THE
HIGH COURT OF SWAZILAND
VULINDLELAMSIBI
Applicant
And
ELIJAH
SHONGWE 1st Respondent
ATTORNEY
GENERAL 2nd Respondent
CHIEF
ELECTORAL OFFICER 3 rd Respondent
Civil
Case No. 808/2004
Coram
S.B. MAPHALALA – J
For
the Applicant
MR. M. SIMELANE
For
the 1st Respondent MR.
P. DUNSEITH
For
the 2nd and 3rd Respondents MR. S.
KHULUSE
JUDGEMENT
17/09/2004
The
relief sought.
2
The
relief sought in this application brought by notice of motion (in the
long form) is for the disqualification of the 1st Respondent on the
basis that he was disqualified from contesting the elections by
virtue of his position as an Indvuna and or acting Chief in terms of
the provision of Section 20 (1) (i) of Act No. 1 of 1992; that the
elections for Motshane Inkhundla be declared null and void to
commence de novo; such further and/or alternative relief as the court
seems meet; and costs to be paid by the party opposing the
application
The
historical background.
The
1st Respondent and one Skakadza Nicholas Matsebula were candidates in
the elections held under the Motshane Inkhundla in the General
elections in 2003. The 1st Respondent emerged the winner of those
elections and became Member of Parliament for the Motshane Inkhundla
in terms of the Establishment of Parliament of Swaziland Order of
1992. He was subsequently appointed a Minister of the realm under the
portfolio of Works and Communications. Mr. Matsebula was a runner up
in those elections and being dissatisfied with the outcome thereof
launched an application before this court under Case No. 3243/03,
seeking a similar remedy as the one sought in the present
application. This application was made on 12th December 2003. On the
6th February 2004, he withdrew his application on the basis that he
lacked locus standi in terms of Section 28 of the Order of 1992. The
issue of locus standi in terms of Section 28 of the Order came before
Annandale ACJ in Case No. 2783/2003 between one Meshack Makhubu and
the Chief Electoral Officer and another involving elections in the
same Inkhundla of Motshane. The learned Acting Chief Justice in a
written judgment delivered on the 5th December 2003, ruled inter alia
on this point as follows: (at page 8 of the unreported judgment).
"The
bottom line, so to speak, is that the empowering legislation which
confers jurisdiction on the High Court to hear election disputes of
the election of Members of the House, bestowed on the courts by the
Legislative Arm of Government, which otherwise would have determined
the issue itself in Parliament, limits locus standi as determined in
the Order, to the Attorney General or and elected/nominated Members
of the House....",
It
was because of the above legal impediment that the present applicant
joined the fray, as is were. The Applicant is an elected member of
the House of Assembly and
3
has
stated in his founding affidavit that his interest in this matter is
"to ensure that the composition of Parliament is properly
constituted. This is however not a personal interest but an interest
to protect the public and the intergrity of the House as a whole".
Having
outlined the general history of the matter I now proceed to sketch
the facts founding the application itself, thus;
The
facts founding the application.
The
substantial facts of the application are contained in the affidavit
of Skakadza Nicholas Matsebula which has been incorporated and
adopted in the Applicant's application forming the founding papers
marked annexure "A",
In
this affidavit he avers that he was one of the candidates for the
National Parliamentary Election held on the 18th October 2003, at
Motshane Inkhundla. The outcome of the elections was that the 1st
Respondent got 869 votes and he came second with 660 votes. He
alleges that a series of irregularities occurred during the elections
in general. Firstly, the registration process was not in accordance
with the requirements of the Voters Registration Order in that the
1st Respondent was actively involved in the Voter Registration
process at Ekupheleni. Secondly, there was a further violation of
Section 63 of the Election Order, 1992 in that the 1st Respondent
was, well knowing that he is a candidate participated in the
distribution of food at a neighbouring Umphakatsi at Enduma and thus
affecting the minds of the electorate. Thirdly, that some people were
registered more than once. That it is inconceivable to have for
example, three Ellen Shongwes of Motshane, presumably being the same
person. In other instances people were registered in absentia. The
fourth complaint is that Section 21 (1) of the Election Order Act No.
2 of 1992 was violated, in that the names of candidates were not
arranged in alphabetical order. The fifth irregularity is that the
1st Respondent is an Indvuna of Ekupheleni and according to Section
20 (1) (i) of the Establishment of Parliament of Swaziland Order of
1992 he is precluded by virtue of his position and involvement in the
preparation of the elections to run as candidate thereof. The Section
reads as follows:
4
No
person shall be qualified to be elected or appointed as a Senator or
to be elected as en elected member or appointed as a nominated member
of the House of Assembly who;
in
the case of an elected member of the House of Assembly holds or is
acting in, any office, the functions of which involve any
responsibility for, or in connection with, the conduct of any
election or the compilation or revision of any electoral register.
The
opposition.
The
1st Respondent has filed an answering affidavit in opposition
thereto. Various annexures are filed in support of the said
affidavit. The 3rd Respondent has also filed an affidavit where he
states that his office will abide by the decision of the court in and
paragraph 6 and 7 of the affidavit he states the following:
"I
as Chief Electoral Officer cannot intervene on the allegations
specified for the reasons set out hereunder:
6.
a)
The elections legislation has no express provision to the effect
that an Indvuna cannot stand for elections. This remains an issue
for interpretation by the courts.
b)
In previous elections there has never been a dispute on whether or
not an Indu Indvuna who has been elected as a Member of Parliament
should be disqualified on the basis of being Indvuna, Persons in
the position of Indvuna have been elected without any contrary view.
c)
The appointment of Mr, Elijah Shongwe as Acting Chief, as alleged by
the Applicant, is not within my personal knowledge. I am not aware of
an instrument, or formal ceremony in terms of Swazi Law and Custom,
appointing him to act as such,
d)
Further that, the normal practice is that during the period of
elections the Chief appoints two persons who are the representatives
of the Chief and his Council to look into the eligibility of a voter.
At Ekupheleni Inkhundla the person of John Dlamini and Absalom
Mavimbela were tasked with such responsibilities.
5
e)
The compilation of the Electoral register is done by my office and
not by any person at the Inkhundla, and therefore, the two persons
were appointed only to approve of persons eligible to vote.
7.
The
1st Respondent was elected as an Indvuna in the previous elections
and his election while in that capacity was never challenged,
therefore my office, unless the matter is ultimately decided upon by
the court, could not prevent the said Mr. Elijah Shongwe from being
voted for as a Member of Parliament".
Reverting
to the 1st Respondent's defence, a point of law in limine has been
raised viz that as a matter of law and/or practice, the application
should have been brought by way of petition. The failure to dos so is
a fatal irregularity. On the merits he answers each allegations
contained in the affidavit of Matsebula ad seriatim. For the sake of
brevity, I shall proceed to paraphrase the issues on the merits in
the said affidavit. The Applicant has raised five issues upon which
he disputes the validity of the 1st Respondent's election to the
House of Assembly.
Irregularity
on the voters roll.
The
Applicant relies upon an unsubstantiated speculation, viz that more
than one voter registered with the same name implies fraudulently
duplication. The Applicant has taken no steps to verify whether any
persons were registered more than once. There is no suggestion that
the 1st Respondent was in any way involved in a fraudulent
registration of voters.
Distribution
of Amicaal food parcels at Enduma area.
The
assertion in this regard is that Enduma area is not in the Motshane
Inkhundla where 1st Respondent was elected. Therefore, it is
difficult to understand the relevance of a distribution of food
parcels outside the 1st Respondent's constituency. In any event, the
Applicant withdrew this allegation in his replying affidavit in
paragraph 3.2 therein.
6
The
Applicant attempts to introduce new allegations regarding a different
distribution on Nereha food parcels in his replying affidavit,
supported by the new affidavits of Lucky Ndzingane and Petros
Shongwe. When the matter was argued it was contended for the 1st
Respondent that this is highly irregular and prejudicial to the 1st
Respondent and therefore these new allegations and affidavits ought
to be struck out.
In
the final analysis it was contended that there is no merit in this
challenge.
Names
of candidates not in alphabetical order.
This
challenge is petty and technical and no prejudice to the voters or
the candidates has been shown.
1st
Respondent intimidated voters because he is the Acting Chief of
Ekupheleni.
The
answer put forth in this regard is that it is impossible to reconcile
the Applicant's assertions that the 1st Respondent is the Acting
Chief of the area. The 1st Respondent denies that he is the Acting
Chief or that he performs the functions of the Chief (per the
affidavit of Solomon Dlamini in paragraph 21.1). In any event a
community leader is no precluded from standing for election to
Parliament provided that he does not exercise undue influence as
defined in Section 64 of the Elections Order, 1992.
Disqualification
as per the provisions of Section 20 (1) (i) of the Establishment of
Parliament of Swaziland Order No. 1 of 1992.
The
defence advanced in this regard is that the responsibility for the
conducting of elections and the compilation and revision of the
electoral register is vested in the office of Mphatsi Lukhetfo. The
compilation of the electoral register is done by the office of
Umphatsi Lukhetfo and not by any person at the Inkhundla.
The
above therefore are the substance issues in support of the 1st
Respondent's defence.
7
In
summary therefore the issues for determination in this matter may be
classified under seven headings viz, a) that as a matter of law
and/or practice, the application should have been brought by way of
petition b) irregularity on the voters roll; c) distribution of
Amicaal food parcels at Enduma area; d) the names of candidates not
in alphabetical order, e) 1st Respondent intimidated voters because
he is the acting Chief of Ekupheleni; f) disqualification as per the
provision of Section 20 (1) of Establishment of Parliament of
Swaziland Order No. 1 of 1992; and g) costs of suit. Counsel filed
very.comprehensive Heads of Argument, for which I am grateful. Both
the points in limine and the merits were argued at the same time.
I
shall proceed to address the issues ad seriatim and further wish to
add en passant that the outcome after the examination of the point in
limine will determine the future of the application on the merits. In
the event that I find that the objection raised in limine is good in
law, that would be the end of the matter and in that eventuality the
application will fall to be dismissed forthwith.
I
proceed thus; a) Procedure.
In
this regard the 1st Respondent contends that the application should
have been brought by way of petition. The failure to do so, he argues
is a fatal irregularity. In this connection the court was referred to
the unreported judgment of Jabulane Khumalo vs Titus Thwala &
others, High Court Civil case No. 2865/03 (per Masuku J). Per contra
arguments by the Applicant are that the point in limine ought to fail
in that the present application is in part based upon the provisions
of Section 28 in particular Section 28 (2) (B) which provides as
follows;
"An
application to the High Court may be made for the determination of
any question under Sub-Section (1) (b), and (c) by a Senator or
elected or nominated Member of the House as the case may be, or by
the Attorney-General", (my emphasis).
The
Applicant spaces heavy reliance on the use of the word "application"
as cited above.
8
The
second leg of the argument in this regard is that Rule 6 (1) of the
Rules of Court provides that "save where proceedings by way of
petition are prescribed by law, every application shall be brought on
notice of motion". The case of Rogers Matsebula and nine (9)
others vs Magwagwa Mdluli, Civil Case No. 2498/03 per
Maphalala
J at page 9 was cited to in support of this assertion. The High Court
case of Meshack Makhubu vs the Chief Electoral Officer and others,
Civil Case No. 2783/03 as per Annandale ACJ at page 6 paragraph 3 and
4.was also cited in this regard. Without further ado, in this regard
it appears to me that the correct position on the point of procedure
was forcefully stated in the judgment of Masuku J in the case of
Jabulani Khumalo vs Titus Thwala & others, supra where the
following appears at page 8 of the judgment, and I quote:
"One
thing is in my view clear from this provision, this provision removes
any previously hovering scintilla of doubt whether the Parliament
(Petition) Act was repealed. It is my view an ineluctable fact that
this Act, if it was ever repealed before, was expressly reinstated by
the Legislative. I am of the firm view therefore that a petition
remains prescribed even in the new election regime promulgated in
1992 where an election is being challenged",
I
agree in toto, with the trenchant remarks stated by the learned Judge
that the operative section in this regard is Section 2 of the Order
in the Interpretation Section which defines the word "election
petition" in the following language;
"Election
petition means a petition referred to in the Parliament (petition)
Act No. 16 of 1968".
Therefore
on the basis of the above the Applicant cannot succeed under the
second leg of his argument. It now behoves me however, to examine the
correctness of Applicant's argument in the first leg viz that in
terms of Section 28 (2) (b) of the Establishment of the Parliament of
Swaziland Order, No. 1 of 1992 the procedure is that an application
suffices for decision of question as to membership of Parliament. The
relevant Section reads as follows:
9
"An
application to the High Court may be made for determination of any
question - under subsection (1) (b) and (c) by any Senator or elected
or Nominated Member of the House as the case may be, or by the
Attorney General", (my emphasis)
The
operative word in the above- cited Section is the word "application"
in subsection 2. The word is not defined in the Interpretation
Section of the said Order. However, it is trite law that words should
generally be given the meaning, which the normal speaker of English
language would understand them to bear in the context in which they
are used (see Cross, Statutory Interpretation 1 and G.E. Devenish,
Interpretation of Statutes, Juta at page 5).
It
would appear to me from what I have stated above that the court in
casu is enjoined to ascribe an ordinary meaning of the word
"application" and hold that the legislature intended that
decisions of questions as to membership of Parliament ought to be
brought by way of application.
On
the basis of the afore-going therefore, I find that the point of law
in limine raised ought to fail and I forthwith proceed to examine the
matter on the merits, thus:
Irregularities
on the voters roll.
On
the totality of the facts presented before court on this question the
Applicant relies upon an unsubstantiated speculation, viz that more
than one voter registered with the same name implies fraudulent
duplication. It is not shown in Applicant's founding affidavit that
he has taken any steps to verify whether on a point of fact any
person were registered more than once. The Applicant's averments are
mere speculation and I cannot attach any evidential value on them,
whatsoever.
There
is no suggestion that the 1bt Respondent was in any way involved in a
fraudulent registration of voters. If so, to what extent that such
has influenced the outcome of the election in favour of the 1st
Respondent.
Therefore
on the basis of the above reasons the Applicant cannot succeed under
this head.
10
Distribution
of Amicaal food parcels at Enduma area.
It
is common cause that Enduma area is not in the Motshane Inkhundla
where 1st Respondent was elected. The affidavit of the returning
Officer, Edgar Qhawe Mavuso attest to this fact. It is difficult to
understand the relevance of a distribution of food parcels outside
the 1st Respondent's constituency.
The
Applicant has introduced new allegations regarding a different
distribution of Nercha food parcels in his replying affidavit,
supported by the new affidavits of Lucky Ndzingane and Petros
Shongwe. This is highly irregular and prejudicial to the 1st
Respondent. It is trite law that Applicant stands or falls on his
founding affidavit (see Herbstein et al, The Civil Practice of the
Supreme Court of South Africa, 4th ED at page 717 ). In view of this
therefore these new allegations and affidavits are accordingly struck
out.
For
the afore-going reasons I hold that the Applicant cannot succeed
under this head.
Names
of candidates not in alphabetical order.
This
point was not pursued in argument. This challenge is petty and
technical and no prejudice to the voters or candidates has been
shown. Elections can only be set-aside on substantial grounds that
establish that the constituency did not in fact have a fair and full
opportunity of electing the candidate of their choice.
I
therefore find no merit in this challenge,
e)
1st Respondent intimidated voters because he is the Acting Chief of
Ekupheleni.
In
this regard I am in agreement with the submissions advanced by Mr.
Dunseith for the 1st Respondent that it is impossible to reconcile
the Applicant's assertions that the 1st Respondent is the Acting
Chief of the area and that he is an Indvuna of the area. The
affidavit of Solomon Dlamini in support of the 1st Respondent's
answering
11
affidavit
has put the matter to rest at paragraphs 2 to 6 wherein he stated the
following:
"2
The Chief of Ekupheleni is Sobiyose Dlamini. He is the child of my
late brother. I am one of the senior members of the Chiefs family,
known in Swazi cultures as "Bantfwabenkhosr".
3.
I am informed that it has been alleged that during the time of
Parliamentary elections in 2003, whilst the Chief was indisposed due
to illness, the Indvuna of Ekupheleni are Elijah Shongwe acted as
Chief and performed the functions of the Chief.
4.
This is completely false.
5.
The Chief was in hospital for about 3 months at the time of the
elections. His duties and functions were performed by my elder
brother, Mabasa July Dlamini, as the most senior of the
"Bantfwabenkhosi", in accordance with Swazi Law and Custom.
6.
It would be highly irregular in Swazi Custom for the Indvuna to
usurp the functions of the Chief, and this did not in fact happen.
A
community leader is not precluded from standing for election to
Parliament provided that he does not exercise undue influence as
defined in Section 64 of the Elections Order.
In
the final analysis therefore under this heading I find that there is
no merit in this challenge.
f)
Disqualifications as per the provisions of Section 20 (1) of the
Establishment of the Parliament of Swaziland Order No. 1 of 1992.
An
elected Member of the House of Assembly is disqualified if he "holds
or is acting in any office, the functions of which involve any
responsibility for, or in convection with, the conduct of any
election or the compilation or revision of any electoral register"
(per Section 20 (1) (i) of Order No. 1 of 1992).
It
is common cause that the 1st Respondent is an Indvuna of Ekupheleni
under Motshane Inkhundla. The question which presents itself is
whether the customary office of Indvuna is vested with the functions
described in Section 20 (1) (i).
12
In
argument Mr. Simelane made submissions at great length on this aspect
of the matter as befits the importance of this vexed question. The
thrust of his argument simply put is that the 1st Respondent is a
member of the Chief's Council as an Indvuna. In casu, the 1st
Respondent is the person that holds the office the functions of which
involve any responsibility for or in connection with the conduct of
any election, as amplified by Section 2 (a), 5(1) an (2) of the
Voters Registration Order of 1992 and Section 2 (a) of the Election
Order No. 2 of 1993. 1st Respondent's office as an Indvuna involves
functions of any responsibility for election.
Mr.
Dunseith for the 1st Respondent argued that an Indvuna is not
included in the office of Umphatsi-Lukhetfo and he has no functions
under such office. The legislation regarding elections does not
prescribe nor vest any responsibility for, or in connection with
election (or the electoral register) in an Indvuna. That the only
direct reference to an Indvuna appears in the defination of a
"competent witness" under Section 2 of the Voter
Registration Order, 1992. The defination embraces a variety of
offices of authority or trust, including chiefs, tindvuna, town
clerk, attorneys etc but is qualified at the end by a rider that
competent witness "does not include candidate for election or
election agent the only reasonable inference to be drawn is that the
legislature envisaged an indvuna being a candidates for election.
It
appears to me that the case for and against the Applicant hinges on
the meaning to be ascribed to words "any responsibility for"
used in Section 20 (1) (i) of Order No. 1 of 1992, put differently,
the question is whether the customary office of Indvuna is vested
with the functions described in Section 20 (1) (i) of the Order.
According to Sections 3 and 4 of the Electoral Office Order, 1998
responsibility for the conducting of elections and the compilation
and revision of the electoral register is vested in the office of
Umphatsi-Lukhetfo. The said Sections mentioned that the office of
Mphatsi-Lukhetfo consists of
• Chief
Electoral Officer
• Electoral
Officers
• Registration
Officers
• Returning
and other Election Officers
13
(See
the Electoral Office Order, 1998 (Section 3 (1) Voter Registration
Order and Election order 1992 Section 3). The above listed officers
it would appear to me are the persons referred to in Section 20 (1)
(i), "the functions of which involve any responsibility for, or
in connection with, the conduct of any election ...". An
Indvuna is not included in the office of Umphatsi-Lukhetfo and he has
no functions under such office. In this regard I agree with the
submissions made by Mr. Dunseith that the position of Indvuna is a
traditional or customary office. Swazi custom does not prescribe any
responsibilities in connection with elections to an Indvuna.
The
legislation regarding elections does not prescribe nor vest any
responsibility for, or in connection with elections (or the electoral
register) in an Indvuna.
The
only direct reference to an Indvuna appears in the definition of a
"competent witness" under Section 2 of the Voters
Registration Order, 1992.
The
Section provides as follows:
"Competent
witness" means
a
Chief or an Indvuna of the Chiefdom;
a
person who, within Swaziland, holds the office of, or appointment
as, an Assistant
Regional
Officer, registration officer, returning officer, or a town clerk of
a municipality or a Chairman or secretary of a town council or town
board or police officer of or above the rank of sub-inspector; or
e)
an Ambassador, High Commissioner or Trade Representative or a member
of his staff outside Swaziland who has been appointed by him as a
competent witness.
d)
A person who, within Swaziland, is or holds the office of, or
appointment as, an advocate, attorney, magistrate, bank manager,
consular officer of a country or territory of the Commonwealth,
commissioner of oaths or justice of the peace, but does not include
candidate for election or election agent
14
The
above defination embraces a variety of offices of authority or trust,
including chiefs, tindvuna, town clerks, attorneys, etc but is
qualified at the end by the rider that competent witness "does
not include candidate for election or election agent". In other
words, an Indvuna is a "competent witness" unless he is a
candidate for election.
It
appears to me further that reliance by Applicant on Section 5 (1) of
the Voters Registration Order, 1992, as attributing functions of an
Indvuna involving responsibility for the conduct of an election
cannot be sustained on a number of grounds. Firstly, a libandla or
Chiefs council is an advisory body. Any responsibility for decisions
taken vests in the Chief, not the members of his council providing
relevant information regarding eligibility of voters may be a
function relating to an election but it does amount to "
responsibility for, in connection with, the conduct of any election
or the compilation or revision of any electoral register"
"Responsibility" means that a person is held accountable.
Secondly,
it is also clear that the 1st Respondent as a matter of fact
exercised no functions with regard to responsibilities for the
election or the voter registration.
In
sum, therefore I am of the considered view, that every eligible
registered voter in Swaziland has a fundamental right to stand for
election to parliament unless expressly deprived of that right by a
clear provision of the statutory law. The provisions of Section 20
(1) (i) in the circumstances ought to be interpreted restrictively to
safeguard such rights. In the instant case, the Applicant has failed
to discharge the onus of proving on a balance of probabilities that
the legislature intended to deny an Indvuna the right to stand for
elections.
For
the above reasons therefore the application ought to be dismissed. g)
The question of costs.
Mr.
Dunseith argued on behalf of the 1st Respondent that in the event I
find against the Applicant I ought to levy costs at a punitive scale.
It was submitted that the Applicant lent his status as a Member of
Parliament to a defeated candidate to enable
15
the
latter to challenge the 1st Respondent's election, without exercising
any personal discretion.
Secondly,
it was submitted that the Applicant did not make any effort to
satisfy himself that there was merit in the application, nor did he
even allege that he believed the allegations of Skakadza Matsebula.
Such conduct by a Member of Parliament is an abuse of office and a
dereliction of duty warranting a penal order for costs on the
attorney-client scale.
Mr,
Simelane for the Applicant advanced au contraire arguments in this
regard.
According
to the authors Herbstein et at, The Civil Practice of the Supreme
Court of South Africa, (4 ED) at page 717 an award of
attorney-and-client scale will not be granted lightly, as the court
looks upon such orders with disfavour and is loath to penalize a
person who has exercised his right to obtain a judicial decision on
any complainant he may have (see cases cited at folio 146 therein).
In
my assessment of the facts of the present case I cannot find any
fault on the part of the Applicant that he has abused his office as a
Member of Parliament as contended by the 1st Respondent. Therefore, I
would levy costs at the ordinary scale.
The
court order.
ii)
The application is dismissed and the costs to follow the event,
iii)
The costs levied at the ordinary scale.
S.B.
MlAPHAL A1 A
JUDGE
