THE
HIGH COURT OF SWAZILAND
Civil
Case No.2865/03
In
the matter between
JABULANI
KHUMALO Applicant
And.
TITUS
THWALA 1st Respondent
CHIEF
ELECTORAL OFFICER 2nd Respondent
ATTORNEY-GENERAL
3rd Respondent
CORAM
: MASUKU J.
For
the Applicant : Mr Bougaui S. Dlamiui
For
the 1st Respondent : Mr Mauene Thwala
For
the 2nd Respondent : Mr Leo Dlamini
JUDGEMENT
8th March 2004
Relief
Sought
This
is an application which was launched on the 14th November 2003, by
the Applicant on an urgent basis. The Applicant prayed for the
following relief: -
Declaring
the secondary elections conducted at Zombodze South Chiefdom on the
18th October 2003, null and void.
That
an order be and is hereby issued directing the 2nd Respondent to
conduct fresh secondary elections for the said Zombodze Iukhundla.
That
an order be and is hereby issued declaring the 1st Respondent not a
fit and {PAGE } proper person to stand for parliamentary elections
by virtue of the irregularities committed by him.'
Alternatively,
that an order be and is hereby issued declaring the Applicant as
winner of the secondary elections conducted at the Zombodze
Inkhundla.
Costs
of the application
Further
and/or alternative relief. Preliminary Observations
Strangely,
the first time that the matter appears to have served in Court was on
the 12th December 2003, according to the Judges' file. No order
appears to have been made on that date save postponing the matter to
the contested roll of the 23rd January 2003, It therefor becomes a
matter of surmise if the matter was ever heard on the 14th November,
2003, and if so, what transpired. If not, the question is why the
matter never featured as the 14th November does not appear to have
been substituted for any later date.
It
is also worth pointing out that the representative of the 2nd and 3rd
Respondents submitted that his instructions were to abide by the
decision of the Court. No papers were filed by the said Respondents,
who argued that they were not in any event served with the papers and
there appears to be nothing to gainsay that. They were nonetheless
happy for the matter to
proceed.
Back
ground
The
Applicant's case
The
Applicant deposed as follows in his Founding Affidavit: That he is a
male adult of Zombodze Nhlarigano. It is his evidence that on the
20th September 2003, he won the primary elections in his area, thus
becoming eligible to contest for the position of Member of Parliament
for his Inkhundla. In the final contest, there were four (4)
candidates, including the 2nd Respondent.
{PAGE
}
He
states further that on the 15th October 2003, at or near kaMlalali
area, the 1st Respondent, accompanied by one Mdumisenl Lushaba,
wrongfully and unlawfully and to his prejudice, unduly influenced a
crowd of about ninety (90) people to vote for him by distributing
food hampers and other household paraphernalia to the said crowd of
people.
The
Applicant alleges further that as the distribution exercise ensued,
the 1st Respondent's agents, including the aforesaid Lushaba,
contemporaneously issued pamphlets to the people, urging them to cast
their votes in favour of the 1st Respondent. A picture captured by
the Swazi Observer, dated 26th October 2003, is annexed by the
Applicant and depicts the 1st Respondent during the aforesaid
exercise. I will address its significance later in the course of the
judgement.
The
Applicant further alleges that the 1st Respondent indoctrinated the
said crowd by masquerading as a close member of the Royal Family. He
allegedly told the crowd that on the said date, he had a scheduled
meeting with King Mswati III at Embangweni Royal Residence, where he
was to discuss some pressing issues with the King.
Upon
seeing the above events, which the Applicant considered to be
infractions of the Elections Order No.2 of 1992, (hereinafter
referred to as "the Order") he caused a report of the
incidents to be made to the Station Commander of Nhlangano Police
Station. He also caused a letter of complaint to be written to the 2"
Respondent. It is a matter of record that the 2nd Respondent never
responded to this letter. It is also a matter of observation that the
letter of complaint was not copied to the alleged offender, to enable
him to place his side of the story on record if he felt it necessary
to negative the Applicant's assertions.
In
support of the allegations surrounding the events of the 15th
October, the Applicant annexed supporting affidavits of four (4)
persons who allege that they were present and did see the events
narrated above, which in the Applicant's view, were contrary to the
letter and spirit of the Election laws.
{PAGE
} 00 The 1st Respondent's case
The
1st Respondent has taken two points in limine_ and has proceeded to
contest the matter on the merits. The points in limine are the
following: -
that
the Applicant has chosen a wrong procedure in bringing the
proceedings before Court. It was his case that such proceedings
ought to be brought by petition and not application as the Applicant
purported to do.
That
the application is in any event defective for it does not ex facie
disclose any allegations by the Applicant to the effect that but for
the irregularities allegedly committed by the 1st Respondent, the
Applicant would have been successful in the elections.
That
the papers filed of record fail to disclose a cause of action in
favour of the Applicant in so far as he has failed to show ex facie
the papers the following material averments;
The
identities of the ninety (90) people;
That
the said people eventually turned up to vote during the
secondary
elections and that they voted for the 1st Respondent; and (iii) That
in voting for the 1st Respondent, they were compelled' by the food
hampers they received on the 15th October 2003 to do so.
On
the merits, the Applicant concedes that he did distribute the food
hampers but states that he did so in his capacity as the current
chairman of an association known as Zombodze Smart Charity
Organisation. He states that the money used to purchase the goods was
donated by the members themselves. He denies that he distributed the
food in order to influence the people to vote for him. The 1st
Respondent states that for the Applicant to succeed, he must show
that the 1st Respondent has been convicted of a breach of the
provisions of the Order. I will address this legal question in due
course.
The
1st Respondent further denies that there was a distribution of the
pamphlets during the said occasion, He further denies that he ever
insinuated that he was closely related to the
{PAGE
}
Royal
Family. He slates that this would have been an absurd and
irresponsible utterance by him because the people present during the
food distribution exercise knew his family roots and could not be
duped by him belatedly claiming that royal blood was running in his
veins. An affidavit by the headman was filed by the 1st Respondent,
to confirm his story and his denials as recorded above.
It
is clear, from the foregoing, that there are obvious disputes of fact
that arise in this matter. It is a matter of comment that the
euphoria that grips some people during elections and the partisanship
that is evoked at such emotive times blind some people to the truth
and often causes others to conceive falsehood in their highly fertile
imagination. Oral evidence would therefor be necessary to sieve facts
from fiction in this case, to separate the friends of the" truth
from the enemies of the truth.
After
carefully analysing the case, I formed the impression that from the
issues that arise, both in relation to the points in-limine and to
the merits, certain legal issues could render the matter caedit
quaestio, thus obviating the need to call viva voce evidence. This is
the course that was adopted with the concurrence of counsel on both
sides. I now proceed to determine the live issues.
History
of Disputed Elections Matters.
Before
delving into the legal issues, I find it apposite to briefly retrace
the history of election matters. The starting point is to realise
that our principles of election law, like those of the Republic of
South Africa, have been heavily influenced by English law. In this
regard, I refer to DE VILLIERS VS LOUW1931 AD 241 at 267, where
Wessels J. A. had this to say: -
"In
deciding this case, it in essential to ascertain the principles upon
which we ought to decide elections petitions. As the whole procedure
of parliamentary elections is foreign to our common law, and is
derived front Englisli statute law, we ought to adopt the principles
resorted to by English Courts except where our statute differs from
English electoral statutes. "
{PAGE
}
It
is a historical fact that previously, the Legislative Ann of
Government reserved to itself the right to determine disputed
elections. In England, a new course was charted it 1868 when this
function was delegated to the Judiciary by a legislative enactment.
It stands to reason therefor that in making a determination on an
election matter, the Court must have recourse, exclusively to the
legislative enactment promulgated to govern elections.
In
DE VILLLIERS VS LOUW 1930 AD 426 at 430, Curlewis J.A. put the matter
poignantly in the following language: -
"In
considering this matter, it is well to bear in mind that a Court of
Law can have jurisdiction in connection with an election petition
only in so far as jurisdiction has been conferred upon it by the
Electoral Act, and that power... to deal with an election
petition...and the extent of that power, must be found within the
four corners of the Act. "
Drawing
closer, home, it is clear that the Legislature conferred jurisdiction
to the Courts to decide election matters through the Elections Order,
No.2 of 1992, which repealed the previous legislative regime. It is
accordingly clear that this is the instrument that the Court must
primarily adhere to in determining this matter and then to have
recourse to English law principles where a lacuna exists.
Procedure
for bringing election matters
The
1st Respondent contends that the Applicant has chosen a wrong vehicle
to bring these proceedings. It is clear from the format adopted by
the Applicant that these proceedings are application proceedings
governed by the provisions of Rule 6 (1), which read as follows;
"Save
where proceedings by way of petition are prescribed by law, every
application shall be brought on notice of motion, supported by an
affidavit or affidavits as to the facts upon which the applicant
relies for relief. "
There
are pieces of legislation that come in mind in which petitions are
prescribed and these are liquidation proceedings and admissions of
attorneys, advocates, conveyancers
{PAGE
}
and/or
notaries of the Courts of Swaziland. The question that arises is
whether there is any statutory prescription in the Order that
petition proceedings shall be employed in challenging election
matters.
Before
answering this vexed question, it is necessary to point out, that
there are two main decisions by this Court to which I was referred
and which unfortunately returned different answers. The first is the
judgement of Hull C.J. in TEE ATTORNEY-GENERAL VS JAMES MAJAHENKHABA
DLAMINI AND OTHERS CIVIL CASE 1588/93. At page 2 of the said
judgement, Hull C.J. (as he then was) came to the following
conclusions;-
"For
the reasons that I gave in writing at the time, when ruling on
preliminary points, I deckled that under the 1992 Order, it was open
to proceed by means of a notice of application, and in the way in
which this matter has in the event gone, there have been no real
differences of fact on the relevant issue. However, the practice
here, formerly, was to proceed by way of petition, following the
practice which governs such matters in South Africa and England,
There are sound reasons why that should be so and it is desirable, in
my view, to reinstate the provisions formerly contained in the
Parliament (Petitions) Act, 1968 (No.16 of 1968) and the rules that
were made under it, if my conclusion that that Act was impliedly
repealed is correct. In the meantime, as a matter of practice, or if
that conclusion were wrong, proceedings of this kind should in future
be commenced by way of petition." . .
It
is undoubtedly clear from the foregoing that Hull C.J., held the view
that petition proceedings, although not clearly prescribed, should,
as a matter of practice, thenceforth be adopted in such cases.
Maphalala J. in RODGERS MATSEBULA AND NINE OTHERS VS MAGWAGWA MDLULI
AND ANOTHER CIV. CASE NO. 2788/03,
came
to a different conclusion from that of Hull C.J. The learned Judge
held the view that the Parliament Petitions Act, although not
expressly repealed, appears to have been impliedly repealed by the
1973 Proclamation and the Voter Registration Order of 1992. In
reference to the excerpt of Hull C.J. quoted in part above, Maphalala
J. held the following at page 10 of the carefully considered
judgement: -
{PAGE
} .
and/or
notaries of the Courts of Swaziland. The question that arises is
whether there is any statutory prescription in the Order that
petition proceedings shall be employed in challenging election
matters.
Before
answering this vexed question, it is necessary to point out, that
there are two main decisions by this Court to which I was referred
and which unfortunately returned different answers. The first is the
judgement of Hull C.J. in THE ATTOMNEY-GENERAL VS JAMES MAJAHENKHABA
DLAMINI AND OTHERS CIVIL CASE 1588/93. At page 2 of the said
judgement, Hull C.J. (as he then was) came to the following
conelusions;-
For
the reasons that I gave in writing at the time, when ruling on
preliminary points, I decided that under the 1992 Order, it was open
to proceed by means of a notice of application, and in the way in
which this matter has in the event gone, there have been no real
differences of fact on the relevant issue. However, the practice
here, formerly, was to proceed by way of petition, following the
practice which governs such matters in South Africa and England.
There are sound reasons why that should be so and it is desirable, in
my view, to reinstate the provisions formerly contained in the
Parliament (Petitions) Act, 1968 (No. 16 of 1968) and the rules that
were made under it, if my conclusion that that Act was impliedly
repealed is correct. In the meantime, as a matter of practice, or if
that conclusion were wrong, proceedings of this kind should in future
be commenced by way of petition."
It
is undoubtedly clear from the foregoing that Hull C.J. held the view
that petition proceedings, although not clearly prescribed, should,
as a matter of practice, thenceforth be adopted in such cases,
Maphalala J. in RODGERS MATSEBULA AND NINE OTHERS VS MAGWAGWA MDLULI
AND ANOTHER CIV. CASE NO. 2788/03, came to a different conclusion
from that of Hull C.J. The learned Judge held the view that the
Parliament Petitions Act, although not expressly repealed, appears to
have been impliedly repealed by the 1973 Proclamation and the Voter
Registration Order of 1992. In reference to the excerpt of Hull C.J.
quoted in part above, Maphalala J. held the following at page 10 of
the carefully considered judgement; -
{PAGE
}
"It
appears to me that the learned Chief Justice was merely making a
recommendation to the legislature and was not making law or giving an
instruction and this was somewhat conceded by Mr Ntiwane in his half
hearted argument on this point. In the final analysis therefore, in
the absence of any express prescription that these proceedings should
be by way of petition, the application has been brought by way of
motion in terms of (Rule 6 of the Rules of Court (as read with Rule 6
(25), Therefore for the above reasons the point of law in limiue
ought to fail. "
The
central issue to both judgements in my view revolves around the
provisions of 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 (Petitions)
Act No. 16 of 1968".
One
thing is in my view clear from this provision. This provision removes
any previously hovering scintilla of doubt whether the Parliament
(Petitions) Act was repealed. It is in 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 therefor that a
petition remains prescribed even in the new elections regime
promulgated in 1992. where an election is being challenged.
This
conclusion in my view endorses Hull C.J.'s conclusions and also shows
that his fears or apprehensions regarding the implied repeal and
therefor his recommendation, would have been rendered unnecessary if
his attention had been brought to Section 2 of the Order.
In
like manner, I am of the respectful view that Maphalala J's
conclusions were made per incuriam in that his attention was not
drawn to this important provision which is unfortunately "hidden"
in the interpretation Section, whereas it would most probably have
been placed in a more notorious place in the body of the legislation.
Overlooking it is in the circumstances the rule rather than the
exception and for that reason, both learned Judges' conclusions must
be viewed in this light.
{PAGE
}
I
harbour no doubts that had the provisions of Section 2 been brought
to the attention of Maphalala J,, he could not have arrived at any
oilier conclusion than that petition proceedings are prescribed and
therefor the provisions of Rule 6 of the Rules of Court are / of no
application to election matters.
I
am of the view therefor that Hull C.J. was correct although my
reasons for so concluding, as evident above have a legislative
premise, whereas he premised his on practice and. the imperative of
desirability.
I
wish to expound on Hull C.J.'s reasoning in the excerpt quoted above.
He says "there are sound reasons why that should be so and it is
desirable, in my view, to reinstate in the provisions formerly
contained in the Parliament (Petitions) Act 1968...". The "sound
reasons" and "desirability" referred to in my view lie
in the following.
Firstly,
it should be borne in mind that the Court, in sitting in such matters
sits not in exercise of its residual civil jurisdiction under Section
2 (1) of the High Court Act, 1954. Elections have a special and
distinct procedure and are not a civil suit. If the Rules applied, as
contended by the Applicant's representative, it would mean that where
disputes of fact arise, as they invariably do in election matters,
and this case being no exception, the Court could dismiss the
application on the grounds that the dispute of fact was not
foreseeable but actually foreseen. In the ordinary order of things,
this would force the "Applicant" to initiate the
proceedings by way of action,, a course that is foreign to election
law. This would be necessary to avoid the situation where the Court
would dismiss the application because of the disputes of fact and the
matter would have to be governed by the lengthy time limits
applicable to action proceedings. This would result in the loss of
valuable time and a prolonged uncertainty over the properly elected
candidate, something that does not auger well for the desired speedy
finality of elections.
The
petition proceedings on the other hand are designed within themselves
to have a mechanism which is in built for resolving any disputes of
fact and thereby allow viva voce evidence to be led. These are in my
view prime considerations, which aside from the legislative
prescriptions, ought to weigh heavily on the Court in holding, as
Hull C.J. did that petition proceedings are appropriate. Any other
course would be counter-productive
{PAGE
}
and
unduly laborious. It is apposite to again refer to the remarks of
Curlewis J.A. in DE V1LLIERS VS LOUW (supra).
The
conclusion, to which I have arrived is in my view consonant with the
procedure and practice in other jurisdictions. In this regard, I
refer to the judgement of FABRICIUS VS VAN DER WALT 1916 AD 247 at
249, where the learned jurist Innes C.J. slated as follows; -
"It
is a matter of history thai in the Cape Province, as in England, the
determination of election petitions challenging the validity of
returns to a seat in the House of Assembly was originally retained by
that body in its own hands. " Jurisdiction in such matters was
conferred on the Superior Courts by Act 9 of 1883... turning to the
Transvaal.., Procedure by way of election petition was originally
constituted in reference to municipal elections by Ordinance 38 of
1903, Full provision was made for the presentation of such petitions
to the Supreme Court. " (Emphasis added).
See
also INKATHA FREEDOM PARTY VS AFRICAN NATIONAL CONGRESS 1994 (3) SA
578 (WLD),
I
come to this conclusion with .a measure of sympathy for the Applicant
in that he was guided in his approach by the RODGERS MATSEBTILA
judgement (supra). It is however desirable, for purposes of future
guidance and certainty that these conflicting . judgements be placed
for final and authoritative pronouncement by the Court of Appeal, as
these elections matters seem to be with us, and with indications from
the last elections, are likely to haunt us and to swell enormously in
the nest elections.
I
shall not enmesh myself in the import of the provisions of Section 28
of the Establishment of Parliament Order of 1992 as it will be clear
from the papers that it is not the 1st Respondent's complaint that
the Applicant has no locus standi to bring these proceedings in terms
of the aforesaid Section. I therefor express no opinion on that
matter as it is not before me.
{PAGE
}
I
am of the view therefor that this legal point is well taken and the
application be and is hereby dismissed with costs. In view of this
conclusion, I find it unnecessary to consider and to pronounce upon
the other points in limine raised by the 1st Respondent, save to say
that they prima facie carry some prospect of success. I do however
feel in duty bound to consider the legal issues that arise from the
distribution of the food and I proceed to do so below.
Alleged
breach of the Order by the 1st Respondent
In
paragraph 7,3 and 7.8 of the Founding Affidavit, the Applicant
alleged that the 1st Respondent "unduly influenced" the
crowd of ninety to vote for him by distributing the food hampers and
by uttering words to the effect that he was closely related to the
Monarch.
The
conduct allegedly committed by the 1st Respondent in my view falls
squarely within the penalty provisions of the Order, in particular,
Section 63, 64 and 65. The language employed by the Applicant in the
Founding Affidavit imputed "undue influence" on the part of
the 1st Respondent, in respect of both infractions alleged.
"Undue
influence" is described in the operative Section 64 as follows:-
"
(1) A person shall be guilty of the offence of undue influence who,
directly or indirectly, by himself or by any other person —
makes
use of or threatens to make use of any force, violence, or restraint
upon or against a person;
inflicts
or threatens to inflict by himself or by any other person, or by any
supernatural or non-natural means or pretended supernatural or
non-natural means, any temporal or spiritual injury, damage, harm or
loss upon or against any person; or
does
or threatens to do anything to the disadvantage of any person, in
order to induce or compel such persons to —
{PAGE
}
sign
a nomination paper or refrain from signing a nomination, paper.
vote
or refrain from voting; or
refrain
from claiming registration as a voter or front offering himself as
candidate for election; or on account of such person having –
signed
or refrained from signing a nomination paper;
voted
or refrained from voting at an election;
refrained
from claiming registration as a voter; or
refrained
from offering himself as a candidate.
(2)
A person shall also be guilty of the offence of undue influence who;
by abduction, duress, or fraudulent device or contrivance impedes or
prevents the free exercise of his vote by a voter or thereby compels,
induces, or prevails upon a voter either to give or to refrain from
giving his vote at an election.
(3)
Any person convicted of an offence under sub-section (1) or (2) shall
be liable on conviction to a. fine of five thousand emalangeni or to
imprisonment for five years, or both."-
It
would appear to me, regard had to the allegations made on the one
hand and the above statutory interpretation on the other, that there
is no evidence that any undue influence can, from the alleged
infractions, be properly ascribed to the 1st Respondent. Undue
influence is therefor a misnomer and I find that the Applicant has to
fail on this score as well. There is no allegation or indication that
the 1st Respondent threatened to use force, violence or restrain any
person, nor is it alleged that he inflicted or threatened to inflict
any injury on any person. It is also clear that no allegations of
threats to do anything in order to induce or compel the people to
vote for him or to refrain from voting for others are made. It was
vitally important for the Applicant to have recourse to the
provisions of the Order and to carefully and closely scrutinise the
same before formulating a case, which must in the final analysis, be
based on the provisions of the Order as aforesaid.
{PAGE
}
I
should hasten to add in this regard that faced with the insuperable
difficulties in his way, given the Legislative nomenclature, Mr
Dlamini for the Applicant made a startling proposition, whose impact
still reverberates to the present moment. He submitted that the Court
should not consider this case in the light of the provisions of the
Order, but should consider it in the light of what he termed "public
policy", which is in my view a Pandora's box, with a limitless
abyss.
Such
a course is obviously untenable for a variety of reasons, chief of
which is that as was once pointed out by an eminent jurist, "public
policy is a restive horse and when once one gets astride of it, there
is not knowing where it will carry you." Secondly, as indicated
earlier, the Court is bound to give effect to legislative solicitudes
reflected in the language used. It is not open to the Court to have
regard to principles falling outside the ambit of the language of the
enactment, particularly so where these are fully and exhaustively
provided for. See De VILLIERS VS LOUW (supra), per Curlewis J.A. I
cannot therefor accede to this line of reasoning and jettison the
Legislative intent apparent from the wording of the Order in favour
of the nebulous phenomenon called public policy.
I
am however of the view that this should however not mark the end of
the matter. The Court is in my view entitled, from the allegations
made to consider whether or not the conduct alleged against the 1st
Respondent does fall within the ambit of any of the other penal
provisions.
It
would appear to me that the distribution of the food should be
properly considered under the offence of "treating" as
defined in Section 63. It is defined as follows: -
"A
person who corruptly by himself or by any other person either before
... an election, directly or indirectly gives or provides ...any
food, drink, ...to or for a person for the purpose of corruptly
influencing that person...to give...his vote at an election... shall
be guilty of the offence of treating. "
It
is worth noting the 1st Respondents' response. He says that he did
not distribute the food in his personal capacity but did so in an
official capacity and to a defined group of people i.e. members of
the Charity Organisation, who had contributed the money.
{PAGE
}
Given
the 1st Respondent's explanations can it be said, subject to my
consideration of Section 67, that the 1st Respondent "corruptly"
influenced the ninety to vote for him. I think not. It is clear that
this was an activity for a specific organisation to which the members
thereof contributed. This cannot in my view be gaiusaid. I am not
convinced that the corrupt intent, necessary to be shown under this
section has been demonstrated in the light of the 1st Respondent's
case.
Furthermore,
it is clear on the Applicant's own case that this activity continued
even after the elections, not for the purpose of extending his
gratitude to the ninety for their votes (if they voted for him), but
to continue with the Chanty Organisation's distribution activities. I
refer in this regard annexure "JK2" of the Founding
Affidavit, being an article from the Swazi Observer, dated 20th
October 2003. The onus on the one who alleges is very high and must,
considering that this is a penal provision, be discharged beyond a
reasonable doubt.
It
is my considered view that the Applicant countered the 1st
Respondent's story by filing the Affidavit of his attorney, where it
is alleged that the Charity Organisation is not registered and is
therefor unlawful, thereby rendering the distribution itself illegal.
In
paragraph 3 of the said Affidavit, the Applicant's attorney, Mr
Dlamini makes the following deposition; -
"On
the 19" December 2003,I proceeded to the Registrar of Companies
at 3rd Floor, Justice Building, Mbabane, District of Hhohho to make
enquiries as to whether an association called "Smart Zombodze
Charily Organisation was . registered and the results were in the
negative. "
The
Court suo main raised this issue that this paragraph apparently
contained inadmissible hearsay evidence for the reason that Mr
Dlamini deposes to what he was told and is notable from his
knowledge to testify as to the truth of the results. It is my view
that an affidavit from a relevant official and who maintains the
records at the Registrar of Companies would have sufficed. The fact
that this was never raised by the Respondents is of no consequence.
Inadmissible evidence does not become admissible only for the reason
{PAGE
}
that
it is not contested as such. See ISAAC S. SHABANGU VS COMMISSIONER OF
POLICE AND TWO OTHERS CIVIL APPEAL CASE NO.4/95.
At
page 8, Schreiner LA. (as he then was) had this to say:-
"The
failure to give notice of intention to argue the admissibilily of
evidence cannot, in my view render hearsay evidence, which is not
evidence at all, admissible. The Court cannot inver (sic) from the
mere failure to object that the other party accepts the correctness
of the hearsay allegations. "
I
note in casu, that the affidavit of the Applicant's attorney was
filed with the Replying Affidavit, when ordinarily there is no
opportunity for the Respondents, outside of making an application to
file a further set of affidavits, to contest it I am of the view that
even if the other side does not object to the admission of hearsay
evidence, the Court should not allow hearsay evidence, which as noted
above, is not evidence at all, to be admitted only for the reason
that the other side has recorded no objection to its admission.
I
am of the view that in any event, even if that affidavit had been
filed by the proper official the fact of the non-registration of the
organisation does not necessarily render the distribution illegal.
The association may be illegal de jure because of non-registration,
but its de facto existence and activities cannot on the papers be
successfully denied. The illegality of the organisation cannot in my
view be equated with the illegality of its activities for it is
common cause, particularly in rural areas like where the parties
herein live that associations are formed in oblivion of the
legislative requirements. This is in my view a notorious fact in
respect of which I am entitled to take judicial notice.
In
any event, it was correctly submitted on the 1st Respondent's behalf
that in respect of either of the alleged infractions., a criminal
conviction is a sine qua non for an application to setting aside an
election on the basis of the contravention of Sections 63, 64 or 65.
In support of this submission, Mr Thwala referred this Court to the
provisions of Section 67 (2) of the Order, which have the following
rendering: -
"A
person who is convicted of a corrupt practice is thereby disqualified
for a. period of seven (7) years from the date of his
conviction....from being elected
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}
a
member and, if at that date he has been elected a. member, his
election shall he deemed void as from the date of conviction. "
It
is clear from the foregoing in my view that a criminal conviction in
respect of corrupt practices must be returned before a person can be
ordered disqualified. This is in my view plain from the Legislative
nomenclature. To find otherwise would in my view result in the
fracture or the subversion of clear and unambiguous legislative
intent, apparent from the language used.
In
casu, it is abundantly clear that that no criminal proceedings were
instituted, let alone a conviction returned. I am of the view that
the Applicant has put the cart before the horse and he should
therefor fail. The penalty carried under this section is very severe
and has very grave consequences for a person accused of contravening
the Order, because it takes away his right of enfranchisement and for
a lengthy period of time. The exercise of this basic right cannot
therefor be abrogated on the basis flimsy and unsubstantiated
allegations. . This in my view was the policy consideration in
putting this legislative regime in place and requiring the high
standard of proof applicable to criminal matters.
Mr
Dlamini submitted that this provision is not correctly interpreted
for it collides with the celebrated rule in the case of IIOLLINGTON
VS. F. NEWTHORN & COMPANY LIMITED [1943] 2 ALL ER 35. It is clear
from the leading of the head note that this case dealt with
certificates of previous convictions and their value when tendered in
civil proceedings. Whatever the finding of the Court was, I am of the
view that the common law position stated in that case has been
overridden by a legislative enactment in this case, This Court must
in my view give effect to the laws of Swaziland at is finds them. The
intention in my view is that Parliament intended that a certificate
of previous conviction for an infraction of the electoral law can be
admitted in evidence to support an application for a
disqualification. I however note that this is a question that is not
properly raised for there is no certificate of a conviction that is
being relied upon for the disqualification.
Regarding
prayers a), b) and c) of the Notice of Application, I am of the
considered view that there is a paucity of evidence which could
support the drastic Orders sought. It should always be remembered
that an election cannot and should not lightly be set aside. The
guiding principle is that elections can only be set aside on
substantial grounds shown and
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}
the
public interest demands that elected members of Parliament, as is the
1st Respondent . herein, must not be vexed with futile litigation
-.See SNYMAN VS SCHOEMAN AND ANOHER 1949 (2) SA 1 at 5 and MORGAN AND
OTHERS VS SIMPSON AND ANOTHER 1974 (3) ALL ER 722.
1
find it apposite, in this regard, to cite with approval, the
following cases as enumerating the principle admirably. In THE
ELECTION FOR THE DARWEN DIVISION OF MNCASHIRE (2 T.LR 220), the
following extract appears; -
"The
Legislature, though determined that there should be the fullest
opportunity, within certain limits, of questioning elections, had
thought it right that they should not be questioned without some
guarantee of bona fides of the Applicant as 'regards his belief that
there was a ground for upsetting the election. "
In
DE VILLLIERS VS LOUW 1931 AD (supra) at page 264 Curlewis J, summed
up the applicable position, having had due regard to principles
enunciated in English law cases, as follows; -
"We
may therefore conclude that the Legislature did not desire an
election to he set aside lightly; it regarded it as a matter in which
the Court should act with particular caution and circumspection; no
matter how grave the mistake or non-compliance, may be, the Court may
not declare an election void except in the event mentioned in the
section. From this we may infer that the principle which the
Legislature intended the Court to act upon in considering the
validity or invalidity of individual votes posed on a breach of the
Act or of the Regulations where the Legislature has not enacted what
effect of such, breach shall be, is that such breach, should not
invalidate the vote unless the breach be of such a nature as to
amount to a violation of a principle either in the Act or the
Regulations on which an election shall take place or a vote be
recorded, "
It
is clear that what should influence the Court in reaching such a
decision is that it is proved that the constituency did not in fact
have a fair and full opportunity of electing the candidate they might
have preferred. The sore heart, wounded emotions, failed projections
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}
and
shattered dreams of a loser, no matter how deeply and sincerely felt
cannot on their own be sufficient grounds for upsetting an election.
In
casu, it has not been shown how many votes the Applicant obtained
vis-a-vis the 1st Respondent; nor has it been shown that the ninety
persons were not only corruptly influenced to vote but that they did
vote for the 1st Respondent and how their votes affected the outcome.
It must, in this wise be shown, as correctly submitted by Mr Thwala
that but for their votes, the Applicant and not the 1st Respondent
would have been the successful candidate. In my view, nothing short
of the foregoing can suffice.
I
am of the view, in appreciation of the foregoing that the Applicant's
application should fail.- For the avoidance of doubt, the costs are
mulcted against the Applicant only. The 2nd and 3rd Respondents did
not file any opposition nor did they apply for an Order of costs in
their favour.
In
conclusion, I need to state the following for the record. This
judgement must not be construed as licensing candidates to bribe,
treat or unduly influence potential voters. This judgement must be
read and understood in full appreciation of its peculiar set of facts
and circumstances. No violence must therefor be done to the wording
and spirit of this judgement. It is also important to note that I
have dealt with this matter in this forum. My findings and
conclusions are therefor confined to the evidence and allegations
before me and should not be stretched beyond the limits of this case
and its peculiar circumstances. If the case were to be brought for a
criminal trial for instance, different conclusions may well be
arrived at.
Secondly,
the 1st Respondent ought to have contacted the office of the 2nd
Respondent to obtain guidance and advice, particularly in view of how
the Charity Organisation's noble cause was susceptible to
misunderstood but justified attacks. Candidates ought to confer with
and get an appropriate clearance from the 2th Respondent so that
incidences like the present are avoided.
Lastly,
I would like, in this judgement, to formally record my indebtedness
to Counsel on both sides, particularly Mr Thwala, who
consciensciously prepared for this case and used his industry to
alleviate this Court's burden. I note that generally, the standard of
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}
preparation
by some practitioners in this Court is abysmal. As a result, the
Court not only has to prepare and issue a judgement, but it also has
to go into intensive research on the parties' respective cases, which
is an unfair burden to place on a Court such as ours with no research
assistants. The Court is entitled to the assistance of Counsel, who
should come to Court ready to perform their role. Mr Thwala's
detailed and highly relevant heads of argument and his poignant
submissions are therefor appreciated and must be emulated by some
practitioners in this Court.
T.S
.MASUKU
JUDGE
