Court name
High Court of eSwatini
Case number
Civil Case 2466 of 2003

Magongo v Chief Electoral Officer (Civil Case 2466 of 2003) [2003] SZHC 97 (20 October 2003);

Law report citations
Media neutral citation
[2003] SZHC 97
Coram
Matsebula, J









HIGH
COURT OF SWAZILAND


CIVIL
CASE NO.2466/03


In
the matter between:


ROBERT
MAGONGO APPLICANT


AND


CHIEF
ELECTORAL OFFICER RESPONDENT


CORAM MATSEBULA
J


FOR
APPLICANT MR. SIMELANE


FOR
CROWN MR. MSIBI


JUDGMENT


20th
OCTOBER 2003


This
is a matter brought by notice of motion under the certificate of
urgency. On the 30th September 2003 my brother Shabangu A

J
granted a rule and postponed the matter to the contested roll of the
10th October 2003. On the 10th October 2003 the matter was further
postponed to a date to be arranged by the Registrar. The Registrar
allocated it to the 15th October 2003 and on this date it was further
postponed to the 16th October 2003. By all accounts which would have
been perceived and recognised by the learned Judge on the 30th
October 2003 this matter had completely lost its urgency. Finally the
matter was part-heard before me on the 16th October 2003. Not much
progress was made because the court was flooded with other matters


2


of
similar applications. I read through the book of pleadings and raised
certain questions regarding the merits of the matter and Mr. Msibi
referred me to Section 20(1)(d) of Act No.2/1992 which, in my view,
has absolutely no application and relevance in this matter at hand.
To follow this line of argument would simple be backing a wrong tree.


In
the present case the applicant appears aspired to be an "indvuna"
of an inkhundla whose requirements and prerequisite have nothing to
do with anyone aspiring to be an "indvuna" of inkhundla. No
(inaudible) of interpretation of statutes relating to an aspiring
member of parliament can be invoked to either assist or bar a person
who aspires to be an "indvuna" of inkhundla.


In
my view, therefore both Parliaments Act and the Parliament's
Petitions Rules are totally irrelevant to the present proceedings. It
would be advisable for this court to stay as far as away from this
cause as possible. The applicant's notice of motion and prayers are
the following:


1. Dispensing
with the usual forms and procedures relating to institutions of
proceedings and allowing this matter to be heard as a matter of
urgency;


2. Ordering
that a rule nisi do hereby issue calling upon the respondent to
appear and show cause if there is any to this Honourable Court at a
time and date to be determined by the above Honourable court at a
time and date to be determined by the above honourable court while
order in the following terms should not be made final.


2.1 that
the elections for the indvuna yenkhundla conducted on the 20th
September be suspended and/or set aside.


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2.2 Staying
or all steps in execution of elections outcome pending flnalisation
of these proceedings;


2.3 That
the election of indvuna yenkhundla be commenced de nove;


2.4 Directing
the rule nisi referred to in paragraph 2 above to operate with
immediate effect pending the outcome of the proceedings;


2.5 Directing
that the respondent pays costs of this suit in the event they oppose
same;


2.6 Granting
the applicant such further and/or alternative relief as the
honourable court may deem meet.


Mr.
Simelane asked this court to focus its attention on the following
prayers, prayers 2.1, 2.2, 2.3 and 2.4 for the simple reason that my
brother Shabangu A

J
already dealt with the other prayers. The background to this
application is set out at pages 7 to 8 of the founding affidavit and
I would read that in full and then comment on the contents.


The
background is as follows:


"On
about the 23rd August 2003 I was nominated to stand for the elections
of the position of the indvuna yenkhundla of Motshane. Pursuant to
the nomination I presented myself to the Mbabane Police station for
the purposes of fingerprints taken to obtain a police clearance.


5. I
was of the view that all was well until on the 17th September 2003
when I was served with an application that I must submit myself for
fingerprinting in connection with an earlier conviction. I was taken
aback by this application and I duly instructed my attorneys to
oppose it. On the day of the elections for the position of the
indvuna yenkhundla being the 20th September 2003 my


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photo
did not appear on the ballot paper for purposes of enabling voters
interested in voting for me. As a result of this omission I was never
voted for notwithstanding the fact that I qualified to contest the
elections.


When
I enquired from the returning officer, he said he had no idea the
ballot paper at the time was all that was handed to him. As he could
not help me, I could not participate in the elections. It then became
clear to me that the reason why my photo and my name did not appear
in the ballot papers is because the police did not issue a clearance
hence they wanted through the application served on me on the 17th
September 2003 to comply a fresh record which would then serve to
rectify the omission. The fingerprints ought to have been taken
during my arrest or conviction they cannot be taken at this stage
when I have been released from custody nearly two years ago. If the
police do not have the fingerprints that is what the clearance should
stage. To seek to have my fingerprints for an earlier offence taken
at this stage is not in accordance with the procedures.


I
may just pause here and point out that the applicant seems to
completely have misconceived the question of the taking of
fingerprints. This stands procedurally in any institution, if you
seek employment this is the procedure. He cannot object to that and
he cannot force the employer to take him against the wish of the
employer if the employer has not been given confidential information.


As
I dealt with Section 20(1) (g) of the Establishment of Parliament Act
and made a finding that it ha no application. I am not persuaded by
the respondent's paragraphs 4 at page 15 which reads as follows:


"I
admit the allegation in this paragraph in so far as they relate to
the applicant's nomination for a position of indvuna yenkhundla and
further allegation that the applicant presented himself to the police
for the purpose of obtaining a police


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clearance.
I am advised and do verily believe this has been the case with all
candidates for the position of indvuna yenkhundla and further
allegation that the applicant presented himself to the police for the
purposes of obtaining a police clearance."


I
am advised and do verily believe that this has been case with all
candidates for the position of indvuna yenkhundla since 1993
Parliamentary Elections and was also observed the letter during 1998
elections and is currently being observed by the over 350 candidates
currently contesting the elections for the indvuna yetinkhundla under
the 2003 elections.


I
submit and I have been verily advised, which advice I readily accept
that this has developed into an established constitutional practice
of law. I submit at face value, this requirement mentioned in Section
20(1)(g) of the Establishment of Parliament Orders Act 1992 seem not
to be applicable to appointment of indvuna yenkhundla but further
legal arguments shall be advanced on my behalf at the hearing of this
application to demonstrate that it is not applicable.


As
I have said I am not persuaded by the respondent's paragraph 4 at
page 15 first paragraph of page 16 for the reasons stated above in my
judgment. What is of importance in this matter is whether the Section
is applicable to candidates of Parliament and Senate on the same
footing aspiring candidates for the indvuna yenkhundla. The
legislative enactment clearly indicates that is not the case.


By
consent both counsel agreed that it would however be in the interest
of justice for this court to involve the powers in terms of the civil
proceedings and call a witness from the Correctional Services
Department. This I would explain in details that the applicant was
already out of prison at the relevant time. This notwithstanding that
the Section 20(1)(g) of the Establishment of Parliament has no


6


application
in his case because he does not intend becoming or being appointed
Member of Parliament. The witness has given his evidence, I hope to
the satisfaction of both counsel. The court called him and either
counsel was not restrained to cross-examine him. It seems to me to be
common cause that either counsel is not challenging his evidence. His
evidence stands therefore uncontroverted i.e. to the extent that the
witness was out of prison by the year 2001.


For
the purpose of this judgment there is therefore no question that the
piece of legislation is of no application. The question that this
court is called upon to decide is whether the provisions of the
establishment of Parliament Order No.l of 1992 applies to the
applicant's case.


Mr.
Simelane on behalf of the applicant argued very forcefully that the
order does not apply to the applicant but only applied to those
aspiring and who have been nominated for positions either the House
of Assembly or Senate which is clearly not the applicant's case here.
He has applied for the position of the indvuna yenkhundla of the
Motshane area. Mr. Simelane referred to the principles of legal
interpretation by EA Kellaway at page 221 and I have consulted that.
Mr. Simelane submitted that the (inaudible) position by the learned
writer is very clear and there is no ambiguity. It was further, Mr.
Simelane's submission, that the manner of going about the position of
establishing a procedure for a person who intends to be an indvuna
yenkhundla is spelt out there but the reference is to a person who
was to be a member of Parliament. If it was the intention of
Parliament to include the indvuna yetinkhundla, Parliament would have
done so but not left the court to infer for the position of the
indvuna yenkhundla would have been intended. It was Mr. Simelane's
argument to have that excluded and prevented the applicant from
including his photo from those who contested the position was both
unlawful and illegal.


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Mr.
Simelane asked this court to grant prayers 2.1 to 2.3 of the notice
of motion.


Mr.
Msibi on the contrary's arguments was to the effect that if the
applicants had not been granted the remission by the Correctional
Services Department the (inaudible) of mercy by His Majesty he would
have been released only in December 2001 and therefore he would not
have been out of prison to be nominated for the position of indvuna
yenkhundla of the area. Mr. Msibi argues that applicant has a
previous conviction and therefore on that basis is excluded in terms
of Section 20(l)(g) of the Establishment of Parliament Order Act
No.22. Mr. Msibi argued further that this principle of exclusion is
based on conversion. It has been a practice since the establishment
of the Inkhundla System. The witness of Mr. Msibi's argument is that
the inkhundla system or government has not been in existence from any
length of time to entitle this court to either invoke conversion and
base its judgment for the exclusion thereof. Mr. Msibi argued that
the case in point is one in which an accused is charged with an
offence under the non-bailable offences order. Mr. Msibi argued that
the accused in that case was convicted and sentenced and his counsel
subsequently moved a bail application on the basis that the position
of the accused had changed and therefore the prohibition. to the
granted bail no longer apply. On the contrary I feel that it is the
reverse of this whereas the person who has been charged is presumed
innocent once convicted all the innocence falls away and the law will
even apply with more force than it had applied heretofore. I do not
and I am not persuaded by this argument. If anything, when he the
accused faced the unproven case, he was presumed innocent until
proven guilty. However, once convicted, his legal position became
worse, how then can he be considered for bail?


The
court, in that case was perfectly correct in rejecting the evidence
in advance. In my considered view the applicant is entitled in terms
of


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prayers
2.1, 2.2, 2.3 and 4 of the notice of motion and that is the judgment,


J.M.
MATS
EBULA


Judge