the High Court of Swaziland
the matter between:
Attorney-General Dlamini and Others
Hull , C.J .
ATTORNEY GENERAL (formerly 3rd
respondent) as Applicant
FIRST RESPONDENT In person
THE THIRD RESPONDENT Mr. Simelane
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.
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.
relevant part of subsection (1) of that section provides as follows:
The High Court shall have jurisdiction to hear and determine any
question whether –
Any person has been validly elected as an elected member of the
Attorney General and the Chief Electoral Officer, as well of course
as Mr. Dlamini , were cited as respondents.
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repealed is correct.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.
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
. 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.
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.
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).
relevant parts of that subsection provide as follows;
The Returning Officer shall reject and not . count a ballot paper
which does not bear the official mark; or "......
which is unmarked ....".
Mncina's complaint was that although an objection was made on his
behalf, those votes were in the event counted when they should have
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.
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.
thrust of his submissions was that irregularities should not
disenfranchise voters if their intention is clear and those
irregularities do not affect the result.-
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
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).
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
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.
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
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
submitted, accordingly, that the result should be declared void.
do not consider it necessary to deal in detail with Mr. Dlamini's
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
see the Warrington Case (1869) 1 O.M. and H. 44.
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
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.
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.
his final submissions, the A ttorp.ey-3er.eral did express the view
that it was apparent from the scrutiny and the
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.