The pursuit of democracy: challenging the SA Electoral Commission

Legal Matters

The ability to exercise the right to vote is a key tenet of a democratic state. Through the ability to vote, a citizen of a country is able to express a choice as to what type of government they want to rule their country, and to decide on the nature of the leadership that their country would benefit from.

The national elections in South Africa this year are probably more interesting and more hotly contested than has been the case at any time since the first democratic elections were held 30 years ago. Since the African National Congress (ANC) dominated the political scene after 1994, generally winning national elections with a sizeable majority, voters have tended to be somewhat apathetic about the electoral process, believing that the ANC would win anyhow, whether or not they exercise their vote. This year, however, things look somewhat different: for the first time, there is a strong chance that the ANC will not win an outright majority of seats. And, with the country struggling severely with economic growth, crime and other social ills, there is perhaps greater interest in the value of one’s vote than has been the case for some time.

Eligible voters currently outside the country make up a sizeable group, and many of these people are keen to vote in the upcoming national elections. However, a challenge for thousands of these voters is finding a suitable place where they can exercise their vote. 

While a South African citizen should be able to vote at a South African embassy or at a consulate headed up by a career diplomat, the Electoral Commission has excluded Honorary Consulates from the sites where votes can be cast. This has a significant negative impact on the ability of South Africans living abroad to vote. For instance, in Australia, which has one of the largest expat South African diaspora populations in the world, there is a High Commission in Canberra, where South African voters may vote. However, the vast majority of South Africans living in Australia are in Sydney, Perth and Melbourne — and these are cities represented by Honorary Consulates for South Africa. And so the thousands of South Africans who do not reside in Canberra will not be able to cast their vote come 29 May, unless they travel to Canberra, which is a great distance away.

Recognising the value of the expat South African vote in this year’s election, the Democratic Alliance (DA) recently launched legal action to challenge the interpretation given by the Electoral Commission, appointing a legal team that includes two Jewish advocates
from Cape Town.

The argument made by the DA is that the Electoral Act directs the Electoral Commission to allow the casting of special votes, and that this process in terms of the Act allows for votes to be made at any South African embassy, High Commission, or consulate abroad. This wording does not rule out an Honorary Consulate and so, the DA argues, honorary consulates should certainly be included. The exclusion of Honorary Consulates — which are, after all, sites of official representation of the South African state — effectively means that thousands of voters become disenfranchised. And, as one of the advocates comments, “The balance to be sought should always favour enfranchisement, rather than disenfranchisement.” 

And, it would seem that enfranchisement may well be the order of the day. On 10 April, the Electoral Court upheld the argument of the DA, directing that the decision of the IEC not to allow voting at consulates led by Honorary Consuls should be overturned. This should mean that there will be many more sites at which South Africans not in the country on 29 May will be able to vote  —  although the authorities will have a tough time getting ready for this within such a short period of time.

As regards South African citizens in Israel at the time of the elections, it is unclear as to whether they will be able to vote since the embassy has been closed. The SAJBD has written to the IEC for clarity on this matter and will inform the community in due course.

• Published in the May 2024 issue – Click here to start reading.

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