On 12 March 2009, the Constitutional Court unanimously ruled that section 33(1) of the Electoral Act, 1998 and associated regulations are unconstitutional to the extent that they bar certain categories of South African citizens from casting votes abroad in national elections. The effect of the ruling is that those citizens who are registered to vote will be entitled to cast "special votes" in South African embassies and missions abroad, provided that they notify the Independent Electoral Commission of their intention to do so by 27 March 2009.

The Court emphasised that in our constitutional democracy the right to vote is an incident of citizenship, not geography. Yet, whilst this principled position gives effect and meaning to the fundamental constitutional right of every South African citizen to vote, the Court's approach does not go far enough and may, actually, disenfranchise those South Africans whom the Court sought so resolutely to enfranchise.
In its ruling, the Court has expressly declined to deal with the pivotal issues surrounding the registration of South Africans abroad. There are two central difficulties arising from this.
First, those South African citizens who had not registered before departing to other countries are precluded from voting in elections. At the hearing, several members of the Court appeared content to exclude this class of South Africans on the basis that they were "indolent" in not registering.
Second, crucially, the Court apparently overlooked the inexorable interconnection between registration and voting in South Africa's electoral régime. Of the 15 individual applicants in the three cases before the Court, 13 are registered to vote. The Justices, thus, suggested that the vast majority of the applicants would obtain effective relief through the mere extension of the "special vote".
Under the Electoral Act, however, South African citizens can only register in a voting district within the geographical bounds of South Africa where they are ordinarily resident, and must be deregistered by the Electoral Commission once they cease to be ordinarily resident in the Republic. Ordinary residence is defined as the home or place where a person "normally lives and to which that person regularly returns after any period of temporary absence". For instance, a person living and working abroad for a number of years to further their career would likely be ordinarily resident abroad, not in South Africa. The Electoral Commission, in its evidence to the Constitutional Court, stated that, as a matter of fact, it only deregisters voters who are deceased. This, however, in no way undermines the Electoral Commission's power (and, indeed, duty) to deregister and, thus, disenfranchise swathes of South African citizens in the future.
The Constitutional Court has deliberately excised the qualification that only South African citizens who were temporarily, as opposed to indefinitely, absent from the Republic would be allowed a special vote. By not removing the requirement of ordinary residence, the Court has created the anomaly that a person who is entitled to a special vote may be barred from exercising it in view of the deregistration requirements.
Importantly, neither the South African government nor the Electoral Commission proffered any principled justification for excluding from registration, or deregistering, South African citizens who were not ordinarily resident in the Republic.
The Electoral Commission's submissions relating to registration cited supposedly insurmountable logistical constraints. These difficulties seem to be far-fetched. For instance: the Electoral Commission placed reliance on the portability of the voters' roll, which weighs some 6.5 tons; and advanced the argument that the veracity of citizens' identity documents could not be confirmed overseas. The Electoral Commission asserted that staff simply could not be trained and dispatched to overseas locations (despite the Commission's admission that appropriate training takes a mere two days). It also suggested that the key to registration is the enigmatic "Zip Zip" machine, which apparently interferes with an airplane's navigational systems and thus cannot be transported overseas.
In the absence of any policy or logistical arguments that warrant exclusion, it is clear that there is no good reason why ordinary residence should be the determinant of registration, or why registration should not take place abroad. The fifteen individuals who sought vindication of their constitutional rights in these proceedings, along with the upwards of two million South Africans abroad, may have secured a hollow victory.

This article by Vlad Movshovich and Victoria Page of Webber Wentzel was first published in the Business Day on March 17, 2009.

Vlad Movshovich and Victoria Page are Senior Associates at Webber Wentzel and represented the applicants in the Constitutional Court case of KO Moloko & others v Minister of Home Affairs & another CCT10/09.