Parties to expats action agree - law is unconstitutional

The parties to the action represented Willem Richter, a Pretoria teacher living overseas; the Freedom Front Plus; a group of 12 South Africans working abroad; the IFP; the DA, who based its case on Roy Tipper, a contract worker outside SA; Afriforum; the Home Affairs Department; and the Independent Electoral Commission (IEC). The case of the main protagonist, FF Plus member Richter, was that sections 33(1)(b) and (e) of the Electoral Act were unconstitutional. Section 33(1) provides for 'special votes' for certain groups of South Africans living abroad, like government employees. But others were excluded by the section on an arbitrary basis, Richter said. Judgment was reserved.

The Home Affairs Ministry, which had originally defended section 3, yesterday conceded that Richter's case was fair, according to a Business Day report. In the end, says the report, debate on what Richter sought came down to practicalities. And two parties to the action, the A Party and Kwame Moloko, went a step further than Richter, asking the court to also declare sections 7 and 8 of the Electoral Act as unconstitutional because they did not allow South Africans living abroad, who had not registered, to register as well as to vote. Moloko's argument was that without the right to register, the right to vote was something that 'hangs in the air'. The report quotes Deputy Chief Justice Dikgang Moseneke as saying: 'You are inviting us to rewrite the statute quite extensively. What about the separation of powers? If the application was brought in time, all of this rewriting would have been unnecessary. We could have simply declared the (sections) unconstitutional and given Parliament the time to do what it is constitutionally mandated to do.' Full Business Day report See also a Mail & Guardian Online report

It seems certain that registered voters living or working abroad will be allowed to vote, suggests a Cape Times report. It notes Patric Mtshaulana SC, representing Home Affairs Minister Nosiviwe Mapisa-Nqakula, conceded that there were no insurmountable practical problems about allowing all overseas registered voters to apply for a special vote. However, on the broader issue of all SA citizens abroad being allowed to register and vote, Mtshaulana argued that this should be left to Parliament. He also argued that the nature of SA's electoral system, as determined by the Electoral Act, was based on the fact that South Africans should vote at voting stations in the districts and provinces where they were registered. According to the report, he also said people inside the country were not allowed to vote anywhere else but in the voting district where they were registered, and to treat people overseas differently would be unfair. Full Cape Times report (subscription needed)

The core argument was presented by attorney Quintus Pelser (for Richter), who said the Electoral Act's definition of who can and cannot vote while overseas was unconstitutional. Section 33B of the Act allowed government employees overseas and their households to vote, thus treating people working overseas in the private sector differently, Pelser argued. That section would also allow a South African working in the government employee's household to vote, but not the husband of the employee should he travel to another country during the election. According to a report on the IoL site, Pelser suggested voting stations for government employees should be made available to private citizens, too, and the IEC should establish from the approximately 124 government missions overseas where it would be possible to vote. Full report on the IoL site Act

The case around voting practicalities was presented by the IEC. It said that if the court ruled for another period to apply for a special vote, it should not be done later than 31 March to be able to prepare on time for the 22 April election. The 15-day period that people overseas had to declare their intention to vote once the election date had been proclaimed, had already passed. 'It gets more complicated once you get closer to the date of the election,' said IEC counsel Ishmael Semenya. A report on the News24 site says, the court would also have to give the IEC enough time to inform voters of this option, and adapt their Web site so that potential voters could download a form and fax it in. Semenya said the IEC's obligation was to enfranchise people. They also had to bear in the mind the logistics of ensuring a fair election and train extra people. Full report on the News24 site See also a Beeld report

The court was likely to strike down the offending section of the Act, according to a law academic in a report in The Citizen. 'Given SA's liberal Constitution, the court will rule in favour of the right to vote,' Wits University law lecturer Kevin Malunga said. 'This is not a complicated case. The stakes are not high,' Malunga told the paper. He said overseas votes would not benefit opposition votes that much. Full report in The Citizen

Meanwhile, COPE has warned it may take legal action to stop the elections if expats are prevented from voting by government's inability to process their votes. A Daily Dispatch report says this emerged in an interview given to SATimesonline.com in London by COPE's president Mosiuoa Lekota. The report says Lekota suggested they could join any legal action taken by the FF Plus if the government ignores a ruling to allow expatriates to vote. Lekota said he was confident that Constitutional Court would give South Africans living abroad the right to vote. In anticipation of this, he said COPE would be prepared to take the IEC or government to court if the state tried to argue it could not cater for the expatriate voters. Full Daily Dispatch report