IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIVIL
CASE NO. 2661/03
In
the matter between:
JOCONIA
MALINDA MAMBA APPLICANT
VERSUS
DOREEN
S1PHUMELELE HLATSHWAYO 1st RESPONDENT
THE
CHIEF ELECTORAL OFFICER 2nd RESPONDENT
THE
ATTORNEY GENERAL 3rd RESPONDENT
CORAM
SHABANGU AJ
FOR
APPLICANT MR. MAMBA
FOR
1st RESPONDENT
FOR
2nd RESPONDENT MS S. MASEKO
JUDGEMENT
17th February, 2004
In
this matter the Applicant commenced the proceedings by way of an
application, by notice of motion claiming an order in the following
terms;
2
An
order dispensing the provision relating to forms of service and time
limits and hearing this case as an urgent application.
Ordering
the second respondent to suspend or stay the Parliamentary secondary
elections for the Gege Inkhundla scheduled for the 18th day of
October, 2003 pending finalisation of this application.
Ordering
that the sealed bag or box or packet containing the votes for the
Gege Inkhundla parliamentary elections held on the 20th day of
September, 2003 be opened and the votes and or ballot papers be
recounted and verified under the supervision of the Registrar of
this Honourable Court, or
3.1
Ordering that the parliamentary elections held Gege Inkhundla on the
20th day of September, 2003 be declared null and void and the
declaration by 2nd respondent that 1st respondent is the winner
thereof, void and ordering that such elections be conducted anew.
Ordering
the respondents jointly and severally, each paying the other to be
absolved, to pay the costs of this application (only in the event
that this application is opposed.)
Granting
the applicant such further and or alternative relief as this court
deems just.
When
the application came before me on the 17th October, 2003 Mr Mamba for
the Applicant indicated that he will be seeking an order in terms of
prayer three (3) which in effect was for scrutinizing the ballot
papers upon an order of this court. So at the time of the hearing I
gave Miss Maseko who appeared for the respondents an opportunity to
consult with the Chief Electoral Officer as to whether such an order
would be opposed. After such consultation Miss Maseko came back and
indicated that such an order was not opposed and so the order was
granted. I further granted an order staying the secondary elections
under Gege Inkhundla pending the compliance with prayer three (3) of
the
3
Notice
of Motion. A report has now been filed by the Registrar relating to
the primary elections that were held at Gege Inkhundla on the 18th
September, 2003 and in the Registrar's report they indicated that the
result remains the same in that a number of additional votes were
added to each of the parties, the applicant and the first respondent.
In effect the applicant got some three additional votes to the 136
that he had previously obtained and the first Respondent got 2
additional votes. The result is that the total votes for the
Applicant amounted to 139 and the total votes for the first
Respondent amounted to 140. However Mr Mamba for the Applicant states
"that there should have been an additional vote which should
have been awarded to the Applicant, a vote which was on ballot paper
No. 0357. Regarding this ballot paper, the Registrar's report is that
there was no mark on the face of the ballot paper but there was a
mark at the back in the form of a cross. The cross is on a square
holding Applicant's picture, that seems to be what is intended to be
said by the Registrar. Mr Mamba submits that a mark at the back of
the Applicant's photo is a mark which is on a square directly
opposite the name and representative or candidates or photograph"
as envisaged in section 33 subsection l(a) of the Elections Order of
1992. On the other hand Ms Maseko's submission is that, the mark on
the back of the ballot paper is not a mark or a vote that should be
taken into account because in terms of section 45 subsection 5 of the
same Order, no person should be permitted to look at the back of the
ballot paper. Therefore by implication it is argued that a vote at
the back of the ballot paper should not be taken into account. It has
also been said by Mr Mamba that such a vote indicated at the back of
the ballot paper is also on a square. The drawing of the square is at
the front of the ballot paper but because one can see the lines from
the back, then that mark is on the square directly opposite the name
so the argument goes. I am unable to agree with Mr Mamba so far as
this submission is concerned. It is my view that the mark on ballot
paper no. 0357 was not on a square
4
directly
opposite the name of the candidate. So in the circumstances it was
properly disregarded during the counting. The result is that the
results of the primary elections at Gege Inkhundla are not disturbed
and the first Respondent remains the winner. So the applicants'
application would have to be dismissed as a final outcome of this
matter. The applicant will have to pay the costs of the Application.
ALEX
S, SHABANGU
ACTING
JUDGE
