As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.BACK TO TOP