The AParty and Another v Minister for Home Affairs and Others; Moloko and Others v Minister for Home Affairs and Another

Two urgent applications for direct access to the Constitutional Court were brought approximately one month before the 2009 general elections. The AParty (a newly registered political party) and Mr. Pepperell (CCT 06/09), and 12 individual South African citizens living abroad (CCT 10/09), challenged sections of the Electoral Act 73 of 1998 that restricted voting rights of South African citizens living abroad. The challenged provisions included: (1) section 33(1)(e) which limited special votes for citizens abroad only to those temporarily outside the country for specified reasons (holiday, business, study, sports); and (2) sections 7, 8, 9, and 60 relating to voter registration, which limited registration to those ordinarily resident in South Africa. The applicants, all registered voters except two in the Moloko matter, sought direct access to the Constitutional Court due to urgency and the fact that similar issues were already before the Court in the Richter confirmatory proceedings. The Minister for Home Affairs opposed the applications, arguing the electoral scheme was constitutional. The Electoral Commission did not oppose relief regarding section 33(1)(e) but expressed concerns about practical difficulties and the impact on the election timetable of changing the registration system at such a late stage.

• Whether direct access to the Constitutional Court should be granted in relation to challenges to sections 33(1)(e), 7, 8, 9, and 60 of the Electoral Act
• Whether section 33(1)(e) of the Electoral Act, which restricts special votes for citizens abroad to those temporarily outside the country for specified purposes, violates the right to vote under section 19(3)(a) of the Constitution
• Whether sections 7, 8, 9, and 60 of the Electoral Act, which restrict voter registration to those ordinarily resident in South Africa, violate constitutional rights including the right to vote
• Whether the self-created urgency and delay by applicants affects their entitlement to relief
• The appropriate costs order in circumstances where applicants succeeded partially and brought matters at the eleventh hour

Direct access granted in relation to section 33(1)(e) challenge; section 33(1)(e) and related regulations declared unconstitutional insofar as they limited special votes to those 'temporarily' abroad for specified purposes; registered voters abroad given 15 days to notify the Chief Electoral Officer of intention to apply for special vote. Direct access refused regarding challenges to sections 7, 8, 9, 60 (registration provisions) and regulations 2, 11, and 17. Minister for Home Affairs ordered to pay half of applicants' costs in each matter, including costs of two counsel. In Moloko matter, costs limited to disbursements including counsel fees due to pro bono representation.

The binding legal principles established are: (1) Direct access to the Constitutional Court will be granted where similar issues are already before the Court in other proceedings and the Court can benefit from lower court judgments, avoiding sitting as a court of first and last instance. (2) Direct access will be refused where constitutional challenges go to the heart of the electoral scheme designed by Parliament and raise complex questions requiring full consideration first by lower courts, particularly where brought in circumstances of self-created urgency. (3) Challenges to electoral matters must be brought at the earliest opportunity; approaching courts on the eve of elections with self-created urgency weighs heavily against granting direct access or relief. (4) Section 33(1)(e) of the Electoral Act is unconstitutional insofar as it restricts special votes for citizens abroad to those 'temporarily' outside the country for specified purposes (holiday, business, study, sports), as this constitutes an unjustifiable limitation on the right to vote under section 19(3)(a) of the Constitution. (5) While citizens have the right to vote, they also have the responsibility to register as voters; failure to register without explanation may affect entitlement to relief. (6) Electoral provisions that restrict registration and voting to those ordinarily resident in South Africa raise complex questions about the fundamental nature of the district-based electoral scheme that require consideration by lower courts before this Court should rule on them.

The Court made several important non-binding observations: (1) The Court noted the importance of section 38 of the Constitution which affords broad standing to protect Bill of Rights, allowing persons to act in their own interest, on behalf of others, or in the public interest - this addresses difficulties faced by unregistered political parties and citizens abroad. (2) The Court observed that political initiatives to secure voting rights are desirable but should not be pursued up to the eve of elections, leaving insufficient time for court remedies. (3) The Court commented that government opposition to constitutional challenges must be consistent with its constitutional obligations, criticizing the Minister's opposition as being without merit. (4) The Court emphasized that nothing in its decision refusing direct access on the registration challenges should be read as prejudging the constitutionality of those provisions. (5) The Court noted that the relief sought regarding registration could have negative impact on the election timetable and raised concerns about practical difficulties including: the unknown number of potential voters (estimated up to 2 million in over 100 countries), lack of accurate records, difficulty verifying ordinary residence from abroad, and threats to the integrity of the voters' roll. (6) The Court observed that in exceptional circumstances a High Court could grant temporary relief under its just and equitable jurisdiction pending Constitutional Court confirmation. (7) The judgment contains strong comments about the responsibilities that accompany constitutional rights, particularly the duty to register as a voter for those wishing to exercise their franchise.

This case is significant for establishing important principles about direct access to the Constitutional Court, particularly in urgent electoral matters. The judgment clarifies that: (1) compelling reasons are required for direct access and the Court will not ordinarily sit as a court of first and last instance; (2) challenges to electoral systems should be brought at the earliest opportunity, not on the eve of elections, as delay may threaten the electoral process and affect relief; (3) self-created urgency will weigh against granting direct access or relief; (4) while political solutions may be pursued, litigants cannot wait until the eleventh hour to vindicate constitutional rights in court; (5) fundamental challenges to the electoral scheme designed by Parliament require careful consideration by lower courts first. The case also affirms the broad right to vote under section 19(3)(a) of South African citizens abroad, at least for registered voters, extending beyond those temporarily abroad for limited purposes. It demonstrates the Court's balancing of individual voting rights against practical electoral administration and the integrity of the electoral process. The judgment is notable for its strong criticism of litigants who delay bringing constitutional challenges until immediately before elections, emphasizing the responsibilities that accompany constitutional rights.