Author: Gary Moore

Date: 1 May 2019

The Constitution[1] in its founding provisions[2] declares that South Africa is founded on values which include universal adult suffrage and a national common voters’ roll,[3] that there is a common South African citizenship,[4] and that all citizens are equally entitled to the rights, privileges and benefits of citizenship.[5]

The Bill of Rights[6] provides that every citizen has the right to free and fair[7] elections[8] and every adult citizen has the right to vote.[9]

The International Covenant on Civil and Political Rights, 1966 states that every citizen shall have the right and opportunity, without distinction or unreasonable restrictions, to vote at genuine periodic elections which shall be by universal and equal suffrage.[10]

The Constitution stipulates that, when interpreting legislation, courts must prefer any reasonable interpretation that is consistent with international law.[11]

The Electoral Act, 1998[12] states that it is an Act to regulate elections,[13] and must be interpreted and applied to give effect to the declarations and guarantees[14] in the Constitution[15] and be administered by the Electoral Commission.[16]

The Electoral Commission Act, 1998[17] states that the Electoral Commission’s objects are to strengthen constitutional democracy and promote democratic electoral processes.[18]

The Constitution’s chapter about state institutions supporting democracy[19] stipulates that the Electoral Commission must manage elections[20] and ensure they are free and fair,[21] and that the Commission is independent and subject only to the Constitution and the law and must be impartial and exercise its powers[22] without fear, favour or prejudice.[23] Other state organs must[24] assist[25] the Commission[26] to ensure its independence and impartiality.[27]

The Constitutional Court has held, regarding prisoners’ right to vote,:[28]

The right to vote, by its nature, imposes positive obligations on legislature and executive.

Universal adult suffrage on a common voters’ roll is one of the foundational values of the entire constitutional order. It says that everybody counts, and declares that, whoever we are, we all belong to the same democratic nation.

Rights cannot be limited without justification, and legislation dealing with the franchise has to be interpreted in favour of enfranchisement rather than disfranchisement.

The Constitution confers on every adult citizen in unqualified terms the right to vote in elections for every legislative body.

Parliament has not passed any law limiting that right. It follows that prisoners retain the right to vote. It is not necessary to determine whether or not Parliament could have disqualified all or any prisoners. It had not done so.

The Court cited with approval an observation in the Supreme Court of Canada:[29]

[T]he right to vote…is so fundamental that a broad and liberal interpretation must be given to it.

Every reasonable effort should be made to enfranchise citizens. Conversely, every care should be taken to guard against disenfranchisement.

The Constitutional Court has also held:[30]

Unlike many other civil and political guarantees, […] the right to vote imposes an obligation upon the state not merely to refrain from interfering with the exercise of the right, but to take positive steps to ensure that it can be exercised. […]

In designing and establishing an electoral system, one of the crucial considerations is the need to foster enfranchisement. The electoral system should recognise […] that wherever possible the participation of citizens should be encouraged.

The Electoral Commission Act states that the Commission’s functions are[31] to—

Manage any election;

ensure that any election is free and fair;

promote conditions conducive to free and fair elections;[32]

compile and maintain voters’ rolls by means of a system of registering of eligible voters by utilising available data and information furnished by voters as prescribed;[33]

promote cooperation with and between persons, institutions, governments and administrations for the achievement of its objects;[34] and

appoint appropriate public administrations in any sphere of government to conduct elections when necessary.[35]

The Electoral Commission Act stipulates that the Commission must,[36] for purposes of achieving its objects and performing its functions, acquire the necessary staff by employment, secondment, appointment on contract or otherwise.[37] The Commission must appoint a suitably qualified and experienced person as chief electoral officer,[38] who must[39] appoint such officers and employees of the Commission as he may consider necessary to enable the Commission to exercise its powers and perform its duties and functions effectively.[40])

(1) VOTERS ABROAD HAD TO PRODUCE VALID PASSPORT. The Electoral Act states that the chief electoral officer must compile and maintain a national common voters’ roll.[41] Any South African citizen in possession of an identity document may apply for registration as a voter.[42]

But, where a citizen is ordinarily resident outside the Republic, she must also produce a valid South African passport, states the Act.[43]

This requirement, that a citizen resident outside the Republic must also produce a valid passport, is not warranted:

An identity document suffices to show that the holder is a South African citizen. Requiring her to produce a passport, which must be valid, is unduly onerous and not relevant.

Requiring a citizen resident outside the Republic to produce a valid passport violates the principles of the Rule of Law that the laws of the land should apply equally to all;[44] that laws should afford adequate protection of fundamental human rights; and that the state should comply with its obligations in international law.[45]

(2) VOTERS ABROAD HAD TO VOTE ON DIFFERENT DATE. The Constitution stipulates that the National Assembly is elected for a term of five years.[46] When that term expires, the President by proclamation must call and set dates for an election.[47]

The Electoral Act states that, when the President calls the election, his proclamation must set a “single day and date” for voting.[48]

The President duly issued a proclamation in February 2019 calling an election of the National Assembly and setting “8 May” 2019 as the date for voting.[49]

The Act states that the Electoral Commission must,[50] for each election, compile an election timetable[51] substantially i.a.w. a schedule to the Act,[52] and publish it in the Gazette.[53]

Neither the election timetable in that schedule to the Act, nor any provision of the Act, authorises the Commission to set a date for voting abroad that differs from the “single day and date” for voting that was set in the President’s proclamation (namely “8 May”).

Nevertheless, the Commission published an election timetable “to be held on 8 May” which purported to set “27 April” as the date for[54] casting special votes at foreign missions.[55] The Commission and the Dept of International Relations then made known that voting by South Africans abroad would indeed take place on 27 April.[56]

Setting a different day for voting abroad without authority violates the aspect of the principle of legality that the exercise of official power must be sourced in law.[57]

It also violates the principle of the Rule of Law that public officers should exercise the powers conferred on them without exceeding the limits of such powers.[58]

(3) VOTERS ABROAD COULD NOT VOTE AT HONORARY CONSULATES. The Electoral Act states[59] that the Commission must, in an election for the National Assembly, allow a person—

who is outside the Republic to apply for and cast a special vote, if that person’s name appears on the segment of the voters’ roll for persons who are in the Republic, and if that person notifies the Commission[60] of her intention to vote outside the Republic, and the location of the South African “embassy, high commission or consulate” where she will cast her vote;[61]

to apply for and cast a special vote, if that person’s name appears on the segment of the voters’ roll for persons ordinarily resident at a place outside the Republic, and if that person notifies the Commission[62] of her intention to vote outside the Republic, and the location of the South African “embassy, high commission or consulate” where she will cast her vote.[63]

The Regulations under the Electoral Act stipulate that a person who has thus notified the Commission of her intention to vote outside the Republic, and who wants to vote outside the Republic,[64] must also notify the Commission of her intended absence from the Republic on voting day.[65] Such a person can vote at any South African “embassy, high commission or consulate” abroad.[66]

The Regulations state that the head of each embassy, high commission, or consulate abroad must[67] designate[68] an employee to be the special voting officer of the embassy, high commission or consulate concerned.[69] The chief electoral officer must provide the special voting officer of the embassy, high commission or consulate abroad with a list of voters whose applications to cast a special vote at “that mission” have been approved.[70]

In Australia, South Africa has[71] a High Commission in Canberra.[72]

There are South African honorary consulates in Perth[73] and Melbourne.[74] (A leader of a South African political party’s overseas supporter network estimates that the population of South Africans exceeds 40,000 in Perth and 25,000 in Melbourne.[75])

However, the Electoral Commission[76] and Dept of International Relations[77] asserted that in the 2019 election it was “not possible” to vote at honorary consuls’ offices.

Thus, South Africans in Australia were restricted to casting their votes at the High Commission in Canberra[78] (about 3,000 km by air from Perth, and 450 km from Melbourne).

This meant that voting was permitted at consular posts headed by career consuls, but not at consulates headed by honorary consuls.

However, the Electoral Act and its Regulations do not distinguish between consulates headed by career consuls and consulates headed by honorary consuls.

Moreover, the Vienna Convention on Consular Relations, 1963[79] does not distinguish between consular functions which may only be carried out at consular posts headed by career consuls, and not at consular posts headed by honorary consuls.

The Convention merely states that consular posts exercise consular functions,[80] which consist in:[81] Helping and assisting nationals[82] of the sending State, acting as notary and civil registrar and in similar capacities, performing certain functions of an administrative nature,[83] and performing any other functions entrusted to a consular post by the sending State.[84]

(The Convention sets out which privileges and immunities apply to consulates headed by career consuls and to career consuls,[85] and which to consulates headed by honorary consuls[86] and to honorary consuls.[87]) South Africa is a party to the Convention.[88]

(4) MANY CITIES WITH HIGH SOUTH AFRICAN POPULATIONS HAVE NO SOUTH AFRICAN REPRESENTATIVE OFFICE AT ALL. Locating polling stations only where embassies or consulates are available presents obstacles to voting for some external electors.[89]

In Australia, South Africa has no representative offices in Brisbane[90] (about 1,200 km from Canberra by air) or Sydney[91] (about 300 km from Canberra by road). (The South African political party’s overseas supporter network estimates that the population of South Africans in Brisbane and Sydney exceeds 40,000 each.[92])

The Constitutional Court has ruled that Parliament must ensure that people who are eligible to vote are able to do so if they want to vote, and if they take reasonable steps in pursuit of the right to vote. It is impermissible if people who wish to vote and who take reasonable steps in pursuit of the right, are unable to do so.[93]

The Commission did not set up temporary voting stations in Brisbane and Sydney.

(In contrast, after Hurricane Harvey affected Texas in August 2017, the Australian Embassy in Washington DC despatched two consular officers to set up a temporary office in Dallas to provide emergency consular assistance to displaced Australians.[94])

(5) VOTERS ABROAD COULD NOT VOTE BY SECRET BALLOT. The Bill of Rights[95] provides that every adult citizen has the right to vote[96] in secret.[97]

The International Covenant on Civil and Political Rights, 1966 states that every citizen shall have the right and opportunity, without distinction, to vote at elections which shall be held by secret ballot, guaranteeing the free expression of the will of the electors.[98]

The obligation to guarantee the secrecy of the ballot prohibits connecting the identity of voters to their electoral choice before, during or after their ballot is cast.[99]

However, the Election Regulations under the Electoral Act state that a voter abroad must, after mark the ballot paper in secret, place and seal it in an unmarked envelope[100] which in turn is placed and sealed in “another envelope which is marked on the outside with the [voter’s] name [and] identity number”.[101]

(The special voting officer must, as soon as the last applicant has voted, package and securely seal all the marked envelopes together with a record of all persons who have cast votes at the mission[102] concerned, and send the package[103] to the Chief Electoral Officer.[104])

That procedure contrasts with the Act’s procedure for voting in the Republic:

(There, when a voter produces an identity document to the presiding officer or a voting officer, the officer must examine the identity document and, if satisfied that[105] the voter is the person described in it, “mark” the back of a ballot paper “for that election” (undoubtedly with an impersonal official mark[106]), and hand it to the voter.

(The voter must then enter an empty voting compartment, mark the ballot paper in a way that indicates the registered party or candidate the voter wishes to vote for, fold the ballot paper to conceal the voter’s vote, take the ballot paper to a ballot box for the election, show the ballot paper to the presiding officer or a voting officer in a way that that officer can see the “mark” on its back, and place it in the ballot box.[107])

The procedure prescribed by the Regulations for voting abroad (that a voter must, after marking the ballot paper in secret and placing it in an unmarked envelope, then place it in another envelope marked on the outside with the voter’s name and identity number) violates the principles of the Rule of Law that the laws of the land should apply equally to all;[108] that laws should afford adequate protection of fundamental human rights; and that the state should comply with its obligations in international law:[109]

In particular, electoral laws should apply to voters in the Republic or abroad in equal manner and protect the fundamental human right of voters abroad to vote in secret.

The Electoral Commission should not have prescribed a procedure for voting abroad that links each voter’s ballot paper after she has voted to her name and identity number.

 

[1] Constitution of the Republic of South Africa, 1996.

[2] Constitution, Chap 1 (Founding provisions) ss 1–6 (Republic, supremacy of Constitution, citizenship, national anthem, national flag, languages).

[3] Constitution s 1(d).

[4] Constitution s 3(1).

[5] Constitution s 3(2)(a).

[6] Constitution, Chap 2 (Bill of rights) ss 7–39.

A right in the Bill of Rights may be limited only i.t.o. law of general application and to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose. Constitution s 36(1)(a)–(e).

[7] And regular.

[8] For any legislative body established in terms of the Constitution.

[9] In elections for any legislative body established in terms of the Constitution. Constitution s 19(3)(a).

[10] International Covenant on Civil and Political Rights, New York, 1966, art 25 (a) and (b) read with art 2(1).

[11] Over any alternative interpretation inconsistent with international law Constitution, Chapter 14 (general provisions) s 233 (application of international law).

This can be said to have codified the prima facie presumption that Parliament does not intend to act in breach of international law. See Salomon v Commissioners of Customs and Excise [1966] 3 All ER 871 (CA) 875; Binga v Cabinet for South West Africa and others 1988 (3) SA 155 (A) at 184I-185C; AZAPO and others v Truth & Reconciliation Commission and others [1996] 3 All SA 15 (C) at 26.

International law comprises customary international law, international agreements, and decisions of international tribunals dealing therewith. Reports of specialised international agencies may in appropriate cases provide guidance. S v Makwanyane and ano 1995 (6) BCLR 665 (CC) par [35].

[12] Electoral Act 73 of 1998.

(The Act has been amended by the Local Government: Municipal Electoral Act 27 of 2000; Electoral Laws Amendment Act 34 of 2003; Electoral Laws Second Amendment Act 40 of 2003; General Laws (Loss of Membership of National Assembly, Provincial Legislature, or Municipal Council) Amendment Act 55 of 2008; Electoral Amendment Act 18 of 2013; and Electoral Laws Amendment Act 1 of 2019.)

[13] Of the National Assembly and provincial legislatures. Electoral Act, Long title and s 3(1).

The Act also applies to elections of municipal councils, to the extent stated in the statute governing municipal elections. Electoral Act s 3(2) read with Local Government: Municipal Electoral Act 27 of 2000.

[14] And responsibilities.

[15] Electoral Act s 2(a).

[16] Electoral Act s 4.

[17] Electoral Commission Act 51 of 1996.

[18] Electoral Commission Act s 4.

[19] Constitution, Chapter 9 (State institutions supporting constitutional democracy) ss 181–194.

[20] Of national, provincial and municipal legislative bodies, i.a.w. national legislation.

[21] Constitution s 190(1)(a) and (b).

[22] And perform its functions.

[23] Constitution s 181(2) read with s 181(1)(f).

The same applies to the other State institutions supporting constitutional democracy, viz. the Public Protector; the South African Human Rights Commission; the Commission for Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Commission for Gender Equality; and the Auditor-General. Constitution s 181(2) read with s 181(1)(a)–(e).

[24] Through legislative and other measures.

[25] And protect.

[26] And those other State institutions supporting constitutional democracy.

[27] And dignity and effectiveness. Constitution s 181(3).

[28] August and ano v Electoral Commission and others 1999 (4) BCLR 363 (CC) pars [16], 17], [20]–[23] per Sachs J (Chaskalson P, Langa DP, Ackermann, Goldstone, Madala, Mokgoro, O’Regan, Yacoob JJ concurring).

[29] Haig v Canada; Haig v Canada (Chief Electoral Officer) [1993] 2 SCR 995 (SCC) 613 per Cory J.

[30] Richter v Minister for Home Affairs and others 2009 (5) BCLR 448 (CC) pars [54]–[55] per O’Regan J (Langa CJ, Moseneke DCJ, Cameron, Mokgoro, Ngcobo, Nkabinde, Sachs, Skweyiya, Yacoob JJ concurring).

See also The AParty and ano v Minister for Home Affairs and others; Moloko and others v Minister for Home Affairs and ano 2009 (6) BCLR 611 (CC).

[31] Inter alia.

[32] Electoral Commission Act s 5(1)(a)–(c).

[33] Electoral Commission Act s 5(1)(e).

[34] Electoral Commission Act s 5(1)(l).

[35] Electoral Commission Act s 5(1)(p).

[36] Inter alia.

[37] Electoral Commission Act s 5(2)(a).

[38] Electoral Commission Act s 12(1).

[39] In consultation with the Commission.

[40] Electoral Commission Act s 12(4).

[41] Electoral Act s 5.

[42] Electoral Act s 6(1).

The chief electoral officer, if satisfied that a person’s application for registration complies with the Act, and that the person is a South African citizen and is at least 18 years of age, must register that person as a voter by making the requisite entries in the voters’ roll. Electoral Act s 8(1).

[43] Electoral Act s 6(1) proviso.

Where that person is ordinarily resident outside the Republic, her name must be entered in a segment of the voters’ roll created for that purpose. Electoral Act s 8(3) proviso.

[44] Save to the extent that objective differences justify differentiation.

[45] Governing the conduct of nations, and whether deriving from treaty or international custom and practice. Lord Bingham, The Rule of Law (supra, op cit), third, fourth and sixth sub-rules.

[46] Constitution s 49(1).

[47] Which must be held within 90 days of the expiry of the National Assembly’s term. A proclamation calling and setting dates for an election may be issued before or after the expiry of that term. Constitution s 49(2).

[48] Which must be determined after consultation with the Commission. Electoral Act s 17(1) and (2).

[49] Proc 8 of 26 Feb 2019 (calling and setting of date for election of National Assembly) Gazette 42250 p 4.

[50] After consultation with the party national liaison committee.

[51] Electoral Act s 20(1)(a).

[52] Electoral Act, Sched 1 (election timetable).

The election timetable may include any other matter authorised i.t.o. the Act. Electoral Act s 20(1A).

[53] Electoral Act s 20(1)(b).

[54] Inter alia.

[55] Gazette 42265, 28 Feb 2019, p 4. Gen Notice 113 of 2019. Electoral Commission: Election timetable for elections of National Assembly and Provincial Legislatures: par 19.

[56] Electoral Commission: Voter registration for South African citizens living abroad in February 2019. Where can I register abroad? https://www.elections.org.za/content/About-Us/News/Voter-registration-for-South-African-citizens-living-abroad-in-February-2019/ (accessed 25 Apr 2019);

Dept of International Relations and Cooperation: Voter registration for SA citizens living abroad in February 2019. Where can I register abroad? http://www.dirco.gov.za/docs/2019/iec0121.htm (accessed 24 Apr 2019).

[57] Law of South Africa, vol 2 (3 ed) “Administrative Justice”, J A v S d’Oliveira, pars 13, 14.

A court has power to review an administrative action if the administrator who took it was not authorised to do so by the empowering provision. Promotion of Administrative Justice Act 3 of 2000 s 6(2)(a)(i).

[58] Although the citizens of a democracy empower their representative institutions to make laws which, duly made, bind all to whom they apply, and it falls to the executive, the government of the day, to carry those laws into effect, nothing ordinarily authorises the executive to act otherwise than in strict accordance with those laws. Lord Bingham, The Rule of Law (supra, op cit), sixth sub-rule.

[59] inter alia.

[60] Within 15 days after proclamation of the date of the election.

[61] Electoral Act s 33(3); Election Regulations (Govt Notice R12 of 7 Jan 2004) reg 6(3).

The Commission may make special arrangements for security services personnel serving in that capacity outside the Republic. Ibid.

[62] Within 15 days after proclamation of the date of the election.

[63] Electoral Act s 33(4); Election Regulations reg 6(4).

[64] On the date designated for that purpose in the election timetable.

[65] Election Regulations reg 10(1).

[66] Election Regulations reg 10(3).

[67] In consultation with the chief electoral officer.

[68] In writing.

[69] Election Regulations reg 10(6) read with reg 10(4)(c).

[70] Election Regulations reg 10(4)(c).

[71] Dept of International Relations and Cooperation: South African representation abroad: Australia (Commonwealth of), http://www.dirco.gov.za/foreign/sa_abroad/saa.htm (accessed 24 Apr 2019).

[72] In Australian Capital Territory.

[73] In Western Australia.

[74] In Victoria.

[75] Daily Maverick, 10 Jan 2019, F Higham, “SA is our home – please help us vote abroad in these crucial elections”.

If South Africa is to succeed in a globalised world, it really has no option but to welcome its citizens moving abroad and make it easier for them to vote.

[76] Electoral Commission: Voter registration for South African citizens living abroad in February 2019. Where can I register abroad? https://www.elections.org.za/content/About-Us/News/Voter-registration-for-South-African-citizens-living-abroad-in-February-2019/ (accessed 25 Apr 2019).

[77] Dept of International Relations and Cooperation: Voter registration for SA citizens living abroad in February 2019. Where can I register abroad? http://www.dirco.gov.za/docs/2019/iec0121.htm (accessed 24 Apr 2019).

[78] “Welcome to the South African High Commission”, https://www.sahc.org.au/ (accessed 16 Apr 2019).

[79] Vienna Convention on Consular Relations, 1963. United Nations, Treaty Series, vo1. 596, p. 261. The Convention entered into force on 19 Mar 1967.

[80] Vienna Convention on Consular Relations, 1963, Chap 1 (consular relations in general) sec I (establishment and conduct of consular relations) art 3 (exercise of consular functions).

[81] Inter alia.

[82] Both individuals and bodies corporate.

[83] Provided that there is nothing contrary thereto in the laws and regulations of the receiving State.

[84] Which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State, or which are referred to in the international agreements in force between the sending State and the receiving State. Vienna Convention on Consular Relations, 1963, Chap 1 (consular relations in general) sec I (establishment and conduct of consular relations) art 5 (consular functions).

[85] With exceptions not relevant to the question here in issue.

[86] Vienna Convention on Consular Relations, 1963, chap III (regime relating to honorary consular officers and consular posts headed by such officers) art 58 (general provisions relating to facilities, privileges and immunities) subart (1).

[87] Vienna Convention on Consular Relations, 1963, chap III art 58(2).

[88] United Nations Treaty Collection, Status of treaties (1959-2009) Multilateral Treaties Deposited with the Secretary-General, Chap III : Privileges and Immunities, Diplomatic and Consular Relations, etc:  6. Vienna Convention on Consular Relations, Vienna, 24 Apr 1963.

[89] Voting from Abroad: The International IDEA Handbook, 2007 (International Institute for Democracy and Electoral Assistance (International IDEA), Federal Electoral Institute of Mexico) p 32.

[90] In Queensland.

[91] In New South Wales.

[92] Daily Maverick 10 Jan 2019, F Higham “SA is our home—please help us vote abroad in these crucial elections: If South Africa is to succeed in a globalised world, it really has no option but to welcome its citizens moving abroad and make it easier for them to vote.”

[93] New National Party v Government of the Republic and others 1999 (5) BCLR 489 (CC) par [21] per Yacoob J (Chaskalson P, Langa DP, Ackermann, Goldstone, Madala, Mokgoro and Sachs JJ concurring).

[94] Australian Trade & Investment Commission, Report 2017–18 Pt 2, Report on performance, Purpose 5: Help Australians with consular and passport services: Program 2.1: Consular and passport services: Austrade-managed consulates: Austrade Consulate-General, Houston, delivering services in heightened risk environment,  https://www.austrade.gov.au/AR-201718/part-2-report-performance/program-21-consular-and-passport-services.html

[95] Constitution, Chapter 2 (Bill of rights) ss 7–39.

[96] In elections for any legislative body established in terms of the Constitution.

[97] Constitution s 19(3)(a).

[98] International Covenant on Civil and Political Rights, New York, 1966, art 25 (a) and (b) read with art 2(1).

[99] International Institute for Democracy and Electoral Assistance (International IDEA), Stockholm, 2014, International Obligations for Elections: Guidelines for Legal Frameworks: p 25.

(International IDEA’s objectives are to support stronger democratic institutions and processes. It produces comparative knowledge about electoral processes, political participation and democracy. Ibid p 346.

(International IDEA is an intergovernmental organisation; South Africa is a member. International IDEA, about us, council of member states. https://www.idea.int/about-us#node-13 .)

[100] Identified for this purpose.

[101] And the name of the South African embassy, high commission or consulate where the vote was cast. Election Regulations reg 10(8) (inserted by Govt Notice 371 of 6 Mar 2019).

[102] Or location.

[103] As promptly and securely as possible.

[104] Election Regulations reg 10(9) (inserted by Govt Notice 371 of 6 Mar 2019).

The Chief Electoral Officer must, upon receipt of the packages, keep them in safe custody until close of voting stations on voting day, when: The packages are opened in the presence of party agents; each envelope is scrutinised against the list of approved special voters generated by the Chief Electoral Officer in conjunction with the voters’ roll; the votes that are accepted as regularly cast must be counted; and the total number of votes counted for each party are added to the total numbers of votes counted for that party. Election Regulations reg 10(10) (inserted by Govt Notice 371 of 6 Mar 2019).

[105] Inter alia.

[106] See De Beer v Van Schalkwyk NO and ano 1955 (2) SA 317 (C).

[107] Electoral Act s 38(3)(a), (5)(c) and (d), (6)(a)–(e).

[108] Save to the extent that objective differences justify differentiation.

[109] Governing the conduct of nations, and whether deriving from treaty or international custom and practice. Lord Bingham, The Rule of Law (supra, op cit), third, fourth and sixth sub-rules.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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