Abstract

In South Africa, permanent residents and other categories of non-citizens experience marginalisation and discrimination as a result of their non-citizen status, which is most pronounced by their exclusion from the franchise. The exclusion of permanent residents from suffrage is particularly curious, given their enormous contributions to the social and economic spheres of South African society, which are on par with and in some instances exceed those of citizens. Moreover, the exclusion of permanent residents is unjustifiable in the context of South Africa’s constitutional framework, founded on the values of dignity and equality. Using arguments based on political philosophy, this contribution will show that to exclusively attach political membership to citizenship is no longer fit for purpose, given the indistinguishable role that permanent residents play in the body politic compared to citizens. The contribution will thereafter show how the exclusion of permanent residents amounts to unfair discrimination under the test developed in Harksen v Lane. The legal assessment will reveal that the irrational exclusion of permanent residents from the right to vote is an unjustifiable harm to their dignity and equality. The contribution will suggest a constitutionally accommodative approach to interpret section 19 of the Constitution that can extend the right to vote to permanent residents, thereby mitigating the unjustifiable harm caused by their current exclusion.