HIGH COURT OF SWAZILAND
CHIEF ELECTORAL OFFICER
Case No. 2481/2003
S.B. MAPHALALA - J
the Applicant MR. SIMELANE
the Respondent MISS MKHWANAZI
to the Attorney General's Chambers)
before court is an application brought under a certificate of urgency
for an order inter alia that the primary elections held on 20th
September 2003, at Ekuvinjelweni Umphakatsi should be declared null
and void for want of compliance with certain provisions of the
Elections Order No. 2 of 1992. That any steps or all
taken pursuant to the elections outcome be suspended. Further, that
the primary elections be commenced de novo to enable all voters to
exercise their right to vote.
to the Applicant in his founding affidavit on or about 20th September
2003, and at Ekuvinjelweni where he was contesting elections under
that Umphakatsi for the position of Member of Parliament.
voters are required to make a cross on the photograph of the person
they want to vote for and thereafter to fold and drop the ballot
paper into the ballot boxes provided at the polling station. He
annexes "EJ1" being Form No. 14 indicating the list of
candidates that have been nominated to contest in the election.
could be expected, not all voters were fully aware of what was
expected of them. Some did not indicate the choice of their candidate
by making the cross on the photograph, but the cross was made below
the photograph of the candidate, as appears on annexure "EJ1".
As such those ballots were then to be dealt with in terms of Section
46 of the Election Order of 1992.
said Section provides as follows:
46: The counting officers shall put aside for the decision of the
returning officer all ballot papers.
apparently do not bear the officer mark, or
paragraph 8, 9 and 10 of his founding affidavit the Applicant avers
that with the doubtful ballot papers, the Returning Officer is
required by Section 47 to scrutinize such ballot papers with the
candidates, or their agents and to consider any objection or
arguments put forward in connection with the doubtful ballot papers
then the Returning Officer is to decide whether he rejects the ballot
papers or having accepted it for which candidate or candidates the
vote is given. In casu, it is the Applicant contention that the
doubtful ballot papers were not dealt with in terms of Section 48 (1)
in that doubtful ballot papers were not crossed on the photograph of
one of the contestants, namely Mr. Benjamin Mhlanga were accepted.
However ballot papers
him and other contestants which were crossed below the photograph
Applicant's main contention therefore is that the Returning Officer
did not proceed in terms of Section 48, in that he accepted ballot
papers for Benjamin Mhlanga when he should have rejected the same.
48 (1) states as follows:
Returning Officer shall reject and not count a ballot paper. a) which
is marked that he cannot determine for which candidate a vote was
intended to be given.
paragraph 11 and 12 of his founding affidavit the Applicant further
avers that as per the Returning Officer's decision on doubtful ballot
papers not crossed on the photograph, having proceeded with the
matter in terms of Section 47, he including the other contestants
were informed that such ballot papers will be rejected. Ballot papers
in his favour were similarly rejected. However, as aforesaid those in
favour of Benjamin Mhlanga were considered much against the decision
of the Returning Officer in dealing with ballot papers of this
he continues in argument, if the ballot papers are marked below the
photograph and the Returning Officer's decision being that he will
reject such then that decision should apply to all candidates without
exception. The defect is the same, to then consider those ballot
papers in favour of other candidates, clearly prejudices the other
candidates including the Applicant. The rule should have been the
same to apply to all the candidates.
second ground in which the Applicant challenges the outcome of the
primary elections conducted on the 20th September 2003, is found at
paragraph 13, 14 and 15 of his founding affidavit.
the challenge is that potential voters were also excluded on the
basis of an error on the certificate of registration of voter. There
were discrepancies between the voter's chief code. For a number of
voters their registration certificate indicated that
code for the chief is 001 yet the correct code is 111. Based on this
discrepancy, they were turned away. Some left without voting. They
were denied the right to vote through no fault of theirs. The
Applicant annexes "EJ2" and "EJ3" being copies
showing the discrepancies on the voter registration certificates.
not all the voters left, those who insisted upon voting were
eventually allowed to do so. They were told not to deposit their
ballot papers into the ballot boxes, but these were put into two
envelopes. According to the Applicant this was a violation of Section
19 of the Election Order, in that an envelope cannot serve the same
purpose as that of a ballot box.
Applicant avers that the ballot papers which were placed in envelopes
should have been counted. The Returning Officer told them that they
will not consider them. This was unfair or even amounted to fraud on
the voters who were made to believe that they have voted when in fact
their votes will not be considered. In this regard the Applicant
filed confirmatory affidavit of those voters whose ballot papers were
placed in an envelope (see "EJ4" and "EJ5").
paragraph 18, 19 and 20 the Applicant alleges urgency and that he
cannot be afforded substantial redress at a hearing in due course.
ease of reference annexures "EJ1", "EJ2" and
"EJ3" (being the ballot paper with the pictures of the
candidates; certificate of registration of voter 386489/2003 and
certificate of registration of voter no. 386414/2003, respectively),
will form part of this judgement.
opposition the answering affidavit of the Chief Electoral Officer Mr.
Robert Thwala is filed of record.
the defence put forth when dealing with doubtful ballot papers, is
that the Returning Officer acted in accordance with the relevant
provisions of the Elections Order No. 2 of 1992.
to Section 46 of the Election Order No. 2 of 1992 the doubtful ballot
papers were put aside by the counting officer for the decision of the
the second challenge it is the Respondent's answer that voters were
never at any stage turned away. The Respondents' version of events is
that voters were never at any stage turned away. Certain voters came
with tendered ballot papers, and in terms of Section 34 (3) of the
Election Order No. 2 of 1992, these are not kept in a separate
envelope. There was therefore compliance with the law in putting the
tendered ballot papers in envelopes. These ballot papers are not to
be put into ballot boxes. Section 45 of the Election Order No. 2 of
1992 which provides for the counting of votes, only makes provision
for the counting of ordinary ballot papers. There is no mention of
the counting of tendered ballot papers which are kept in a separate
envelope. This according to the Respondent presupposes that they are
not to be mixed with the ordinary ballot papers, hence should not be
the matter came for arguments counsel filed very useful Heads of
Argument for which I am grateful.
are two issues for determination in this case viz i) whether there
was violation of Section 47 and 48 of Act No. 2 of 1992 (the manner
doubtful ballot papers were treated by Returning Officer); and ii)
whether there was violation of Section 32 of Act No. 2 of 1992
(tendered ballet papers were incorrectly issued to voters).
shall proceed ad seriatum.
Whether there was violation of Section 47 and 48 of Act No. 2 of 1992
(the manner in which doubtful ballot papers were handed by the
47 of Act No. 2 of 1992 reads as follows:
officer's decision on doubtful ballot papers.
to Section 48, the Returning Officer shall, with such candidates or
their agents as may desire to do so, scrutinize a ballot paper put
aside for his decision, and shall, after considering any objections
or arguments put forward in connection there with by any candidate or
his agent, decide:
he will reject it, or
accepted it, for which candidate the vote is given" (my
to the Respondent what happened in casu is that in terms of Section
47 of the Act the Returning Officer together with the candidates or
their agents scrutinized the doubtful ballot papers, which were put
aside for his decision and he considered the views and objections of
the candidates or their agents. However, contends the Respondents,
the Returning Officer in terms of Section 47 of the Act, is vested
with the discretion to decide whether or not to accept the doubtful
ballot papers. It is in the exercise of this discretion that the
Returning Officer rejected certain ballot papers. In this regard
though I tend to agree with Mr. Simelane 's interpretation of the
Section that the Returning Officer in dealing with doubtful papers
has no sole discretion as he has to do so with the candidates or
their agents, and he must consider any objections or arguments and it
would appear in casu the candidates were informed that certain ballot
papers will be accepted and other are to be rejected. The doubtful
ballot papers which were in favour of Benjamin Mhlanga were
considered notwithstanding that similar doubtful papers for other
candidates the Applicant included which were marked below were
rejected. The doubtful ballot papers in favour of Benjamin Mhlanga
were considered when the general rule as agreed by the candidates and
their agents was that such ballot papers will be rejected.
to Baxter, Administrative Law at 408:
involves a degree of judgment and choice and the extent to which
discretionary power is conferred on a public authority the authority
is free to decide how it should act. This does not mean that a public
authority possessing discretionary power is free to act as it
pleases. Even though discretion entails a choice, the choice is
always a limited one". ( my emphasis).
Banetoo Bros vs National Transport Commission, 1973 (4) S.A. 667 (N)
at 685 A
D the court said:
am for the moment concerned with what is meant by the expression
"apply its mind to the matter", certain aspects of which
have already been covered by this judgment. It seems to me essential
that the tribunal is essentially obliged to consider all relevant and
material information placed before it. To pay mere lip service to
this obligation is not sufficient, just as it would be a dereliction
of duty to hear representations which are pertinent, and then to
ignore them. The problem arises whether the court is concerned with
the degree of importance which the tribunal attaches, in the exercise
of an honest judgment, to the relevant considerations. Take a case
for example, where a factor which is obviously of paramount
importance is relegated to one of insignificance, and another factor,
though relevant, is given weight far in excess of its true value.
Accepting that the tribunal is the sole judge of the facts, can it be
said that it has in the circumstances postulated properly applied its
mind to the matter in the sense required by law? After much anxious
considerations I have come to the conclusion that the answer must be
in the negative" (my emphasis).
observations were made in North West Townships (Pty) Ltd vs The
Administrator, Transvaal 1975 (4) S.A. 1 (T) at 86 where the court
last-mentioned possibility has been held, in other English and South
African cases, to include capriciousness, a failure, on the part of
the person enjoined to make the decision, to appreciate the nature
and limits of the discretion to be exercised; a failure to direct his
thoughts to the relevant data or the relevant principles, reliance on
irrelevant considerations, an arbitrary approach, and an application
of wrong principles" (my emphasis).
casu the ballot papers are marked below the photograph and the
Returning Officer's decision being that he will reject such. Then
that decision should apply to all candidates without exception. The
defect is the same, to then consider those ballot papers in favour of
other candidates, clearly prejudices the other candidates including
the Applicant. The rule should have been the same to apply to all the
the above reasons therefore I would rule that Section 48 has not been
complied with and thus vitiating the primary elections conducted on
the 20th September 2003, at Ekuvinjelweni.
there was violation of Section 32 of the 1992 Act (whether tendered
ballet papers were incorrectly issued to voters).
my view the first point addressed above (i) disposes of the matter,
but for the sake of completeness I shall proceed to determine the
second question I have mentioned earlier on in this judgment.
considered the facts presented in the affidavits of the parties and
the submissions by counsel, I am inclined to agree with the
Respondents in this regard. Certain voters came with tendered ballot
papers; and in terms of Section 34 (5) of the Election Order of 1992,
these are to be kept in a separate envelope. There was therefore
compliance with the law in putting the tendered ballot papers in
envelopes. These ballot papers are to be put into the ballot papers.
45 of the 1992 Act which provides for the counting of votes, only
makes provision for the counting of ordinary ballot papers. There is
no mention of the counting of tendered ballot papers.
agree with Miss Mkhwanazi's submission that the fact that tendered
ballot papers are to be kept in a separate envelope presupposes that
they are not to be mixed with the ordinary ballot papers hence should
not be counted.
the other aspect of the matter that voters were denied to vote I am
unable to hold on the evidence before me that this actually happened.
on this ground the Applicant would not succeed.
order. In the result, an order is granted in terms of 2.1 and 4 of
the notice of application.