Shabangu and Others v Elections and Boundaries Commission and Others (805/2018) [2018] SZHC 169 (31 July 2018);

Search Summary: 

The General import gathered from the prayers in this                                            application is, among others, that the first respondent be                                                interdicted from restraining first and third applicants from                                    campaigning for elections and advocating policies and                                        programmes under the banner and manifesto of second                                                 applicant respectively.  The prayers are strenuously opposed.

 

 

IN THE HIGH COURT OF ESWATINI

JUDGMENT               

Case No. 805/2018

HELD IN MBABANE

In the matter between:

MBONGISENI CYPRIAN SHABANGU                   First  Applicant

SWAZI DEMOCRATIC PARTY                               Second Applicant

SANELISIWE TABABE DEBRA DLAMINI            Third Applicant

                   

AND

ELECTIONS AND BOUNDARIES COMMISSION First Respondent

PRIME MINISTER OF ESWATINI                           Second Respondent

MINISTER OF JUSTICE AND

CONSTITUTIONAL AFFAIRS                                  Third Respondent

MINISTER OF HOME AFFAIRS AND

IMMIGRATION                                                          Fourth Respondent

MINISTER OF TINKHUNDLA

ADMINISTRATION AND DEVELOPMENT           Fifth Respondent

NATIONAL COMMISSIONER OF POLICE           Sixth Respondent

ARMY COMMANDER: UMBUTFO ESWATINI

DEFENCE FORCE                                                      Seventh Respondent

PRINCIPAL SECRETARY IN THE MINISTRY

OF DEFENCE                                                              Eighth Respondent

ATTORNEY GENERAL                                            Ninth Respondent

 

 

Neutral citation:  Mbongiseni Cyprian Shabangu & 2 Others v Elections and Boundaries Commission & 8 Others [805/2018] [2018] SZHC 169 (31st July, 2018)

Coram:                M. DLAMINI, M. FAKUDZE and T. DLAMINI JJ

Heard:                 20th July, 2018

Delivered:            31st July, 2018

 

                             EX TEMPORE JUDGMENT

                                               

Civil            -        defective papers – First Applicant failing to make any prayers

Second Applicant only makes prayer under Interim Relief but fails to pray for an order under Final Relief – Third Applicant makes prayers under both interim and final relief but has no Founding or properly drafted supporting affidavit for his case – application dismissed with no order as to costs

Summary:           The General import gathered from the prayers in this                                           application is, among others, that the first respondent be                                               interdicted from restraining first and third applicants from                                    campaigning for elections and advocating policies and                                        programmes under the banner and manifesto of second                                                 applicant respectively.  The prayers are strenuously opposed.

The Application

 

[1]     The Applicants, namely, Mbongiseni Cyprian Shabangu, First Applicant; Swazi Democratic Party, Second Applicant; and Sandisiwe Taxable Debra Dlamini, Third Applicant, have filed an urgent Application and are praying for the following:-

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PART A: INTERIM RELIEF

 

  1. Pending the final determination of the relief sought in Part B of this Application, including any Appeal in respect thereof:
    1.           Interdicting the respondents from preventing the third Applicant,      and any other registered voters who choose to run as candidates    for election

to the House of Assembly, in canvassing for votes from exercising their constitutional rights to freedom of conscience, expression, and association;

 

  1.      Interdicting the respondents from preventing the third Applicant and      any other registered voters who choose to run as candidates for election      to the House of Assembly, in canvassing for votes from:

 

  1. stating publicly and motivating:-

 

  1. their social, economic, political  and cultural beliefs, opinions and convictions;

 

  1. their views and opinions on social, economic, political and cultural issues and matters in local, national, regional and international spheres

 

 

  1. their views and opinions on social, economic, political and cultural priorities, and the policies and programmes that should be implemented to give effect to these priorities, at the local, national, regional and international levels;

 

  1. their views and opinions on the government’s performance in the international, national and local spheres;

 

 

  1. calls for non-violent and orderly social, economic, political and cultural change;

 

  1. whether or not they are members or supporters of any political, religious, cultural, developmental, labour or commercial  organisations or entities and the reasons for these positions; and

 

 

  1. their views and opinions on other candidates contesting elections and the principles, policies and programmes for which they stand;

 

  1. holding public and private meetings, press conferences and interviews with the media (in all forms), for as long as the candidate for election considers it necessary and appropriate to do so, in order to convey their views, policies and programmes to voters and general public;

 

  1. publicly associating themselves with any political party by:

 

 

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slogans; and

 

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  1. canvassing for, and receiving, financial and logistical support from any political party; and

 

  1. canvassing for, and receiving, the endorsement of any      political party;

 

  1. Interdicting the respondents from preventing the second applicant, and  any other political party which chooses to sponsor and support any    candidate for election to the House of Assembly from:

 

  1. publicly identifying and expressing support for, their members who are running for public office;

 

  1. conducting the advocacy and public awareness activities contemplated by section 8(2) of the Elections Expenses Act  9 of 2013 (“the Elections Expenses Act”);

 

 

  1. seconding party members to constitute a candidate’s campaign team, as contemplated by section 3(3) of the Elections Expenses Act, 2013 read together with section 40(2) of the Elections Act 10 of 2013 (“the Elections Act”);

 

  1. making voluntary donations to any party member who is a nominated candidate, in terms of section 7(1) of the Elections Expenses Act, 2013; and

 

 

  1. campaigning across all parts of the country in support of candidates for election;

 

 

PART B: FINAL RELIEF

 

  1. Declaring that the third applicant and any other registered voters who choose to run as candidates for election to the House of Assembly, in canvassing for votes may exercise their constitutional rights to freedom of conscience, expression, and association by:

 

  1.      stating publicly and motivating;

 

  1. their social, economic, political, and cultural beliefs, opinions    

and convictions;

 

  1. their views and opinions on social, economic, political and cultural issues and matters in the local, national, regional and international spheres;

 

  1. their views and opinions on social, economic , political, and cultural priorities, and the policies and programmes that should be implemented to give effect to these priorities, at the local, national, regional and international levels;

 

 

  1.  their views and opinions on the government’s performance in          the international, national and local spheres.

 

  1. calls for non-violent and orderly social, economic, political and cultural change;
  2. whether or not they are members or supporters of any political, religious, cultural, developmental, labour or commercial organisations or entities, and the reasons for these positions; and

 

  1. their views and opinions on other candidates contesting the elections and the principles, policies and programmes for which they stand;

 

  1. holding public and private meetings, press conferences and interviews with the media (in all its forms), for as long as the candidate for election considers it necessary and appropriate to do so, in order to convey their views, policies and programmes to voters and the general public;

 

  1. publicly associating themselves with any political party by:

 

 

  1. wearing and displaying its colours, symbols and/or slogans; and
  2. advocating its policies and programmes;

 

  1. canvassing for, and receiving, financial and logistical support from any political party; and

 

  1. canvassing for and receiving, the endorsement of any political party;

 

  1. Declaring  further that in addition to the rights as set out in paragraph 3   above, any candidate for election to the House of Assembly is entitled to   sponsorship          and support from any political party which he or she is a      member, which may include such party:

 

  1. publicly identifying, and expressing support for, the members who are running for public office;

 

  1. conducting the advocacy and public awareness activities contemplated by section 8(2) of the Elections Expenses Act, 2013;

 

 

  1. seconding party members to constitute a candidate’s campaign team, as contemplated by section 3(3) of the Elections Expenses Act, 2013 read together with section 40(2) of the Elections Act, 2013;

 

  1. making voluntary donations to any party member who is a nominated candidate, in terms of section 7(1) of the Elections Expenses Act, 2013; and
  2. campaigning across all parts of the country in support of candidates for election.

 

  1. Directing that the costs of this application are to be paid jointly and severally      by the respondents; and

 

  1. Granting such further and/or alternative relief as may be appropriate.

 

 

 

PRELIMINARY OBSERVATION BY THE COURT

 

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  1. APPEARANCES OF THE PARTIES IN THE RELIEFS SOUGHT

 

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[4]     Counsel for the First and Third Applicants stated that this hurdle can be dealt with if  reliance is placed on paragraph 6 of the Founding Affidavit where the First Applicant establishes its legal capacity and states that:-

                    “6I bring this Application in the following three capacities:

  1.  First, in my personal capacity as an individual who is                            eligible to vote in the elections that are to be held later this                      year.

 

  1.            Second, as an individual who is eligible to run as a                         candidate in the  election that are to be held later this year;               and

 

  1.            Third, in my capacity as a member and office bearer of a                political party, representing all other members of                              SWADEPA.”

 

 

[5]     First and foremost, it must be pointed out that there was only one set of Founding Affidavit in this application.  It was deposed to by the First Applicant.  The Second and Third Applicants merely filed supporting Affidavits.  From the above underlined and bolded words at para [4], taken from the First Applicant’s Founding Affidavit, it is abundantly clear that the First Applicant advanced his own case in his Founding Affidavit.  This view is further fortified when one reads the entire Founding Affidavit.  Nowhere does the First Applicant aver to the Second and Third Applicants’ case in his Founding Affidavit.  It is appreciated that the Second and Third Applicants filed Supporting Affidavits to the First Applicant’s Founding Affidavit.  This was an unnecessary exercise as Applicant referred to assertions pertaining to himself albeit under three different hats, namely as an individual who is entitled to vote, be voted and as a member of Second Applicant.  For this reason alone, the submission that paragraph 6 of the First Applicant’s Founding Affidavit should be considered as evidence with regards to Second and Third Applicants cannot hold. 

 

[6]     This court is very much alive to the principle governing affidavits.  It was well articulated in Leith NO v Fraser 1952 (2) SA 33 (O) at 36B where the court held, “A notice of motion could in a proper case be supported by an affidavit by one not a party to it, if he were in a position to provide the necessary material to support the claim.”  Smit J proceeded to highlight in Leith, “The fact that Heath states that he ‘presents this petition in his own name’ cannot in the circumstances be said to mean that the application is made in his own name because the notice of motion is clearly in the name of both applicants and the very petition that Heath signed indicates in the heading thereof, that it is made in the matter of both the applicants against the respondent.”  

 

[7]     Having espoused the above guiding principle the court in Leith then explained, “Even if this were a petition the heading indicates that it is brought in the name of both applicants and that, coupled with Heath’s statement that he is acting with the full knowledge and consent of Leith would on the authority of Kent v Beamish and Another, 1912 WLD 129, sufficiently disclose his authority to act as the latter’s agent. 

 

[8]     Turning to the present application, the deponent to the founding affidavit (First Applicant) is not a party or an applicant to the present proceedings by reason that there are no prayers in the Notice of Motion by him.  However, could he be said to be a witness for or on behalf of the Second and Third Applicants?  The answer is a straight no by reason that the First Applicant (so to speak) has neither asserted in his Founding Affidavit that he is acting with the full knowledge or authority of the Second and Third Applicants as per the ratio decidendi in Leith’s case nor is the Founding Affidavit couched in such a manner as to be reasonably inferred to refer to the Second and Third Applicants’ case. 

 

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11. Ms. Dlamini is an ordinary member of SWADEPA, as well as a member of the executive committee of SWADEPA’s Women’s League. She brings this application in her personal capacity as an individual  who

11.1   is eligible to vote in the elections that are to be held later this year; and

11.2 intends to run as a candidate for election to the House of Assembly in the election that are to be held later this year.”

 

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  1.  INTERIM RELIEF

 

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M. FAKUDZE J

 

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M. DLAMINI J

 

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T. L. DLAMINI J

 

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For the First and Third Applicants      :    P. Hathorn SC instructed by SA Nkosi & Co.

For the Second Applicant           :    J. Berger instructed by SA Nkosi & Co.

For the Respondents                            :    S. Khumalo – Attorney General’s Chambers