Richter v Minister for Home Affairs and Others

Mr Willem Richter, a South African citizen and registered voter, was working as a teacher in the United Kingdom and intended to return to South Africa at the end of 2009. He would be out of South Africa on polling day (22 April 2009) and wished to vote in the elections. Section 33 of the Electoral Act 73 of 1998 restricted the classes of absent voters who could apply for special votes to specific categories: those absent on government service, those physically infirm, election officers on duty, members of security services on duty, and those temporarily absent for specific purposes (holiday, business trip, attending tertiary institution, educational visit, or participating in international sports events). Mr Richter, as a teacher working abroad on contract, did not fall within these categories. He launched applications in both the High Court and the Constitutional Court challenging the constitutionality of these restrictions. The Democratic Alliance and Mr Tipper launched similar proceedings in the Cape High Court. The Pretoria High Court declared sections 33(1)(b) and 33(1)(e) and certain regulations to be inconsistent with the Constitution and referred the matter to the Constitutional Court for confirmation.

• Whether section 33(1)(e) of the Electoral Act 73 of 1998, which restricts the classes of voters who may apply for special votes due to absence from the Republic on polling day, is inconsistent with the constitutional right to vote in section 19 of the Constitution
• Whether the limitation of the right to vote occasioned by section 33(1)(e) can be justified under section 36 of the Constitution
• Whether the 15-day time limit in section 33(1)(e) for notifying the Chief Electoral Officer of intention to apply for a special vote is constitutional
• Whether regulation 12(4), which permits voters afforded a special vote under section 33(1)(e) to vote only in national and not provincial elections, is constitutional
• What remedy should be ordered, including whether relief granted by the High Court should be confirmed

The Court confirmed the High Court's declaration of invalidity in part. The words "temporary" and "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 section 33(1)(e) of the Electoral Act and in regulations 6(e), 11, 12 and 13 of the Election Regulations were declared inconsistent with the Constitution and invalid. The Court declared that any registered voter qualifying for a special vote under the amended section 33(1)(e) could notify the Chief Electoral Officer within 15 days of the judgment of their intention to apply for a special vote. The Minister for Home Affairs was ordered to pay the costs of the applicant, the Democratic Alliance, Mr Tipper and the Inkatha Freedom Party, including costs of two counsel. The application for direct access (CCT 03/09) was dismissed with no order as to costs. The High Court's declaration of invalidity regarding section 33(1)(b) was not confirmed, and the mandatory relief ordered by the High Court was not confirmed.

The binding legal principles established are: (1) Section 33(1)(e) of the Electoral Act 73 of 1998, insofar as it restricts the classes of voters who may apply for special votes due to absence from the Republic on polling day to specific categories, constitutes an unjustifiable limitation of the right to vote in section 19(3)(a) of the Constitution. (2) The test for determining whether an electoral provision infringes section 19 is whether the consequence of the provision is such that, were a voter to take reasonable steps to seek to exercise their right to vote, the provision would prevent the voter from doing so. (3) Requiring a registered voter who is abroad on polling day to travel thousands of kilometers internationally to return to South Africa to vote does not constitute a reasonable compliance burden. (4) A 15-day notice period for voters to notify the Chief Electoral Officer of their intention to apply for a special vote is reasonable and does not infringe section 19, as it enables necessary logistical arrangements for the conduct of elections. (5) The right to vote imposes positive obligations on the state to take steps to ensure the right can be exercised, not merely to refrain from interference. (6) Electoral systems should be designed to foster enfranchisement wherever possible, while also ensuring elections are free, fair, credible and accurate.

O'Regan J made several important non-binding observations: (1) The vote in South Africa has both symbolic value (as a badge of citizenship and dignity) and deep democratic value (strengthening democracy through civic participation). (2) Each vote strengthens and invigorates democracy, and the moment of voting reminds both electors and the elected of their civic responsibilities. (3) In the global economy, South African citizens working and studying abroad gain experience that enriches society when they return, and their participation in elections from abroad expresses continued commitment to the country. (4) Where a litigant challenges the constitutionality of an Act of Parliament, the responsible Minister should be given a fair opportunity to respond, flowing from fairness principles and respect for other branches of government. (5) A person who fears their rights are threatened may seek appropriate relief under section 38 and does not have to wait until the infringement occurs. (6) Laws regulating fundamental rights should be expressed clearly enough to enable citizens to determine their rights. (7) The question whether voters granted special votes should be permitted to vote provincially as well as nationally raises complex constitutional issues that were not appropriate for urgent determination close to elections. (8) Many other open and democratic societies provide facilities for citizens to vote while abroad.

This case affirms the fundamental importance of the right to vote in South African constitutional democracy. The judgment reinforces that the vote is "a badge of dignity and personhood" and that "everybody counts." The Court emphasized that the electoral system should foster enfranchisement and that restrictions on voting must be carefully scrutinized and justified. The case establishes that requiring citizens to travel internationally to exercise their right to vote is an unreasonable burden. It also clarifies the test for determining whether electoral provisions infringe section 19: whether the provision prevents a voter from voting despite the voter taking reasonable steps to do so. The judgment recognizes the modern reality of a global economy where South African citizens work and study abroad, and affirms their right to participate in democratic elections from abroad. The case demonstrates the Court's willingness to intervene urgently to protect electoral rights even close to an election date, while remaining sensitive to practical electoral administration constraints.