Court name
High Court of eSwatini
Case number
Civil Case 2756 of 2003

Gina v Attorney General and Others (Civil Case 2756 of 2003) [2003] SZHC 113 (05 December 2003);

Law report citations
Media neutral citation
[2003] SZHC 113
Coram
Annandale, ACJ









SWAZILAND
HIGH COURT


HELD
AT MBABANE CIVIL CASE NO. 2756/2003


In
the matter between:


SANELE
GINA Applicant


and


THE
ATTORNEY GENERAL 1st Respondent


TIMOTHY
MYENI 2nd
Respondent


ROBERT
THWALA N.O. 3rd Respondent


Coram ANNANDALE,
A

C
J


For
Applicant Advocate L.M. Maziya


(Instructed
by Mabila Attorneys)


For
First and Third Respondents Ms S. Maseko


For
Second Respondent Advocate D. Smith


(Instructed
by Robhson Bertram Attorneys)


JUDGMENT


(05/12/2003)


Following
the recent Parliamentary elections in Swaziland, yet another outcome
is sought to be challenged.

This
time, the complaint is again that fraudulent voters registration
papers tainted the election process, initially at the Moyeni
Umphakatsi, later in the Lubuli Inkhundla.


2


What
the applicant presently seeks to have done is to obtain a mandamus
compelling the Attorney General to institute proceedings against he
winner of the elections, the second respondent in terms of Section 28
of the Establishment of Parliament of Swaziland Order, number 1 of
1992. The application is brought as a matter of urgency, seeking the
directive either forthwith or within such period as the court deems
fit. It follows on the heels of an earlier Petition by the present
applicant in terms of Section 7 of the Parliament (Petitioner's(sic))
Act number 16 of 1968, which was removed from the roll, with costs,
at the end of October 2003.


At
the onset of the hearing, Advocate Maziya, appearing for the
applicant, requested he matter to be stood down in order to try and
find a Government! Gazette which would have contained corrigenda to
the initial Gazette in which King's Order

-
in
-Council
number 1 of 1992 was first published. He informed that the original
text referred to a non-existent "section 10(e)"under
section 28(2)(b) of the Act, as published in Government Gazette
Extraordinary, volume 30, number 918 dated the 16th December 1992.
The published collection of the Statutes of Swaziland, on the other
hand, refers in section 28(2)(b) to the classes of persons

as
mentioned in section 28(l)(b) and (c), not to a section 10(e). No
such corrigendum was found by Mr. Maziya.


The
basis of the application rests on an allegation that statutory
offences in terms of section 64(2) and 67 (being statutory offences
relating to undue influence of a voter and corrupt practices at
election proceedings) of the Elections Order, No. 2 of 1992, were
committed, resulting in the winning of the election by the second
respondent, which the applicant wants to have challenged on his
behalf by the attorney General (first respondent) and the basis of
his locus standi as determined by section 28 of Order No. 1 of 1992.


Section
28 reads as follows, according to issue 2, Volume 3, of the Statutes
of Swaziland:

"28.
(1) The High Court shall have jurisdiction to hear and determine any
question whether -


3


(a) Any
person has been validly elected a Senator by the members of the House
of Assembly;


(b) Any
person has been validly elected as an elected member of the House;


(c) Any
person who has been elected as President or Deputy President of the
Senate or as Speaker or Deputy Speaker of the house was qualified to
be

so
elected.


(2) An
application to the High Court may be made for the determination of
any question -


(a) under
subsection (1) (a), by any elected member of the House of Assembly or
by the Attorney General;


(b) under
subsection (1) (b) and (c), by any Senator or elected or nominated
member of the House, as the case may be, or by the Attorney General.


Mr.
Maziya's initial argument is that if the Gazette is anything to go
by, there is nothing to prevent the applicant from bringing his
application in person, without having to seek the Attorney General's
intervention. Yet, the application seeks the Attorney General to act
in his capacity of one of the three classes of persons bestowed with
locus standi under section 28(2)(b) of the 1992 Order. The self
destructive nature of applicant's contention results in the court
being required, under a prayer for further and alternative relief, to
research the applicant's case and determine if indeed the obvious
mistake in the Gazette has been corrected and if the Court cannot so
find, to then order that the applicant is entitled to challenge the
outcome of the election in eo nomine, disregarding the statutes of
Swaziland's version of Section 28(2)(b) of the Order. The practical
consequence is then said to be that without having to start afresh
yet again, the court is to now declare the elections null and void,
set it aside and order new elections to be conducted.


The
fundamental problem with this approach by the applicant is that he
has come to court, for the second time, to seek an order setting
aside the parliamentary elections in the voting district or Inkhundla
where he was the losing candidate. In the event that


4


the
court either does not order the attorney General to bring the matter
on his behalf,

as
he prays, or does not already now set the elections aside, the court
is then enjoined to establish grounds for his case and meet him
either way. He effectively comes to court, places the ball in the
court's hands and says that he does not have an answer to his
problem, it is up to the court to find it for him. The approach is
not helpful to the court at all. This in itself could be regarded as
sufficient justification to dismiss the application outright as our
law does not require the court to establish an applicant's case for
him - he is to do so himself. It also is not the manner in which an
opposing party is required to outguess an applicant's case as is the
present case - an applicant is required to set out his case on the
papers before court and that is the case which the opponent is to
meet.


However,
I shall procede to decide on this matter on the assumption

that
the initial publication in the Gazette of the Establishment of
Parliament Order No. 1 of 1992, contained a patent and obvious error
by referring to a non existent subsection 10(e) in section 2S(2)(b),
and that the published statutes of Swaziland, even though it does not
refer to a corrigendum in the XXX correctly reflects the position of
loeus standi in judicio as quoted above, namely that the validity of
the election of an elected member of the House (Parliament) may be
brought to the High Court for determination by any elected or
nominated member, or by the Attorney General.


Both
the first and second respondents raised preliminary points in law,
objecting to the application. At the hearing of this matter, the
merits were not dealt with and I therefore will not detail the cases
of the parties any more than is necessary for the present purpose.


One
such instance is in regard to the objection in limine by the Attorney
General, whose intervention is sought to be ordered. Nowhere in the
body of applicant's papers is there any indication whatsoever that he
has sought the assistance of the Attorney General, who improperly
would have refused to come to his rescue. At bare minimum, such a
basic display of courtesy towards the office of the man whose help he
seeks, would have been mentioned in the founding affidavit. If
intervention was sought and for some reason refused, it also would
have been mentioned, certainly so, as it would be crucial for
applicant to be able to state that the first respondent


5


improperly
applied his mind and failed to exercise his discretion as he should
have done.


Applicant's
counsel also could not confirm any approach to the first respondent
to seek his intervention, which may have been made by the applicant.


Even
so, that is not the point taken by the first respondent, but in a
somewhat clumsily worded notice, it is said that plaintiff/applicant
is not entitled to representation by the Attorney General. As first
reason, it is said that the Attorney General is part of the executive
arm of Government and already represents the third respondent, the
Chief Electoral Officer. The Attorney General states that it will be
anomalous to represent both applicant and the third respondent,
further, that only once elected to parliament, a member may be
entitled to representation by the Attorney General on matters done by
the member in his official capacity.


The
second part of the objection is that section 91 of the Swaziland
Constitution causes the Attorney General to be strictly

an
attorney for Government, not private individuals. Section 91 of the
1968 Constitution, as per the published statutes of Swaziland, holds
that the office of the Attorney General shall be a public office,
further that he may advise the King on legal matters. The remainder
of the section relates to criminal matters, which are exercisable by
the Director of Public Prosecutions since 1973. Although I do not
read into that section the interpretation attached to it by the
Attorney General, I also do not read into it that a private
individual, like the applicant (or plaintiff as referred to at
diverse places in the papers before me) has any entitlement to be
represented by the office of the Attorney General. This equally
applies in respect of section 28 of the Establishment of Parliament
Order of 1992, which also not bestowed any such entitlement on a
citizen.


Section
28 of the Establishment of Parliament Order of 1992 bestows locus
standi on the Attorney General but it does not regulate any procedure
to be followed by someone like the applicant, who seeks the umbrella
of the Office to litigate on his behalf. The Act is tacit in that
regard. There is also no legislation that I am aware of, that gives
any guideline to the Attorney General as to how such a request is to
be dealt with, should it be made.


6


Applicant's
counsel was very blase about the objection raised in limine by the
first respondent. He argued that there is no inconsistency as alleged
and that there is nothing wrong if Parliament confers such a duty on
the Attorney General.


The
problem with this argument is that there may very well be a conflict
of interest if

the
Attorney General appears on behalf of both the applicant, a private
citizen, and also for the Chief Electoral Officer, third respondent.
The application itself repeatedly contains allegations against the
third respondent, and his subordinates, concerning the manner in
which the elections were conducted and the nomination process, all of
which culminated in the winning of the elections by the second
respondent and the non-election of the applicant. The third
respondent is alleged to be accountable for these problems.


The
further problem with applicant's argument is that Parliament did

n
ot
confer any duty on the Attorney General at all, insofar as
challenging an election goes. All it did was to confer the ability to
challenge it, equally so with an elected or nominated member of the
House. It is incorrect to say that the Attorney General must
intervene and challenge the outcome of an election.


Section
28 provides no authority to the applicant to insist that the Attorney
General must come to his aid. It does not say that the Attorney
General must consider his request and act upon it. The main
difficulty facing the applicant is thus his own locus standi in
having the Attorney General compelled to act on his behalf. He
certainly cannot rely on section 28, under which the Attorney General
obtains authority to litigate in an election matter. Applicants
counsel did not refer the court to any authority at all under which
the Attorney General is to be compelled to act for the losing party
in a contested election, such person remaining an ordinary private
citizen.


The
detriment to the application is further compounded by the wording of
section 28 of the Order which reads that an application MAY be made,
and not MUST be made by the specified persons. The use of the word
MAY denotes a discretion inferred on the Attorney General. The Order
as tacit as to how such a discretion is to be exercised. As
mentioned, the applicant does not state that he has approached the


7


Attorney
General, who refused to bring the application on his behalf, or that
the Attorney General refused to entertain his request for such, or
that indeed the Attorney General made any decision at all, that
pertains to his application. Yet, he seeks a mandamus to compel the
Attorney General to do so. There is no averment that the Attorney
General improperly exercised his discretion, or refused to hear
applicant or acted improperly. What is sought in fact is that the
discretion of the Attorney General is to be exercised by the court,
instead of it being done by the Attorney General.


I
have sympathy with the applicant's dilemma. On the one hand, the
Establishment of Parliament Order which regulates the locus standi of
persons who may come to the High Court and lay challenge to the
outcome of an election, does not bestow legal standing to an
aggrieved loser of an election. On the other hand, it does bestow
legal standing to a specifically mentioned class of people who may do
so, namely the Attorney General, and elected or nominated members of
the House. If

t
hey
chose not to come to his assistance, he ends up in dire straits, as
presently. The only way to salvage the dilemma is what he now wants
to have done, for the court to step in and compel a party with legal
standing conferred by the Order, to do so on his behalf. However, the
one authorised person he chose to do so, the Attorney General,
objects and says he cannot do so as he is government's attorney,
already representing one respondent apart from himself, further that
the applicant qua ordinary citizen is not entitled to representation
by Government's Attorney.


The
fact that remains is that the legislature did not include in section
28 either a voter or a losing candidate amongst the people that have
the standing to challenge the outcome of an election, i.e. whether
"any person has been validly elected as an elected member of the
House". The Parliament Petitions Act, 1968 (Act 16 of 1968) had
it otherwise. Therein, section 8(a) provided that a person entitled
to vote in the election to which a petition relates, was able to
present a petition to the court to decide a question relating to the
valid election of a member of the House. Whether that act was
repealed, expressly or impliedly, is not the question to decide at
present. Section 59(2) of the Establishment of Parliament Order, 1992
nevertheless reads; that:


8


"All
existing laws shall continue to operate with full force ana' effect
but shall

be
construed with such modifications, qualifications and exceptions as
may be necessary to bring them into conformity with this Order. "


Thus,
even if it was so that it could be argued that the 1968 Act was not
repealed at all, the applicant still cannot overcome the hurdle of
the 1992 Order, Insofar as locus standi is concerned. The legislature
closed the door on him. Furthermore, it failed to provide any
mechanism as he now seeks, to have the Attorney General compelled to

come
to his rescue.


Accordingly,
on this point also, he cannot be found to be able to succeed in
having his application heard on the merits.


Further
points in limine were raised by the second respondent, which

I

shall not deal with in detail, due to the abovementioned two grounds
which already are detrimental to the application. I will deviate from
the stated grounds as set out in the second respondent's answering
affidavit and responded to by the applicant, and limit it to what was
argued in court.


One
issue that arises from the affidavits that needs to be addressed at
the onset is the outcome of the initial petition. It is incorrect for
the second respondent to take the position that the court considered
the matter and dismissed it on merit.. Due to various deficiencies in
the matter, such as it being brought effectively ex parte and without
setting out in which manner and by when it may be opposed, it was
removed from the roll and not dismissed, with costs. Quite correctly
so, second respondent's counsel did not argue the issue of estoppel,
also not whether the application is premature due

to
non-finalisation of a police investigation against the second
respondent.


The
second respondent's counsel argued various further points in limine,
which I will not fully deal with, in light of the above. Advocate
Smith holds a different interpretation of section 28 of the Order
from what I read the Order to say. His argument is that it impacts on
the qualifying aspects of a member, to be validly elected as an
elected member of the House, i.e. whether the member qualifies to
hold


9


office
or not. This contrasts with the wording of the Order, the relevant
part of which reads:


"(b) Any
person has been validly elected as an elected member of the House."


This
point does not affect the outcome of the matter and in itself is not
decisive. Advocate Smith raised a further issue which would come into
play in the hypothetical situation where the court would accede to
granting of the relief sought. Such a scenario would entail the
Attorney General to intervene, with the aim of causing the second
respondent found guilty of Election Fraud or fraudulently winning the
election due to irregularities caused by him. A factual dispute would
then have to be resolved. As matters now stand, on the basis of the
affidavits before court, a substantial dispute of facts is said to be
present, with a voter's roll allegedly improperly compiled and
whether fraudulent votes were cast or not. In turn, it is argued that
on the papers before court, from which a serious factual dispute
emerges, it cannot form a basis from which the Attorney General could
be ordered and forced to bring an application which in itself will be
unable to-be resiaved on the papers alone.


As
this argument in limine also does not determine the outcome of the
matter, I do not propose to decide it on its own merits. The same
applies to the question of urgency. Whether urgent or not, the
reasons for not granting the relief are as set out above and not
based on the question of urgency.


It
is therefore ordered that the application to compel the Attorney
General to intercede and come to the assistance of the applicant,
either forthwith or within such other period as may be ordered, to
institute proceedings against the second respondent in terms of
section 28 of the Establishment of Parliament Order, 1992 (King's
Order

-
in
-Council
No. 1 of 1992), be dismissed, with costs. Costs of counsel are

certified
to be in compliance with the provisions of Rule 68(2).


It
is further ordered that in the event that the applicant wishes to
bring |a further matter to court, relating to the same cause herein,
that the taxed costs of both related applications first be paid.


ANNANDALE,
A

C
J