IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CIVIL CASE NO. 2788/03
In
the matter between
NORMAN
MUSA NGCOBO APPLICANT
VERSUS
PETROS
DZEMU NGWENYA 1st RESPONDENT
ROBERT
THWALA 2nd RESPONDENT
CORAM
SHABANGU AJ
FOR
THE APPLICANT MR. C.S. NTIWANE
FOR
THE RESPONDENT MR. B. DLAMINI
JUDGEMENT
10th February, 2004
The
applicant one Norman Musa Ngcobo initiated the present proceedings by
way of a Notice of application accompanied by a founding affidavit
before this court seeking an order as follows:
"That
the rules of the above Honourable Court in respect of form, manner
of service and time limits be dispensed with and the matter be heard
as one of urgency.
Declaring
the Secondary Elections at Mahlangatsha Inkhundla void,
Declaring
the election of 1st Respondent at such secondary election void.
Costs.
Further
and or alternative relief. "
Cited
as respondents' in the application axe one Petros Dzemu Ngwenya who
is stated to be the winner of the secondary elections under the
Mahlangatsha Inkhuadla. The second respondent is the Chief Electoral
Officer one Robert Thwala. The secondary elections, as it appears on
the papers were held on 18th October, 2003 and the first respondent
who won the elections obtained eight hundred and twenty four (824
votes) followed by the applicant who obtained seven hundred and
twenty two (722 votes). This is common cause on the papers. In
paragraph six of the founding affidavit the applicant states;
"I
submit that then were a number of anomalies and irregularities in the
conduct of the elections which render the secondary elections void in
that they affected the whole electoral process as is more fully set
out below. These irregularities and anomalies can be imputed to the
1st Respondent."
What
follows after the abovequoted paragraph of the applicants' founding
affidavit is a description of the alleged anomalies or
irregularities. What is described as irregularities by the applicant
are instances of perceived violations or non-compliance with certain
provisions of the various legislation applicable to elections in this
country.
The
alleged irregularities are as follows . The applicant states that
there is some anomaly in relation to the people residing under the
area of Mgomfelweni. The anomaly as alleged by the applicant is to
the effect that the people of the Mgomfelweni area can and did vote
in two different Tinkhundla namely Gege and Mahiangatsha. The
applicant then argues in paragraph 6.1.2 of its founding affidavit
"that people who registered in one Inkhundla were not supposed
to vote in a different Inkhunla. In the paragraphs which follow this,
the applicant by way of example mentions the name of Tholakele
Vilakati (born Lukhele) whom the applicant claims was initially
nominated for a position to the Bucopho of Mgofelweni area under the
Mahlangatsha Inkhundla, but eventually won the primary elections as a
candidate For Indvuna Yenkhundla of Gege Inkhundla, after she had
lost at Mahlangatsha. A second illustration mentioned by the
applicant is that one Jobha Vilakati who had registered under the
Gege Inkhundla eventually voted at Mahlangatsha. Similarly one Demu
Dladla of Mgomfelweni under the Gege Inkhundla is
2
alleged
to have voted at the Mahlangatsha Inkhundla. Then the applicant
concludes on the basis of the allegations referred to above that;
It
is submitted that in the premises many people did not vote under the
Inkhundla they had been registered under and this had a direct
bearing on the outcome of the elections. "
Even
though earlier on, the applicant states all the alleged
irregularities can be imputed to the respondent, the applicant offers
no evidence why this is so in respect of the alleged irregularities I
have just mentioned. Secondly other than its conclusion that many
people did not vote under the Inkhundla they had registered under and
that this had a direct bearing on the outcome of the elections, there
is no evidence of names of the many people who did not vote under the
Inkhundla on which they were registered. There is not even an attempt
to furnish evidence of the number of people who allegedly voted under
the Mahlangatsha Inkhundla whereas they were registered under the
Gege Inkhundla. The lack of evidential support for the allegations
made by the applicant is one reason it cannot be a basis for the
granting of the relief claimed in the Notice of Motion, which relief
is that the Secondary elections at Mahlangatsha Inkhundla and the
election of the first respondent be declared void.
The
other alleged irregularity upon which the applicant founds his claim
for the relief sought is summed up in paragraph 6.2.1 and 6.2.3 of
the founding affidavit.
"6.2.1.
On the 23rd September, 2003 when the candidates were campaigning at
the Mpolonjeni Umphakatsi, 1st Respondent in our presence advised the
electorate to vote for him as, according to him, they were now going
to be in a position to plough their fields because he would provide
them with fertilizer. I beg leave to refer to Jimmy Hlophe's
affidavit in support hereof..6.2.3 A week before the secondary
elections indeed 1st Respondent caused 155 bags of fertilizer and
five (5) bags of maize seed to be delivered at Mpolonjeni where they
were kept at the home of Make Dlamini (laVilakati). I beg leave to
refer to the supporting affidavit of Constance Dlamini in this
regard. "
Then
in the next paragraph which is paragraph 6.2.4 the applicant
concludes;
"It
is my humble submission that this is a crime in terms of section 63
of the Elections Order of 1992 and directly affected the electorate
of the Mpolonjeni area and ultimately the outcome of the results,"
3
The
other alleged irregularity is that on 30th September, 2003 at
Mlindzini Primary School whilst the candidates were again campaigning
the first Respondent provided food and beverages for the electorate
to the prejudice of the applicant and the other candidates. It is
further alleged that on the date of the secondary elections the First
Respondent's brother in law provided a truck with which to ferry and
transport first Respondents' supporters to the polling stations. The
applicant then says "This again was irregular according to the
relevant election law." It is further alleged that "the
First Respondents' relative was appointed a registration officer and
was the person that issued the voter's registration certificates at
Mgofelweni." The applicant then proceeds to state that this also
"affected the election process in that she did not only register
persons from Mgofelweni area but other people from other Umphakatsi
To illustrate this fact I make reference to Mbekeni Nkosingiphile
Dlamini of Mambatfweni who was furnished with certificate number
25782 at Mambatfweni and later with certificate number 335214 at
Mgofelweni."
Finally,
a further irregularity is alleged in paragraph six of the founding
affidavit as follows;
"6.5.
A further irregularity is the case of Comfort Tsela. 6.6.1 Initially
Comfort Tsela was a registration officer of KaZulu Umphakatsi and
actively issued certificates to the people of that Umphakatsi and
actively issued certificates to the people of that Umphakatsi. 6.6.2.
Mr Tsela subsequently was nominated as a candidate of the KaZulu
Umphakatsi and was a candidate at the Secondary elections at
Mahlangatsha Inkhundla. I am advised that this was bad at law and
should not have been allowed. 6.6.3 What compounds the anomaly is the
fact that when we were campaigning the said Tsela advised the
electorate to vote for 1" Respondent. "
Then
at paragraph seven of the founding affidavit the applicant concludes;
"it
is my respectful submission that the irregularities aforementioned
affected the whole electoral process and the subsequent results of
the election. In the premises it cannot be said that the electorate
exercised its rights to vote freely and fairly according to law. "
4
The
first respondent denies most of the allegations made by the
applicant. In so fax as the allegations relating to the promise and
delivery of one hundred and fifty five bags of fertilizer the first
Respondent says;
'"13.
I specifically deny that I caused 155 bags of fertilizer to be
delivered ax Mpolonjeni. What happened is that as a former member of
parliament, an application was made in July, 2002 by UMZAMO
WESAFELOKATI ASSOCIATION to the E40M Development Fund managed and
Administered by the Enterprise Trust Fund. The application for the
loan by the said Association was processed whilst I was still a
member of the previous Parliament and I did this in conjunction with
the Bucopho of that area. It was only around September that the loan
was approved and according the requested items were made available to
the Association. I enclose hereto a copy of the Swaziland Government
order form authorising the supply of the items complained of by the
applicant which is marked "DN1". The said goods were never
financed from my personal pocket but I was merely called to assist as
a person who was at the forefront when the application for the grant
was made."
The
first Respondent then goes on to deny that he provided food and
beverages for the electorate and further states that he puts the
applicant to the proof thereof. In so far as the allegation chat his
brother in law provided transport to the polling stations, for his
supporters, he responds as follows;
"I
deny the contents of this paragraph, I wish to point out that on the
date in question there were many trucks and motor vehicles and not at
once did I ask any of the vehicles to ferry my supporters to the
polling station. What I can further add is that one government truck
came at 2,30 p.m. and was assisting all the people who had come to
vote. "
Then
at paragraph seventeen the First Respondent responds to the
allegation that his relative was appointed Registration officer as
follows;
"17.
I admit that a distant relative of mine was appointed as Registration
Officer. However I was not even aware that she had applied for the
position and I do not know the criteria used to employ her. I however
deny that people from other chiefdoms were registered by her and 1
put Applicant to the proof thereof. 1 once again reiterate chat I do
not understand why I should be involved on this issue even if there
were such irregularities. In short I deny that I perpetrated,
motivated or instigated any of the alleged irregularities, if there
were any."
5
At
paragraph nineteen of his opposing affidavit the applicant states
that be is not aware that the said Comfort Tsela was urging the
people to vote for him and that he never informed the said Tsela to
do so.
The
first respondent also raised certain points of law in limine in its
answering affidavit. At the hearing of the matter is was agreed by
both counsel that it would be convenient to argue the points of law
raised in limine during the course of the hearing of the main
argument on the merits.
The
preliminary points taken in limine by the first respondent are
formulated as follows in paragraph four of the respondents' opposing
affidavit;
"4.1.
The applicant has failed to explicitly set out the grounds upon which
the above court has jurisdiction to hear and dispose of this matter.
4.2.
The applicant has not fully disclosed his locus standi which entitles
him to bring before court the present application.
4.3.
Applicants' application is fatally defective in that there has been a
non joinder of the Attonery-General who is a material party to the
proceedings before court.
4.4.
The matter is fraught with a serious dispute of facts (sic) which
cannot in any way be resolved on the papers. ..."
These
are the four main points taken in limine by the respondent on the
application. In paragraph 4,5 the first respondent takes a point
relating to the urgency of the application and states that the "the
applicant has virtually failed to set out the grounds which he avers
render the matter urgent" The point about urgency is expanded
upon in two subparagraphs of paragraph 4.5 wherein the objection is
that "The applicant has not set out in the application why he
failed to bring the application at an earlier date given the fact
that the primary elections were conducted on the 18th October, 2003"
and further that "there is no averment in applicants' affidavit
in which it is explained why applicant cannot be afforded redress at
a hearing in due course. " Then in paragraphs 4.6 and 4.7 the
following further points are taken, that;
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"4.6
The time given to applicant to file his notice to oppose and
thereafter his opposing Affidavit is grossly unreasonable and there
is just no way that 1st.
Respondent
could sufficiently prepare his case on the time given to him by
Applicant."
4,7
Applicants' application is fatally defective in that the orders
sought will only serve to leave the matter hanging and as such it is
not possible to grant Applicant relief on the prayers therein set
out"
The
first point on jurisdiction was not vigilantly pursued by Mr Dlamini
for the applicant during the hearing. In any event this point can be
disposed of by a reference to the provisions of section 28(1) of the
Establishment of the Parliament of Swaziland Order No :1 of 1992
which provides that "the High Court shall have jurisdiction to
hear and determine any question whether - (b) any person has been
validly elected as an elected member of the House." In the
present application the applicant seeks, inter alia, an order
declaring the election of first respondent at the secondary elections
at the Mahlangatsha Inkhundla void. The Applicant relies for the
relief he claims cm a number of alleged irregularities in the conduct
of the election process which according to him render invalid the
election of the first respondent. So the application raises questions
on whether the first respondent has been validly elected as an
elected member of the House of Assembly having regard to the alleged
irregularities described by the applicant in his founding affidavit.
If therefore the matter involves the determination of questions on
whether the first respondent has been validly elected as a member of
the House of Assembly then the High Court has jurisdiction in terms
of section 28 (1) of the Establishment of the Parliament of Swaziland
Order 1992, to hear and determine such question. On this basis this
point cannot succeed. It was as already stated in any event not
seriously pursued by Mr. Dlamini during arguments.
The
second point raised in paragraph 4.2 of the first respondents'
opposing affidavit is that the applicant has not fully disclosed his
locus standi. Subsection two of section 28 of the Establishment of
the Parliament of Swaziland Order 1992 may have an application to the
present question relating to locus standi providing as it does as
follows;
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"2.
An application to the High Court may be made for the determination of
any question - (b) 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."
It
would seem to follow that since the applicant is not any of the
persons named in the abovequoted subsection, which persons are
conferred with the right to approach the High Court by way of an
application for the determination of any question whether any person,
has been validly elected as an elected member of the House, that this
point has some substance. The applicant is clearly not a Senator, nor
is he an elected member of the House. During argument of the
application the applicant did not attempt to show despite invitation
by the court that he would qualify to bring these proceedings on. the
basis that he is a nominated member of the House. A nominated member
is the member of Parliament who is appointed to Parliament by the
King in accordance with section 18 of the Establishment of the
Parliament of Swaziland Order 1 of 1992. The applicant is not such a
person.. Were it not for the existence of the Parliament (Petitions)
Act, 1968 there would be no further question whether the first
respondents point should be upheld and therefore whether it should
dispose of, this application. The question is whether the Parliament
(Petitions) Act 1968 has any application in relation to the point
raised by the first respondent and assuming it has some application
the next question is how does it affect the matter of the applicants'
locus standi. The Parliament (Petitions) Act, 1968 which appears to
me to be the main statutory enactment providing for the supervision
of elections by the court confers upon "a person entitled to
vote in the election to which the petition relates" the locus
standi to approach this court by way of petition proceedings and
there raise the question whether an elected member of the house has
been validly elected or not. Whatever the present status of the
Parliament (Petitions) Act, 1968 and the Electoral act 4/1971 these
acts do not have application on the present proceedings which being
application proceedings could only have been brought on the basis of
section 28 of the Establishment of the Parliament of Swaziland Order,
No. 1 of 1992. Subsection 2 of section 28 of the Establishment of the
Parliament of Swaziland Order No: 1 of 1992 not only allows
application proceedings in respect of matters with which this court
is conferred with jurisdiction by the same section, but it also
identifies the persons who have locus standi to approach the court to
question whether any member of the House has
8
been,
validly elected. The applicant is not one of those persons who may
bring an application before this court and question whether a member
of the House of Assembly has been validly elected or not. (see also
DE VILLIERS V. LOUW 1930 AD 426 AT 431 AND OLUFSEN V. KLINER 1959 (3)
SA 351 (N) AT 354 H. quoted with approval by HULL C.J. in the
unreported decision of this court in JAMESON MNCINA V. JAMES
MAJAHENKHABA DLAMINI AND OTHERS CASE NO. 1588/93. I must point out
that it is unnecessary for me to consider whether the Parliament
Petitions Act 1968 and the Electoral Act 4/1971 were repealed or not.
Suffice it to say that I incline to the view subject to persuasion
that it was not repealed. In the circumstances the first respondents'
second point in limine is upheld and the application is dismissed
with costs. ALEX S. SHABANGU
ACTING
JUDGE
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