A GUIDE ON VOTING, AND VOTING ABROAD

As the upcoming national elections on 29 May 2024 looms closer, it is important to make your mark next to the suitable political party or independent candidate aligned to your views and beliefs. As a South African citizen, it is incumbent on you to participate in the decision-making process, by exercising your right to vote in terms of section 19 of the Constitution of the Republic of South Africa, 1996 (“Constitution”). Our votes will ultimately determine the trajectory of South Africa’s economic and socio-economic future.

 

Understanding the voting process

This year, voters will participate in national and provincial elections to elect a new National Assembly (“NA”) and Provincial Legislature for each province. To make an informed decision when voting, a proper understanding of the schematics of the election system is required.

South Africa has a bicameral parliament and as such, section 42(1) of the Constitution provides that “Parliament consists of – (a) the National Assembly; and (b) the National Council of Provinces.” The NA is elected to represent the people and ensure governance by the people under the Constitution, and it elects the President. Whereas the National Council of Provinces (“NCOP”) represents the provincial interests by participating in the legislative process. The NA consists of a maximum of 400 members, and the NCOP is composed of a single delegation from each province consisting of ten delegates. South Africa follows the proportional representation system of government – this means that the total number of votes for a party, or an independent candidate determines the number of seats it gets in Parliament.

 

Independent Candidate Associate South Africa NPC v President of the RSA

This year, as a result of the case of Independent Candidate Association South Africa NPC v President of the Republic of South Africa and Others 2024 2 SA 104 (CC) (see our articles published in #39/2023 and #50/2023) the Independent Electoral Commission (“IEC”) held that the 400 seats of the NA will still follow the 200 / 200 split, as follows:

• 200 seats are reserved for regional seats. Each province gets a number of regional seats based on the number of voters in that province. Independent candidates and political parties contest for these seats.
• The remaining 200 seats are filled by political parties only, as voted for on the national ballot.

 

If you are a South African citizen, and you have registered to take part in the elections (i.e., registered to vote with the IEC), you are required to mark your crosses on three ballot papers this year. This is different to the previous elections where there were only two ballot papers – a national ballot for the National Assembly and a provincial ballot for the Provincial Legislature of a province. The third ballot that is introduced this year is for regional seats reserved for each of the regions in the National Assembly.

 

Electoral Amendment Act

According to the IEC and section 1(g) of the Electoral Amendment Act 1 of 2023 (“Electoral Amendment Act”), ‘regional’ and ‘provincial’ refers to the same territorial area – the terms are merely to distinguish between the seats reserved for that region in the National Assembly (regional seats) and the seats in the Provincial Legislature of that province (provincial seats). Accordingly, voters will receive three ballot papers, which will provide the following:

• A national ballot – voters must vote for a political party only. This is the same for the whole of South Africa.
• A provincial ballot – voters may vote for a political party or independent candidate for the specific Provincial Legislature of that province.
• A regional ballot – voters may vote for a political party or an independent candidate to fill the regional seats reserved in the Parliament for a specific province.

From the summary of the ballots above, voters may also vote for independent candidates in the elections for the regional seats in the National Assembly and provincial seats in the Provincial Legislature. This change is due to the Electoral Amendment Act, and the constitutional court case of New Nation Movement NPC v President of the Republic of South Africa 2020 6 SA 257 (CC), which introduced the inclusion and nomination of independent candidates as contesters in the national elections.

Registered voters will therefore, by virtue of their vote, determine who would ultimately form part of the Provincial Legislature for that specific province (provincial ballot); and who will form part of the 400 seats available in the National Assembly (regional ballot and national ballot).

 

Voting abroad

Are you living abroad, or away for work or holiday during elections? This is no problem. South Africans abroad will be able to vote in the national elections on the 17 or 18 of May 2024, depending on which date a weekend would fall in a particular foreign jurisdiction. Section 33(3), (4) and 33A of the Electoral Act 73 of 1998 (“Electoral Act”) allows for special voting in elections for the National Assembly (i.e., our national elections) for (1) persons outside South Africa who are ordinarily resident in South Africa, (2) persons ordinarily resident outside of South Africa, or (3) persons ordinarily outside of South Africa but who intends to vote in South Africa or an embassy other than the one recorded in the voters’ roll for that person. A “person” described in the above scenarios will only be able to vote abroad if they are on the voters’ roll. To be on the voters roll, you must be registered to vote. It is noteworthy that out-of-country voters will only be able to vote in the national elections.

 

First-time voter

If you are a first-time voter who is not currently in South Africa, you can register online (find the link on the website of the IEC) or go to the nearest accredited South African mission (a link with the missions accredited as international voting stations is also available on the IEC’s website). If you’ve registered on a previous occasion, you will still be registered to vote. You can change this by using the aforementioned link or visiting an accredited mission in person.

If y0u have already registered to vote abroad but intend to vote at another accredited South African mission which is not the one at which you were registered, you must submit an online VEC 10 special vote application. The form is accessible on the website of the IEC. The purpose of this application is to inform the IEC of your intention to vote abroad and to indicate at what mission you will be casting your vote.

 

More voting stations available abroad

In the recent case of Democratic Alliance and Another v Electoral Commission of South Africa and 2 Others (case number 004/24EC), the Electoral Court upheld to have more voting stations available abroad. Section 33(3) of the Electoral Act provides that:

“In an election for the National Assembly, the Commission must allow a person, who will be outside the Republic on voting day, to 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 chief electoral officer, in the prescribed manner, by no later than the relevant date stated in the election timetable of his or her intention to vote outside the Republic and the location of the South African embassy, high commission or consulate where he or she will cast his or her vote: Provided that the Commission may make special arrangements for security services personnel serving in that capacity outside the Republic.”

[Underlining added]

 

From the above extract, it is to be noted that voting abroad can take place at an embassy, high commission or consulate. A consul is a government employee who is tasked with specific functions such as certifying documents and processing visa applications. However, an honorary consul is a representative of a country in a specific territory and is not appointed by the government. In the aforementioned case, the IEC argued that due to an honorary consul not being government appointed, it cannot conduct voting at its offices. The Electoral Court disagreed with this argument. It held that the term “consulate” in section 33(3) of the Electoral Act includes a consulate headed by an honorary consul. By inclusion of honorary consulates as voting stations, it allows for more people to vote whilst abroad.

In other words, you can cast your vote despite being abroad if you are:

• 18 years or older;
• Have a valid South African identity document (“ID”); and
• Followed the above procedures to register yourself and elected an accredited South African mission to cast your vote.

 

Voting Day

Voting day for South Africans abroad will be on 17 and 18 May 2024. In casting your vote abroad, bring your South African ID with you. Your thumbnail will be marked with indelible ink and your ID book will be stamped. If an ID smartcard is used, it will not be stamped. You will then receive a national election ballot paper on which you will make your cross and subsequently place and seal the ballot in an unmarked envelope. The unmarked envelope will be placed in another envelope with your name, ID number and name of the accredited mission where you casted your vote. Your name will then be marked off as having casted a special vote.

Whether you are in South Africa or abroad, you are entitled to cast your vote, and have a right to do so. With every corresponding right comes a responsibility – it is your responsibility to ensure that you follow the correct procedures to register and subsequently cast your vote. Voting is your expression of your voice, belief, and commitment to the democratic development of our country, especially during these trying economic and socio-economic times.