On Friday 23 January 2009, the Democratic Alliance (DA) filed papers in the Cape Town High Court to seek to have section 33 (1) (e) of the Electoral Act declared unconstitutional.

The right to vote is a fundamental right. The denial of the right to vote to the vast majority of South Africans was central to the struggle against apartheid - a struggle in which thousands of South Africans lost their lives. Because of the importance of the right to vote, this right is guaranteed to all adult citizens in the Bill of Rights in the Constitution.

The Electoral Act regulates the manner in which the right to vote is exercised. It determines that citizens must register to vote in the district in which they are ordinarily resident, and to cast their votes there. However, the Electoral Act also allows some citizens who are registered as voters and who are temporarily absent from their place of ordinary residence to vote. Section 33 (1) makes provision for special votes, and allows persons to apply for special votes under certain circumstances. One of these circumstances is if a voter is temporarily absent from South Africa. However, this entitlement is confined, in section 33 (1) (e), only to people who are:

• On holiday
• On a business trip
• Attending a "tertiary institution" or "an educational visit"
• Participating in "an international sports event".

Except for South Africans serving in diplomatic missions abroad, these are the only permissible grounds for applying for a special vote if one is outside the country. The restrictions give rise to all sorts of anomalies and unintended consequences, which are clearly unconstitutional.

For example, if you are playing in Australia for the Springbok Rugby team you can vote, because this is an "international sporting event", but if you are playing in Australia for the Stormers you can't vote, because this is only a Super 14 event. Similarly, if you go to Ghana on a six week business trip you can vote, but if you are there on a six week contract, you can't. If you go to Zimbabwe to bury your father, you don't qualify for a special vote, but if you're there on holiday you do qualify.

The distinctions in Section 33 (1) (e) deny the vote to South Africans who are temporarily working abroad, but who intend to return. It discriminates unreasonably between various classes of South Africans who are temporarily outside the country, and denies large numbers of South Africans their constitutional right to vote. We believe that this is wrong.

We initially took this matter up with the Electoral Commission and requested it to make it possible for such South Africans to vote. The Chairperson has subsequently made draft guidelines available to us which make it clear that these unreasonable distinctions will remain. Accordingly, we are now approaching the Court to have them declared unconstitutional.

We are joined in this application by Mr Roy Tipper, a constituent of mine, who happens to be an English teacher in South Korea. He wishes to vote, but has been advised by the IEC that he does not qualify for a special vote because he is working on a contract. He intends to return to South Africa, and in that sense is temporarily absent from South Africa.

Whatever the outcome of the proceedings in the Cape High Court, which we expect to take place on or around 10 March, we anticipate the matter being referred to the Constitutional Court.  

Statement issued by James Selfe, MP, Democratic Alliance federal executive chairperson, January 26 2009