An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
What is going on at the Electoral Commission (as the IEC is called in the Consgitution)? They will spend almost R1 billion this year to deliver a free and fair election to all South Africans. One would think with this money they could pay someone to design the necessary forms to comply with the law and the decisions of the Constitutional Court – even on short notice.
However, if one goes to the IEC website and downloads the form that has to be filled in by all voters who wish to cast a special vote because they will be out of the country on election day, one discovers that the IEC has not changed this form to comply with the recent Constitutional Court judgment allowing all registered voters abroad to cast their ballot.
The form requires one to state why one will be temporary absent from the Republic on voting day. It also requires one to state that one is ordinarily resident in the Republic and to provide ones permanent address in the country. The form therefore creates the impression that only South Africans who are temporarily outside the country will be allowed to cast a special vote.
But the Constitutional Court clearly ruled last week that the requirement that one could only vote abroad if one was absent from the country temporarily was unconstitutional. That is why it ordered that the word “temporary” in section 33(1)(e) of the Electoral Act and in Regulations 6(e), 11, 12 and 13 be deleted.
This ruling clearly envisages that the IEC would produce a new form to accommodate these changes to the law. I imagine that many South Africans who live abroad who had not read the Constitutional Court judgment would look at this form and will decide that they are not eligible to vote because they are not out of the country temporarily and do not have a permanent address in South Africa.
The form will therefore have a chilling effect on the right to vote as it might discourage many people from applying for a special vote. The IEC may therefore very well be in contempt of court by using this old form and by not taking the trouble to design a new form to accommodate the Constitutional Court ruling.
There are at least three possible reasons for this oversight. Maybe the relevant IEC officials are incompetent or stupid and do not realise that the Constitutional Court judgment also allows South Africans who are not abroad temporarily to vote. Given the salaries paid to top IEC officials this would be troubling. As would the second reason, namely that the relevant officials know that the form is not complying with the Constitutional Court ruling but was too lazy to change it. This second explanation would also demonstrate a contempt for the Constitutional Court that is breathtaking.
But maybe the relevant officials know exactly what they are doing and left the form unchanged because they want to circumvent the decision of the Constitutional Court and want to discourage South Africans abroad from voting. I would not have given this theory any credence but for the fact that IEC chairperson Brigalia Bam told Helen Zille: ¨Why should South Africans living abroad have a right to vote because they ran away and bitch about the crime in the country?¨
We therefore know that the chairperson of the IEC does not agree with the ruling of the Constitutional Court. In the light of this, it is entirely reasonable to ask whether the IEC – under instructions of its chairperson – is defying the Constitutional Court judgment and is therefore in contempt of court.
The IEC has a legal duty to immediately change this form to comply with the decision of the Constitutional Court. If they fail to do this thousands of potential voters might well be disenfranchised. This is a no-brainer. If they do not agree to change the form forthwith surely it will be reasonable to deduce that the IEC is intentionally defying the Constitutional Court and is trying to disenfranchise some voters because it has made scurrilous generalisations about those voters and do not like them.
The ball is in the IEC’s court.BACK TO TOP