangements for expatriates in the short time available and so on.
These is basically some bizarre excitement in this. I enjoy the jurisprudence though!
The striking off relates to objecting to the proclamation of date not judgment to be confirmed by the CC.
If this may help!
Tadcaster, your wife upon acquisition of her australian citizenship over an above the South African and British ones, origines a trinial citizenship.
Your spouse also committed a statutory offence by entering the country using a foreign passport when she had SA citizenship.
I suppose the trinial citizenship and entry with a foreign passport may smack of renunciation of her citizenship of South Africa.
It is only a court of law which can pronounce on whether your wofe is still a south african citizen of otherwise. As for know I for know I think she is a SA citizen with a potential of a criminal record on account of using a foreign passport when getting in and out of south africa.
Just do some reading of the new amendments to remedy the incongruence of the main act with s20 of the Constitution.
I think the requirement of an exemption and/or permission of the Minister of home affairs in no longer applicable.
The fact that her South African passport had expired when she entered SA is a convincing and reasonable explanation to avert a conviction. She must simply apply for a passport and see how the Department would handle the matter!
Todcaster, in terms of section 3 (3) of the Constitution:
National legislation must provide for the acquisition, loss and restoration of citizenship.
In order to give affect to this constitutional provision, Parliament enacted the South African Citizenship Act 88 of 1995, which is where you will find how the law provides for your specific situation, I havn’t done so myself sorry, hope that helps
Oh, I see you have read the Citizenship act, was in a hurry, then section 3(3) is not in contrast with section 20 of the constitution and the ligislation to enact those provisions, the Citizenship act must provide a process to obtain and restore your orriginal documents
frank cobain // Feb 10, 2009 at 9:22 pm
In all fairness, it shouldn’t just be up to the opposition parties to challenge this. If one were to believe the ANC and their compadres, they’re all for the Constitution (when it serves their interests I guess).
Indeed Frank. It is safe to say that the majority of people that are out of the country are white and will probably not vote for the ANC, so what possible benefit would there be for the ANC?
Heidi you are probably racist as you think ANC cannot be voted by whites. You are not even proud of the unparralled experiece of Americans voting an young leader of kenyan partenal descent or origin.
We in the ANC would like people of all races to realise that the ANC cares for all of them and seeks to deepen the creation of a non-racial society.
We have white leaders, members and supporters in the ANC. National Party was swallowed by the ANC and will intensify our presence in all communities in the country and abroad.
Heidi who I suspect is a white anti-ANC person must also reconsider and join the ANC. He or She will realise what a wonderful home it is.
Ishmael Malale // Feb 12, 2009 at 1:46 pm
dont think so with a leader like zuma, when there are more educated candidates to choice from?
Thanks to Clara, Ishmael and Friend for their comments. But in my view (as a lawyer) section 3(3) of the Constitution (national legislation must provide for the acquisition, loss and restoration of citizenship) is not inconsistent with section 20 (no citizen to be deprived of citizenship). What s 3(3) covers is voluntary loss (primarily by way of a postive act of renunciation) and restoration after such loss (which is different from deprivation, being involuntary). I appreciate only a court can finally decide this but please let me have your view
tadcaster – I completely agree with your view. The word “loss” is usually employed to indicate where someone loses something – the word “deprive”, on the other hand, is usually employed to indicate where another actor (in this case, the state) or circumstance takes something away from someone against his / her will. Such a construction is the only way in which ss 3(3) and 20 can be reconciled, and it is consistent with international law on the point. In other words, the state may not ban someone out of the territory and state, thereby taking away his/her citizenship, just because the state does not like what thaht person is doing (s 20); but, when someone voluntarily leaves the territory and state, and takes up citizenship in another state [or, where one leaves the state and joins another state in war against his / her previous state], then legislation may determine that in such cases, a citizen loses his / her citizenship (s 3(3)).
Thanks Anonymouse. I’m not sure that when someone voluntarily leaves South Africa, and takes up citizenship in another country, then legislation may determine that in such cases a citizen loses his/her citizenship. In my view that is still deprivation and could not be a justifiable limitation on the right not to be deprived. I know that under SA citizenship law a citizen who has lost citizenship under the Citizenship Act can restore that citizenship upon returning to SA as a permanent resident. I still don’t think that justifies the automatic loss upon taking up another citizenship (even though that loss can be avoided by applying to retain the SA citizenship before taking up the other citizenship). Presumably advice was taken on this issue when the Minister’s right to deprive for utilising a non SA citizenship for passport or voting purposes was removed from the Act. It would be interesting to know what that advice was
Is there any intention from the South African government too make any provisions for South Africans living abroad to be able to vote in the 2009 or any future election? It appears that is assumed that any citizen who seeks employment or seeks international experience, has abondoned the Republic. For my situation I have been living since 2005 in another African country. I feel offended if anyone says I have abondoned South Africa, as I feel loyal to South Africa. I am not surprised that last year many xenophobia attacks occured in this country. During the struggle against apartheid many people left the country. These people were not abandoning the country, but today it is considered that you are abandoning the country, despite it being a right under our current law.
And it’s not even 1st April – yet!
http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_2471323,00.html
Anonymouse, any thoughts on my last posting?
tadcaster – Nope, not really, but the ‘dual citizenship’ issue will most probably have to be determined in terms of international law principles (s 36 read with s 39(1)(b) of the Constitution) – and I think that in such circumstances it would be permissible for a state, even South Africa, to strip a citizen of his / her citizenship. What the advice was? I honestly don’t know.
Thanks Anonymouse
Akanyang and all those who comment about why we left in the first place, well we did not left, most of us followed the investors in the large industries who withdraw because of insabillity. They left to give you a change to improve yourself so they can come back and invest again but you failed. We will use our costitutional right to vote and may the right party won so we can come HOME !