Constitutional Court judges worked late into Wednesday night in a day of intense argument by eight lawyers fighting over whether all South Africans living abroad should be allowed to vote in the April elections.
They represented Willem Richter, a Pretoria teacher living overseas; the Freedom Front Plus, a group of 12 South Africans working abroad, the Inkatha Freedom Party; the Democratic Alliance who based their case on Roy Tipper, a contract worker outside South Africa; Afriforum, the Home Affairs Department and the Independent Electoral Commission.
The judges, who ruled last year on prisoners’ voting rights said it was better to enfranchise than disenfranchise people, asked for practical suggestions on how these South Africans could be accommodated.
The Independent Electoral Commission (IEC) said that if the court ruled for another period to apply for a special vote, it should not be done later than March 31 to be able to prepare on time for the April 22 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.
The court would also have to give the IEC enough time to inform voters of this option, and adapt their website 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.
The commission’s arrangements regarding election preparations were based on voter’s roll predictions of how many ballot papers they must print and how many people would arrive at the approximately 20 000 voting stations and the 104 South African missions abroad.
At the moment they didn’t know how many people overseas, who were registered to vote, intended voting outside their registration district.
Only once they knew this could they decide on how to proceed.
The hearing follows a Pretoria High Court judgement that certain provisions of the Electoral Act are unconstitutional, because every citizen had the right to vote.
The provisions in question only allowed the overseas vote to government officials, sporting teams competing internationally and people on business trips or holidays.
But, said Semenya, it would be very difficult to manage votes for provincial representation too, which was also a request to the court. The Electoral Act only allowed people abroad to vote for national representation.
Each ballot for a provincial vote, cast away from the station a person registered at, had to be taken to the relevant province to be counted, creating a logistical problem and possibly affecting the fairness of the vote.
Jeremy Gauntlett, counsel for 12 South Africans working abroad, suggested Gallagher Estate, between Johannesburg and Pretoria, as a central point to work with the provincial votes.
The Home Affairs Department said it could probably accommodate some of the group of 12 who had registered to vote. It argued in court papers that many of the 12 fell into the business trip or holiday categories.
It also did not think allowing a provincial vote would work.
Lawyer for home affairs Patric Mtshaulana also said there was a danger of vote rigging if they allowed for so many votes to be couriered.
Other submissions included that the right to vote while abroad also be extended to the right to register to vote while abroad.
The judges also heard several complaints about the application being made so close to the election.
Judgement was reserved. — Sapa