Richter v The Minister of Home Affairs

• Jurisdiction: South Africa
• Judge: Ebersohn J
• Judgment Date: 09 February 2009
• Docket Number: 4044/09
• Hearing Date: 03 February 2009
• Court: Transvaal Provincial Division
• Citation: 2009 JDR 0082 (T)

Ebersohn AJ:

[1] This is an application to declare as being unconstitutional, certain provisions of the legislation relating to elections.

[2] The personal facts relating to the applicant are not in dispute. He is an adult male citizen of the Republic of South Africa with identity number [number]. He is in possession of the bar coded identification document that entitles him to vote in the Republic of South Africa. He is temporarily residing at [address] Mitcham, Surrey, United Kingdom. He is domiciled in the Republic of South Africa with his place of abode to which he intends to return at the end of 2009 at [address], Swawelpoort, Pretoria, Gauteng.

[3] For the specific purpose of this application he reiterated that he is registered as a voter in accordance with the Electoral Act, No 73 1998 ("the Electoral Act"), in Voting District No 32951932, which is centred in Faerie Glen, Pretoria, Gauteng, and his name appears on the voters roll and he voted in the previous elections held on the 14th April 2004.

[4] The first respondent is the Minister of Home Affairs, The second respondent is the Electoral Commission and the third respondent is the Minister of Foreign Affairs. A copy of the founding papers was also served on the State President.

[5] The first respondent opposed the application, the second respondent filed a notice to the effect that it abided in the decision of the Court. The third respondent was cited nominally only and did not respond. The first respondent filed an answering affidavit. The first and second respondents applied for a postponement of the matter. The first respondent stated in this regard in an affidavit that he wished to gather factual information over a wide field to put before this Court so as to enable this Court to appreciate why there was a discrimination between certain classes of voters. In the affidavit some legal points which were not sustainable under the circumstances, namely that this case was about the interpretation of a statute only, were also raised. The respondents apparently wanted to put facts relating to expenses and how similar processes where handled by other countries where their citizens outside their respective countries could vote, before the Court The application for a postponement was

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opposed by the applicant. After hearing argument and considering the matter the application for a postponement was dismissed and the Court indicated that reasons would be furnished later.

[6] Urgency, having been disputed by the fist respondent, was then argued together with the merits and judgment was reserved and the Court indicated that judgment would be handed down on the 9th February 2009.

[7] The first respondent, despite the Court's explicit directive in that regard, failed to file heads of argument.

[8] The notice of motion reads as follows:

"1.

This application is declared to be urgent and non-compliance with the rules of court pertaining to time limits, form and service are condoned insofar as is necessary;

2.

The following parts of section 33 of the Electoral Act, No 73 of 1998, is declared to be in conflict with sections 3(2)(a), 9(1), 10 and 19(3)(a) of the Constitution of the Republic of South Africa, Act 108 of 1996 (and thus invalid):

2.1

Subsection (1)(b);

2.2

The words "for purposes of a holiday, a business trip, attendance of a tertiary institution or an educational visit or participation in an international sports event" in subsection (1)(e).

2.3

The words "temporary" and "intended" where they appear in subsection (1)(e).

3.

The conflicts mentioned in paragraph 2 above arises from the unequal treatment in respect of the allowing of application for

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special votes to various categories of citizens of the Republic of South Africa who are absent from the Republic of South Africa.

4.

The first and second respondents are ordered to rectify the aforementioned unequal treatment by extending the right to special votes to all categories of citizens absent from the Republic of South Africa.

5.

The first, second and third respondents are ordered 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.

6.

The second respondent is ordered to amend the Election Regulations, 2004, made under the power vested in it by section 100 of the Electoral Act, 75 of 1998, as follows:

6.1

By deleting Regulation 6(b) in totality;

6.2

By deleting the words:

6.2.1

"temporary"ERROR! Reference source not found.

6.2.2 for the purposes of a holiday, a business trip, attendance of a tertiary institution or an educational visit or participation in an international sports event"

6.2.3

"intended" in Regulation 6(e).

6.3

By deleting Regulation 9 in totality;

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6.4

By deleting the following words in Regulation 11:

6.4.1

"temporary"

6.4.2

"intended"

6.5

By deleting the following words in Regulation 12:

6.5.1

"temporary"

6.5.2

"for the purposes of a holiday, a business trip, attendance of a tertiary institution or an educational visit or participation in an international sports event"

6.6

By deleting the "temporary" in Regulation 13;

6.7

By correcting the forms contained in appendix 1 thereto, to bring the same in accordance with the above relief.

7.

The first respondent is ordered to pay the costs of the applicant.

8.

Further and/or alternative relief."

[9] Section 33 of the Electoral Act reads as follows:

"33.

Special votes.

(1)

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, due to that person's-

(a)

physical infirmity or disability, or pregnancy;

(b)

absence from the Republic on Government service or membership of the household of the person so being absent;

(c)

absence from that voting district while serving as an officer in the election concerned; or

(d)

being on duty as a member of the

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security services in connection with the election.

(e)

temporary absence from the Republic for purposes of a holiday, a business trip, attendance of a tertiary institution or an educational visit or participation in an international sports event, 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.

(2)

The Commission must prescribe-

(a)

the procedure for applying for special votes; and

(b)

procedures, consistent in principle with Chapter 4, for the casting and counting of special votes."

[10] Chapter 3 of the Regulations bears the heading "Special Votes" and contains regulations 6, 7, 8, 9, 10, 11 and 12.

[11] The applicant filed a supplementary affidavit , with attaché to it , a copy of the address the then Minister of Home Affairs, Dr. Mangasutho Buthelezi delivered in parliament on the 25th November 2003 at the time of the the Second Reading Debate of the Electoral Laws nSecond Amendment Bill. The respondents did not object to this. In his address the Honourable Minister is reported to have stated the following:

"Madam Speaker:

Subsequent to the passing of the Electoral Laws Amendment Act, 2003 (Act No. 34 of 2003) by Parliament, representations were made to the President and the Deputy President. Reportedly, a key promoter of such representation was our colleague Dr. C. Mulder MP who reportedly made them on behalf of South African citizens living abroad arguing that the Electoral Laws Amendment Act as it stands infringes upon their constitutional right to vote.

When I spoke to this House during my Department's budget debate, I had

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committed myself to make provision to enable South Africans abroad to vote. Ccordingly , in the Electoral Law Amendment Bill which I brought to Cabinet provision was made for all South Africans abroad to vote, irrespective of their reasons to be abroad, However, Cabinet chose not to adopt my proposal. During its parliamentary process the Electoral Law Amendment Bill was amended by the Portfolio Committee to make provisions similar to the one now contained in the Electoral Law Second Amendment Bill which is before us. However, such provisions were then dropped.

After considering representations submitted to him, the President instructed that urgent amendments be prepared to provide for the casting of votes by South African citizens who are registered on the voters' roll and are temporarily absent from the Republic during the election, elsewhere than the voting district where they reside.

I am pleased that what I had originally proposed as the responsible line function Minister has now been partially accepted and is before us for approval. I have made many other proposals within my line functions responsibilities and as the leader of a minority Party in Cabinet, which proposals have not been embrace, ranging form civic affairs matters to HIV/AIDS, crime and unemployment. Because he seems to carry more credence than I do, I should have perhaps considered to ask Dr. Mulder to champion them.

I do not believe that the Electoral Law Amendment Act is as it stands, unconstitutional, for the right to vote of citizens abroad may be limited, as it is limited in many established democracies. Hover, I felt that as a matter of policy it was essential to allow all South Africans an opportunity to participate in the electoral process. However, what in my opinion was not constitutionally problematic...