In the High Court of Swaziland
Civ. Case 1588/93
In the matter between:
The Attorney-General Dlamini and Others
CORAM : Hull , C.J .
THE ATTORNEY GENERAL (formerly 3rd respondent) as Applicant
THE FIRST RESPONDENT In person
FOR THE THIRD RESPONDENT Mr. Simelane
Mr. Mncina and Mr. Dlamini were, with two other persons, candidates in the Enkhaba area, for election to the House of Assembly, in the recent general elections. When the votes for that constituency were announced, Mr. Dlamini was declared to be the winner. At that time' 996 votes were counted in his favour and 982 for Mr. Mncina. The other candidates had less than 400 each.
Mr. Mncina then applied, by way of notice of application, to the High Court under section 28 of The Establishment of the Parliament of Swaziland Order, 1992 (King's Order-in-Council No 1 of 1992) to have the result set aside.
The relevant part of subsection (1) of that section provides as follows:
,"(1) 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".
The Attorney General and the Chief Electoral Officer, as well of course as Mr. Dlamini , were cited as respondents.
Several points in limine were dealt with at the outset. One was whether the proceedings should have been brought by way of petition. 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 end it is desirable, in my view, to reinstate the provisions formerly contained in the Parliament; (Petitions) Act 1968 (No. 16 of 196.8) and the rules that were made under it, if my conclusion that that Act was impliedly repealed is correct.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.
A fundamental issue of' locus standi in judicio arose however, some time after the hearing had begun, when Mr, Wilamaratne (on that occasion appearing for the Attorney General) drew the Court's attention to the fact that a corrigendum had been published to the Order, as printed in the Gazette. The effect of this, shortly put, is that whereas it had appeared up to that point in the proceedings that Mr. Mncina, as a candidate, had the standing to bring
them . personally (as is the case in South Africa and England), the true intent of subsection (2) of section 28 of the Order is that an application to the High Court for the determination of any question whether any person has been validly elected as an elected member of the House may only be made by the Attorney-General.
In the present instance, this issue was resolved when, by, consent, the Attorney-General took over the proceedings as applicant, and Mr. Mncina became a respondent. They then continued accordingly.
Mr. Mncina's complaint, as he had originally presented it, was an allegation that while the votes were being counted in the constituency on the night of the election, the Returning Officer Mr. Peter Mtetwa handed the Presiding Officer Mr. Simon Mbhamali an envelope containing ballot papers that were said to be those of civil servants who were to vote in the Enkhaba area. It is common ground, and I do not think I need to dwell on it, that these did not contain the official mark as required by section 48(1) of the 21ections Order, 1992 (King's Order-in-Council, No. 2 of 1992).
The relevant parts of that subsection provide as follows;
"(1) The Returning Officer shall reject and not . count a ballot paper
"(a) which does not bear the official mark; or "......
"(c) which is unmarked ....".
Mr. Mncina's complaint was that although an objection was made on his behalf, those votes were in the event counted when they should have been rejected.
By a consent order made on 26th November 1993, the Acting Registrar of the High Court was directed and authorised to conduct a scrutiny and to report to the Court by 9th December. This proved to be too short a time for the task. The time limit was extended. The scrutiny was to be held in the presence of the parties and/or their legal representatives and copies of her report were to be made available to the parties. The task was, in the event, finished on 17th December, at the end of the session.
When the hearing resumed in the new year, the Attorney-General referred to written submissions that he had prepared earlier on. 16th November and filed in court.
The thrust of his submissions was that irregularities should not disenfranchise voters if their intention is clear and those irregularities do not affect the result.-
The governing principle, which is referred to in his written submissions, is that the Court will not set aside an election because of mistakes or noncomplianee with, the provisions concerning the conduct of an election or the exercise of the right to vote, if it appears to the court that the election was conducted in accordance with the principles governing elections and that the mistake or
noncompliance does not affect the result . See Joubert The Law of South Africa Volume 8, page 374 at paragraph 455. The first of these two considerations can be put another way perhaps a little more pointedly, i.e. whether or not an election has really been conducted at all under the existing election laws. (See in this respect Woodward v. Sarsons L.R. 10 C.P. at pages 743-745).
The Attorney-General submitted that even if the ballot papers complained of were left out of account, that made no difference to the result, and that other irregularities that were disclosed in the Acting Registrar's report did not do so either. He stated that he had wished to see whether the
complaint that had been made in Mr. Mncina'a founding affidavits had affected the result. His view was that the complaint was invalid - I take him to mean "invalid" in the sense that it did not justify the setting_aside of_the result. He concluded by stating that he did not seek any of the orders prayed for in the application.
Mr. Simelane, for Mr. Mncina, said that the report was apparently accepted by all of the parties. He submitted that the scrutiny disclosed serious irregularities, referring specifically to the fact that when the Acting Registrar came to open the bags that were delivered to her pursuant to the consent order, 2 of them did not have seals as required by section 52(4) of the Election Order 1992 and also to the fact that the . count as. determined in the scrutiny differed from that on the night of the election. He conceded that in each case, the eventual winner was the same, but contended that it was apparent that the election had been conducted so badly that it could not be . said to have been held in accordance with the election laws.
Mr. Simelane al so sought to contend that the concept of a different result Included' not only the case where there would be a different winner, but also one in which the number of votes for each candidate differed.
He submitted, accordingly, that the result should be declared void.
I do not consider it necessary to deal in detail with Mr. Dlamini's submissions.
In my judgment, the proper course is to act on the Attorney General's submission and to refuse to grant the orders sought in the application. It has been said that to upset an election, a judge ought to be satisfied beyond all doubt that it was void and, in any event, that the return of a Member is a serious matter that: is not lightly to be set
aside: see the Warrington Case (1869) 1 O.M. and H. 44.
The original complaint that Mr. Mncina sought to advance in this case was that the ballot papers delivered to the returning officer and then to the presiding officer on the night of the elections were wrongly counted but it is common ground amongst the parties that even if they had been rejected, it would not have affected the result in as much as Mr. Dlamini would still have been the winner. The Attorney-General, who is, the person with locus standi in judicio, does not seek to contend that the other apparent irregularities that were found during the scrutiny vitiated the result and I do not consider that it has been shown that they did so. The report does refer to 11 ballot papers as having a seal that is not identified, but this matter has not been pursued and I do not consider that it can be properly held that there is real evidence ' of corrupt or illegal practice committed at the election. I am not able to accept Mr. Simelane's submission either that the expression "affecting the result" encompasses the situation where although the apparent winner remanins the same, the number of votes for each candidate charges.
The application is accordingly dismissed', and I shall so certify to the Honourable the Speaker of the House of Assembly. The effect of this decision is that the election result stands.
Mr. Simelane asks for his client's costs. I am not able to accede to that request. The application should have been brought at the outset by the Attorney General, if he saw fit to do so. For that purpose, Mr. Mncina should have made that request at the outset. The Attorney-General did take over and pursue the investigation of the complaint in these proceedings, after he had been made a respondent and had brought to the Court's attention the issue of locus standi. The proper order, in my view, is no order as to costs.
In his final submissions, the A ttorp.ey-3er.eral did express the view that it was apparent from the scrutiny and the
subsequent report that one of the deponents in the founding affidavits (though not Mr. Mncina himself ) had lied in that affidavit. That is not apparent to me. I do not propose to act upon it though it is open to the Attorney, if he sees fit, to pursue the matter elsewhere.