Court name
High Court of eSwatini
Case number
Civil Case 2783 of 2003

Makhubu and Chief Electoral Officer and Others (Civil Case 2783 of 2003) [2003] SZHC 114 (05 December 2003);

Law report citations
Media neutral citation
[2003] SZHC 114
Coram
Annandale, ACJ









THE
HIGH COURT OF SWAZILAND


Held
at Mbabane Civil Case No. 2783/2003


In
the matter between


MESHACK
MAKHUBU


And


THE
CHIEF ELECTORAL OFFICER & OTHERS


Coram Annandale,
A

C
J


For
Applicant Mr. M. Simelane


For
1st Exponder. Mr. P.R. Dunseith


For
2nd and rd Respondents Mr. Vilakazi


JUDGMENT


(5
December, 2003)


The
outcome of the 2003 parliamentary elections has been the source of a
spate of litigation in the High Court, mostly based on a series of
irregularities alleged to have been committed by candidates and their
agents, by the electoral officials and by voters in the various
constituencies. In the latest of these, the present applicant also
seeks the outcome of the elections to be set aside and be conducted
afresh, this time in the Motshane Inkhundla.


A
rule nisi is sought for an order to scrutinise and amend the voters
roll; to suspend or set aside all steps taken pursuant to the
election; to order "the Elections" to be


2


conducted
de novo to ensure that only validly registered voters are allowed to
vote; and to order the swearing in of the first respondent to be
stayed, pending the outcome of the proceedings.


From
he onset it was clear that at least some of the prayers for relief
could not be considered as the proverbial horse had already bolted
from the stable by the time the matter was brought to court, as the
first respondent had already been sworn in as member of Parliament by
then.


At
the hearing , various points in limine were raised, also two
applications to strike out affidavits, the first in the usual manner
by way of notice, the second raised from the bar by applicant's
attorney during the hearing as "it had slipped (his)mind"
to do so timeously and notifying the respondents. All the respondents
have filed opposing affidavits in addition to the legal points
wherein the issues at stake are comprehensively answered, but with no
reply thereto. The merits of the matter has not been argued, pending
the outcome of the points in limine, and I record my appreciation for
the whiten heads of argument filed by the respective attorneys.


The
matter was brought to court as an application seeking the relief set
out above, with the annexed papers being in the form of a petition,
with verifying affidavits by the petitioner and another, stating that
the High Court has jurisdiction by virtue of Section 7(1) of the
Parliament Petitions Act, 1968 (Act 16 of 1968), which petition is to
be presented to court requesting that the election be declared void
and which Act further provides in section 8(a) for such petition to
be brought by a person entitled to vote in the election to which the
petition relates, where the question relates to the valid election of
an elected Member of the House of Assembly.


In
his petition, the applicant relies on locus standi by referring to
section 8(a) as entitlement to present his petition, but without
averring that he is indeed a person who is entitled to vote in the
election to which the petition relates. A further omission is
compliance with the requirement of section 25(2)(b) and Rule 12 of
the Act under which applicant approaches the court, which require
security for payment of costs to be given. Rule 12(4) reads:


3


"If
security is not given by the petitioner no further proceedings shall
be had on the petition, and the respondent may apply to the court for
an order dismissing the petition ".


A
further aspect on which the petition falls foul, in the event that it
be found to be a matter brought in terms of the 1968 Parliament
(Petitions) Act, as it is, but which is not found to be so as set out
below, is compliance with Rule 8 under the Act. This Rule (repealed
or not) required of a respondent wishing to oppose the petition to
file his reply within 28 days, with the Registrar or within such
further time as the court may allow.


Although
the matter was brought to court as one of urgency, which in any event
is doubtful given the existing circumstances but on which I do not
pronounce, the Notice of Application dated the 28th October was
served on the second and third respondents on the 29th October 2003
and on the first respondent on a date unknown. It purports to give
the respondents until the 29th October 2003 to notify applicant's
attorneys of their intention to oppose, and to file their answering
(or opposing) affidavits by "4.30 p.m. on the 30th October
2003."


The
Notice of Application only seeks to dispense with the usual forms and
procedures relating to the institution of proceedings and allowing
this matter to be heard as a matter of urgency. It does not further
seek condonation of or dispensing with the Rules relating to time
limits by which answering or opposing papers are to be filed.


As
said, this is in flagrant disregard of the stipulated period of 28
days, or more, in which such affidavits may be filed, if the 1968
Rules are to be applied, Rules made under the Act which the
petitioner seeks to be applied.


Neither
of these three points were seriously taken or argued and I shall
proceed to deal only with only the points raised in limine, in court.


For
the first respondent, Mr. Dunseith argues that the election which is
sought to be set aside was an election of members to the House of
Assembly in terms of Section 12 of the Establishment of the
Parliament of Swaziland Order, 1992 (King's Order

-
n
-


4


Council
No. 1 of 1992). It is to be noted from the onset that the validity of
this Order

-in
-
Council
has not been pronounced upon and certainly has not been declared
unconstitutional by any competent court of law. I say so as there is
a misapprehension that the Court of Appeal by inference declared so a
year ago and which inter alia gave rise to a public statement by the
Head of Government on November 28 last year to stave off such
interpretation by extrapolation.


The
Establishment of Parliament of Swaziland Order is to be read with the
second and third King's Orders

-
in
-
Council
of 1992 (the elections and voters Registration Orders) which
respectively provide for general elections and the registration of
voters.


Before
proceeding to determine which legislation is applicable to the
matter, it is useful to note that the court itself may not be vested
with jurisdiction to determine election questions by virtue of its
inherent jurisdiction (section l04

(1)(a)
of the 1968 constitution) but through parliamentary abrogation. In
the first edition of Halsbury's Laws of England, Vol. XII, 1910,
under the heading "Elections", the developmental process of
this jurisdiction is described, since earliest days until the English
Electoral Act of 1868. The summary, on pages 135 - 136 is quoted in
Mota en andere v Moloantoa en andere 1984(4) SA 761 (OPA) at 798 C -
H by M T Steyn J, as he then was.


"In
the early beginnings of representative Government the right to vote
for members of the great assembly of the nation in Parliament was of
a most elementary character, gaining strength as the people from time
to time learned more and more to realise the power which they
possessed. For a long time the de facto rulers kept a firm hold on
the reins. Thus, until comparatively recent years, Parliament decided
practically according to its own unfettered will all questions which
arose in relation to the franchise and its exercise, to the freedom
of voting, and to purity or corruption accompanying an election.


In
the reign of King James I, 'certain rules of great outlines of the
legal rights of voting' were 'laid down as a guide and direction to
the electors and candidates in the country, and as a remembrance of
the reasons and grounds upon which the determinations of the House
were founded'. It was at that


5


time,
after some curious instances to the contrary, 'universally known and
admitted to be the sole right of the House of Commons to examine and
determine all matters relating to the election of their own members,
and that neither the qualification of any elector nor the right of
any person elected is cognisable or determinable, or will be suffered
by that House to be called in question by any other judicature
whatsoever (except in such cases where specially provided for by Act
of Parliament)'. And it seems that in ancient times Parliament
arrogated, or attempted to arrogate, to itself even the power of
inflicting punishment for bribery at elections.


Later
on the parliamentary committees which decided these matters were
constituted, generally in proportion to the strength from time to
time of the principal parties in the House of Commons.


Although
the committees purported in all cases to act in accordance with
definite principles laid down by them, there

can
be little doubt that their decisions were liable to be, and to some
extent 're, influenced by political or personal bias. This
proposition, it is true, must not be put too high -

first,
because the 17 sets of reports of election petitions tried before
parliamentary committees from 1624 to 1865 show on the face of them
that the questions raised were discussed and determined on legal
lines; and, secondly, because the Act of 1868, which first
transferred the jurisdiction to a Judge of the High Court, itself
adopts (subject to Rules of Court) 'the principles, practice and
rules on which committees of the House of Commons had previously
acted'.


But
after making all due allowance for the credit which is due to the
parliamentary committees for setting up and honestly trying to uphold
just and equitable standards of decision, the inherent unfitness of
non-legal tribunals whose impartiality were not above suspicion to
deal with election petitions could not fail to become more and more
apparent, and so it was gradually recognised by Parliament itself
that judicial knowledge and fairness in dealing with these matters
were essential to the freedom and purity of elections, and this led
at last in 1868 to the voluntary surrender of the real authority to
the Judges."


6


It
is this abrogation of Parliamentary power to deal with election
questions that has also found its way to Swaziland, initially
manifesting in the Parliament Petitions Act of 1968, at the time of
independence. It is this Act under which the petition is brought, and
not the later Establishment of Parliament Order of 1992, together
with its ancillary legislation.


When
dealing with a petition concerning the validity of a Parliamentary
election, the court needs to be mindful of the common law of
Parliament, and its own ability to determine its own membership and
election procedures and disputes, and the extent to which it has
delegated (or abrogated) the latter to the courts. The High Court,
despite its own inherent original jurisdiction, unlimited in civil
and criminal matters, shall remain to approach election disputes
conscious of parliamentary regulation of how and by who it may be
taken to the Courts.


In
the original 1968 constitution of Swaziland, section 56(l)(c)confened
jurisdiction

of
the High Court to hear and determine ay question whether any person
has been validly elected as an elected member of the House
(Parliament). It went on (in section 56(2)(c)) to hold that an
application to the High Court may be made for the determination of
any question under subsection (1)(c)

by
any person who was a candidate, at or entitled to vote in the
election to which the application relates, or by the Attorney
General.


The
whole of this chapter V, including Section 56 of the initial 1968
Independence Constitution was repealed in 1973 by the late King
Sobhuza II in the King's Proclamation of the 12th April 1973 and not
reinstated like various other chapters. Thus, the chapter which
regulated Parliamentary elections, the petition procedure and locus
standi of petitioners, as well as the High Court's jurisdiction to
hear matters incidental thereto, was abolished.


This
led to the conclusion that the Parliament Petitions Act of 1968 was
also repealed, by implication. In February 1994, Hull CJ held, albeit
arguably obiter, in Civil case No. 1580/1993, an unreported judgment
in the matter between the Attorney General v


7


Dlamini
and Others at page 2 (after referring to the petition vis-a-vis
application procedure to bring election matters to court):-


"There
are sound reasons why that should be so and it is desirable, in my
view, to reinstate the provisions formerly contained in the
Parliament (Petitions) Act 1968 (No. 16 of 1968) 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 was wrong, proceedings of this kind should in future
be commenced by way of petition. "


For
present purposes, it is not necessary to determine if the above
conclusion of law by the learned former Chief Justice has to be
applied in casu or not, for the reasons given below. Suffice to say,
chapter V of the Independence Constitution of 1968 was repealed, not
thereafter reinstated, leaving a lacuna that was later addressed by
the 1992 Establishment of Parliament Order, which reintroduced the
substance of section 56 of the repealed Constitution, in amended
form, by way of section 28 of King's Order

-
in
-
Cou
ncil,
No. 1 of 1992 (the establishment

o
f
Parliament of Swaziland Order) referred to above.


Section
28 of this King's Order

-
in
-
Council,
which aim is "to provide for the Establishment of the Parliament
of Swaziland and other matters relating thereto", provides for
the decision of questions as to membership of Parliament. One has to
be mindful of what I mentioned above of the manner in which the
courts became enjoined to decide on disputes arising from
Parliamentary elections. A strict interpretation of the enabling
legislation, especially so when the locus standi of petitioners is to
be considered, needs to be followed. Section 28(1)(b) reads that:


"The
High Court shall have jurisdiction to hear and determine any question
whether any person has been validly elected as a member of

the
House, "

and
section 28(2)(b) reads:


8


"An
application to the High Court may be made for the determination f any
question under subsection (l)(b) by any Senator or elected or
nominated member of the House, as the case may be, or by the Attorney
General. "


That
is what the 1992 Establishment of Parliament Order legislated. No
more and no less.

Circumvention
of this conferment of the standing to seek the court's intervention
in the outcome of elections was pronounced upon by Hull CJ in the
Attorney General v Dlamini and others, supra. Again on page 2 of the
unreported judgment he said:-


"A
fundamental issue of locus standi in judicio arose ... The effect of
this (corrigendum to Order No. 1 of

1992,
section 8) shortly put, is

thai
whereas it had appeared up to that point in the proceedings that Mr.
Mncina, as a candidate, had the standing to bring them personally
...(referring to petitions), (as is the case in South Africa and
England), the true intent of subsection (2) of sectin 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 (my emphasis) be made by the Attorney
General" (that is, over and above an elected or nominated member
of the House, in the present circumstances.)


The
bottom line, so to speak, is that the empowering legislation which
confers jurisdiction on the High Court to hear election disputes of
the election of members of the House, bestowed on the courts by the
legislative arm of Government, which otherwise would have determined
the issue itself in parliament, limits locus standi as determined in
the Order, to the Attorney General or and elected/nominated member of
the House. This is in contrast to the 1968 Act, which also included a
further class of petitioner, namely "...a person entitled to
vote in the election to which (he petition relates ".


In
its wisdom, the legislature, whether it be Parliament or the King

-
in
-
Council,
whose ability to legislate as he did does not come up for
consideration at present, decided to place a limitation on the
standing of petitioners to seek the intervention of the courts


9


in
election matter. The legislature is presumed to be fully cognisant of
existing and non-existing legislation when it passes new enactments.
Whether it works in favour or against the interests of losing
candidates is not the question now to be pronounced upon. The court
is enjoined to apply the law as it finds it, not to amend the law to
give effect to potential petitioners who were excluded from bringing
such matters to court to be decided upon.


Losing
candidates and voters in their election districts or Tinkhundla were
excluded from bringing their matters to court. That is the clear and
unambiguous stated position in section 28 of the King's Order

-
in
-
Council,
No. 1 of 1992, in stark contrast to the Parliament Petitions Act of
1968, also contrary to the provisions under the repealed chapter V of
the Independence Constitution.


Apart
from the (arguably obiter) pronouncement on the present validity of
the 1968 Parliament Petitions Act, by Hull CJ in A.G. v Dlamini and
others (supra), or its implied repeal, it has very recently (last
month) been held by Maphalala J in an unrepoited Civil Case No.
2498/2003

in
the matter between Rogers Matsebula and 9 others v Magwagwa Mdluli
and another, at page 9 thereof, that:-


"...is
further correct that the Parliament (Petition) Act was promulgated in
relation to the Electoral act No. 4 of 1971. Although the latter Act
has not been expressly repealed, it appears to have been impliedly
repealed by the 1973 Proclamation and the promulgation of the
Election Order 1992, and the Voter Registration Order 1992. The
election which is the subject of the present application was held
under the Election Order, 1992."


It
is the results of the same election which is challenged in the
petition currently under consideration, with the petitioner seeking
locus standi under the provisions of the 1968 Parliament Petitions
Act, which as already mentioned, had the standing removed from voters
(and losing candidates) in the 1992 Order.


In
the event that I may be wrong to conclude, as I do, that the 1992
legislation does not confer standing in law to bring the petition on
the petitioner, whether he be a registered voter in the Motshane
Inkhundla (which he does not aver in his petition or


10


verifying
affidavit but which may perhaps be inferred by implication) or in his
capacity of a losing candidate, there is a further aspect to
consider.


The
petitioner's attorney, Mr. Simelane, strenuously argues that the 1968
Act has not been repealed, either expressly, or by implication. He
thus wants it to be found that if the 1992 Order is the applicable
legislation (which he does not concede to be the case) the 1968
Parliament Petitions Act still has an important function to fulfil.
This is to hold that the standing to bring a petition, conferred on
"a person entitled to vote in the election to which the petition
relates", gives standing to the petitioner, in that it serves to
amplify the 1992 Order which omits that category of petitioner.


For
this contention, Mr. Simelane relies on, amongst others, the South
African Interpretation Act 1957, which in principle determines that
any regulation or by-law made under an enactment which is repealed,
is also repealed, unless the repealing statute states otherwise.
Generally the old provisions remain in force until the new one comes
into operation. The argument goes on to say that the general
principle is that if an Act is repealed, then any proclamation on
regulation made in terms of the Act which has been repealed is also
repealed by virtue of the fact that the enabling statute has been
repealed, and such proclamation or regulation would then cease to
have any validity. However, he goes on, where a repealed statute is
immediately substituted with a corresponding Act, the position is
different. Should the terms of the corresponding act or section
differ to a certain extent from the original provisions which have
been repealed, then the old section will merely be regarded as
amended and any proclamation or regulation issued under the original
section stands unrepealed, as was held in Oraranjeville Dorpsbestuur
v Gulliver 1970(1) SA 554(0).


This
principle may arguably be true but it does not find application in
the present matter. The 1968 Parliamentary Petitions Act was not a
proclamation or regulation under the 1968 Constitution but
substantive legislation which was impliedly repealed. When the 1992
Election Order was enacted, the legislature being presumed to be
cognisant of existing and non-existent legislation, determined in
section 59(2) of the King's Order

-
in
-
Council
that:-


11


"All
existing laws shall continue to operate with full force and effect
but shall be construed, with such modifications, qualifications and
exceptions as may be necessary to bring them into conformity with
this Order (as may be amended)".


From
this subsection, it is abundantly clear that whether the legislature
regarded the 1968 Act intact or not, it wanted to ensure that it is
the new provisions, Of 1992, that are in full force and effect, and
that it must not be construed to bring the latter legislation in
conformity with the previous legislation. It is the other way around.
Old and existing legislation is expressly stated to be brought in
conformity with the 1992 Order in so far as it is not inconsistent.
When applied in the present situation of locus standi, the 1992 Order
determines who may bring a petition. It

is
not to be construed so as to also include the omitted category of
voters, as was the position in the 1968 Act.


Mr.
Simelane further contends that

where
two

apparently
contradictory statutory provisions are capable of a sensible
interpretation

which
would reconcile

the
apparent contradiction, that interpretation should be preferred, as
was held in Shop v Minister of Justice, KwaZulu 1992(2) SA 338(N) at
342 by Magid J.


This
also does not hold water. There can be no room for "sensible
interpretation" in the present situation where the latter
enactment expressly states that all existing laws (if the 1968 Act
was still existent at all) "... shall be construed with such
modifications, qualifications and exceptions as may be necessary to
bring them into conformity with this Order". To now hold that a
voter as mentioned in the 1968 Act but not mentioned in the later
1992 Order is reconcilable with an implied inclusion in the latter
Order, will be tantamount to flaunting express legislation and
forcing an irreconcilable interpretation onto it. That is not the
function of the court. If Parliament wishes to include further
classes of petitioners, it is free to do so. It was chosen not to do
it in the 1992 Order.


Due
to the conclusions I have come to, as enumerated above, I shall only
briefly and superficially deal with the objections in law which were
raised by Mr. Vilakazi for the second and third respondents, and not
deal at all with the two applications for striking


12


out
of (parts of and a full) affidavits brought by both the 2nd
respondent as well as the applicant/petitioner.


The
thrust of the argument by Mr. Vilakazi is that the
applicant/petitioner should not have approached the High Court as
first part of call. The Voters Registration Order of 1992 (King's
Order

-
in
-
Council
No. 3 of 1992) details the procedure to be followed when the
compilation of a voters list is objected to, in Section 13 of the
Order. The inclusion or retention of any name in, or the restoration
or addition of any name to a voters list, and the removal of any name
from it, may be objected to by any voter at any time by lodging with
the electoral officer of the Inkhundla concerned an objection in the
approved form No. 7 with a fifty cents revenue stamp affixed thereto.
Provision is further made for the manner in which the objection is to
be dealt with and eventually determined by the electoral officer.
Section 14 goes on to determine how appeals arising from such a
determination is to be dealt with, by a magistrate. Thereafter,
outcome of the appeal may be caused to be brought before a Judge of
the High Court in chambers by a dissatisfied appellant, ultimately to
the Court of Appeal, all steps and procedures again explicitly set
out in sections 14

and
15 of the Order.


It
is common cause that these procedures have not been followed audi
exhausted. Equally, there is no explanation in the petition as to why
this was not done, nor an application to condone the by-passing of
the statutory procedures.


The
point is thus that prior to the application/petitioner approaching
the! High Court on petition, the above remedies have to first be
exhausted.


The
difficulty with this argument is that it refers to the voters list,
i.e. the individuals that are entitled to vote. Strictly taken, in
favour of the petitioner, this aspect has only

a
bearing on one facet of his petition, which relates to his concerns
of who the voters were, and his prayers that the voters list or roll
for the Motshane Inkhundla be scrutinized and amended, further that
the elections be commenced de novo to ensure that only validly
registered voters are allowed to vote.


13


As
said, it is not necessary to determine these aspects, valid as the
point taken by the second and third respondents may be, as this would
hinge on the applicant's ability to bring the petition in the first
place.


Having
heard full and comprehensive argument and consideration of the law,
having read the papers filed, it is the inevitable conclusion of this
court that the applicant /

petitioner
does not have locus stand to bring the matter to court in eo nomine.
It follows that the ancillary objections and questions of striking
out of affidavits or parts of affidavits does not require to be
determined as well.


In
the event, the petition (or application as it is also termed by the
applicant/petitioner) stands to be dismissed in limine, and it is so
ordered. Costs are ordered to follow the event.


ANNANDALE,
A

C
J