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By Sandile Nkambule | 2018-07-21
After having heard submissions by the Swaziland Democratic Party (SWADEPA) and the Elections and Boundaries Commission (EBC) in an urgent application filed by the latter yesterday, the Constitutional Court yesterday dismissed the latter’s application.
The court comprising Judges Mumcy Dlamini, Mzwandile Fakudze and Ticheme Dlamini dismissed the application with costs.
Arguments were made in the morning and judgment was reserved for 2:30pm, where the Court made the pronouncement.
During the hearing of the matter, Court A was packed to the brim as members of all the proscribed parties came in their numbers to hear the matter.
Representing SWADEPA in the urgent application were two South African Advocates Peter Richard Hathorn and Jonathan Berger, both based in Johannesburg as instructed by lawyer Leo Ndvuna Dlamini from S.A Nkosi Attorneys.
Proceeding
Also present was former Member of Parliament Jan Sithole, who was also party to the proceedings as he had filed a confirmatory affidavit, Human Rights lawyer Thulani Maseko, Masalekhaya Simelane and others.
In its founding affidavit, SWADEPA had submitted that there was nothing preventing political parties to campaign for particular candidates during the primary and secondary elections.
According to SWADEPA, they wanted the party members to be allowed to canvass for and receive the endorsement of any political party during the election.
Furthermore, the party was also seeking an order interdicting the EBC, prime minister, minister of Justice and other respondents from allowing its members and other political parties who have registered for the elections and publicly associated from wearing, displaying its colours, symbols or slogans.
Cited in the application as applicants were the Secretary General Mbongiseni Cyprian Shabangu as the first, SWADEPA as the second and Sanelisiwe Tababe Dlamini as the third.
The EBC had been cited as the first respondent, the prime minister as the second, justice minister as the third, minister for home affairs as the fourth, minister for Tinkhundla administration and development the fifth, national commissioner of police sixth, Umbutfo Eswatini Defence Force Commander seventh, the principal secretary in the ministry of defence the eighth and the attorney general as the last respondent.
They also sought an order interdicting the respondents from preventing the third applicant (Sanelisiwe), who has already registered for the elections and any other member who chooses to run as a candidate for election to the House of Assembly in canvassing for votes from stating publicly and motivating their social, economic, political and cultural beliefs, union and convictions.
Chief Gija, in his papers, submitted that the SupremeCourt clearly pronounced itself that a person should be elected or appointed on the basis of individual merit, and that elections were conducted through a Tinkhundla or constituency-based system.
He said the Constitution was very explicit regarding how elections were to be conducted in the country.
The SWADEPA president, according to Chief Gija, won the 2013 elections in his constituency unhindered.
SWADEPA and Ngwane National Liberatory Congress (NNLC), in a letter they wrote to the EBC before the former approached the court, noted that the Supreme Court in the Jan Sithole versus Government matter was not clear about the role of political parties in an election.
The EBC chairman informed the court that SWADEPA neglected and refused to follow a decision which was binding on them, with the hope that the High Court would be persuaded to reverse the Supreme Court decision.
SWADEPA members want to publicly express their political views during elections
They are also seeking an order interdicting the respondents from preventing the third applicant, who has already registered for the elections and any other member who chose to run as candidates for elections to the House of Assembly in canvassing for votes, from stating publicly and motivating their social, economic, political and cultural beliefs, opinion and convictions.
According to Mbongseni Shabangu in his affidavit, he is a registered voter in the Mtsambama Inkhundla after having registered on May 17, 2018.
He submitted that he brings the present application in three capacities, first in his personal capacity as an individual who is eligible to vote in the elections to be held later this year, secondly as an individual who is eligible to run as a candidate and thirdly, in his capacity as a member and office bearer of a political party representing all members of SWADEPA.
He submitted that SWADEPA brings the application on behalf of its members who are eligible to vote in the elections and those who intend to run as candidates.
The third respondent (Sanelisiwe Tababe Dlamini), according to Shabangu, is a resident of Zandondo and a registered voter under Mandlangempisi Inkhundla and a member of SWADEPA’s Women League and brings the application in the same three capacities.
He stated that the second to the eighth respondents are cited for their interest in the matter, while the attorney general, who is the last respondent, is cited in his capacity as the official legal representative of government. At its core, Shabangu alleged that the application concerns the right of freedom of association as entrenched in Section 25 of the Constitution of the Kingdom of Eswatini, in particular the right to associate freely with other persons for the protection of the interest of that person.
Citing a case of Jan Sithole and others vs Government of Eswatini, Shabangu submitted that the Supreme Court held that the right to freedom of association contained in Section 25 of the Constitution includes the right to form and join political parties.
According to Shabangu, in a letter addressed to EBC Chairperson Chief Gija in April, SWADEPA and the Ngwane National Liberatory Congress (NNLC) sought clarity regarding the nature and extent of political parties’ participation in the electoral process, in particular in respect of key elections related activities. He stated that given the imminent dissolution of Parliament and announcement of an election date, the EBC requested to respond to the letter within 10 days.
“In his response on April 27, Chief Gija avoided engaging substantively with all but a single subparagraph that political parties are entitled to engage in a range of electoral processes should they so choose, such as conducting a nationwide campaign that is not directly linked to any particular candidate for election,” Shabangu submitted.
He further submitted that in respect of the period between primary and secondary elections, the EBC appears to recognise that there is no bar to political parties campaigning for particular candidates, arguing that in other words these parties may publicly identify and express support for their members who are running for public office.
Court papers filed by SWADEPA not in order - Court observes
The Constitutional Court yesterday observed that the papers filed by the applicants in the matter were actually not in order.
Before the matter could even proceed, Judge Mumcy Dlamini asked from the applicant’s representative, Advocate Peter Richard Hathorn as to why the founding affidavit in the application brought before Court had been deposed of by the first applicant (Shabangu) yet the matter touched upon the third respondent (Debra).
The court wondered as to how the application could be entertained under the circumstances, wondering as to how the first applicant could be treated as a litigant in the matter since the prayers sought are in respect of the third respondent. “The orders sought in the interim relief are in respect of the third applicant, whereas founding affidavit has been deposed by the first applicant, how long will the interim relief sought be interim, Judge Dlamini questioned. Advocate Hathorn, in response, told the court that the order sought shall be in the interim interdictory, pending the final determination of the relief sought in the second part of their application as they are seeking relief in terms of the Constitutional rights issue. The Court felt that the applicants should put their house in order as the papers need to be amended. In response, EBC Chairman Chief Gija, in his papers, submitted that the Supreme Court clearly pronounced itself that a person should be elected or appointed on the basis of individual merit and that elections were conducted through a Tinkhundla or constituency-based system. He said the constitution was very explicit regarding how elections were to be conducted in the country.
Application by SWADEPA fatally defective, should be dismissed with costs – AG
When making his submission yesterday, the Attorney General Sifiso Khumalo argued that the application brought before Court by the applicants is fatally defective and should be dismissed with costs.
Khumalo submitted that they raised the issue of competency on issue of the prayers sought by the applicants, as the prayers are incompetent.
“We got confused when trying to understand what the applicants are seeking before court, the application is in fact open handed much against the rules of the Constitutional Court, I have never seen such an open handed application for interim relief,” the attorney general submitted.
He submitted that there is nothing such as an action brought before court in the interest of the public as applicants have even raised an issue of other voters, stressing that the application is defective and ought to be dismissed.
The attorney general stated that the applicants are abusing the court process by instituting interlocutory and declaratory proceedings against the respondents in order to legitimise their purported actions which are currently outside the scope of the electoral laws of Eswatini.
Khumalo submitted in his heads of argument that the matter is not urgent by virtue of the fact that the relief sought relies extensively on the decision made by the Supreme Court on Sithole and others versus government which was delivered in 2009, about nine years ago.
Matter
He stated that if the matter could have been dealt with either way before or after the 2013 elections if the intention was to seek clarification on the extent of political party participation in the election following the pronouncement of the Supreme Court in the Sithole case as the same principle applies to date.
The AG submitted that the requirement is that a party seeking urgent relief should set out the reason for urgency and why urgent relief is necessary as it is trite that there are degrees of urgency and the degree to which the ordinary applicable rules should be relaxed, is dependent of the degree of urgency.
He submitted that urgency should not merely arise because the first respondent (EBC) has published the election calendar.
He stressed that the Supreme Court clearly pronounced itself on the matter at hand and that the applicants should not therefore come before the honorable court nine years later on a mater of urgency to seek clarification on the nature and extent of the rights to freedom of expression and association of candidates for election to public office, nor the nature and extent of permissible political party participation. Khumalo further submitted that the application should not be entertained by the honorable court in the nature and extent of permissible political party participation in any such candidate’s election campaign.
Court cannot re-open matter – AG
In his further submissions, the attorney general in his heads of arguments, stated that the court cannot re-open the matter as it is now functus officio (cannot entertain matter).
The AG Sifiso Khumalo submitted that this is based on the fact that the Supreme Court has already pronounced itself on the matter and the Constitution does not vest the honorable court with the power to review and alter, rectify or set aside orders of the Supreme Court.
“Assuming that the High Court made the orders sought in the present application what would then become of the Supreme Court judgment in the event an appeal arising from there how would be the Supreme Court be expected to deal with the appeal,” Khumalo wondered.
The reality according to Khumalo is that the High Court judgment would be brutumfulmen (inconsequential against the judgment of the higher court).
He submitted that the principle of the rule of law and legal certainty will be compromised if the finality of a Court order is in doubt and can be revisited in a substantive way.
He motivated his submission by stating that the administration of justice will be adversely affected if parties are free to continuously approach courts on multiple occasions in the same matter which is the case in the present application. According to Khumalo, it would therefore seem that the second applicant (SWADEPA) is not desirous to be incorporated in terms of the laws of the country but desirous to engage in unlawful acts in that the second respondents purports to finance and support candidates during election.
Jan wants to campaign for re-election into Parliament as SWADEPA president
With the Swaziland Democratic Party (SWADEPA) and the Elections and Boundaries Commission (EBC) matter heard by the Constitutional Court yesterday it was submitted that Jan Sithole wants to campaign for re-election into Parliament as SWADEPA president.
Making submissions before the Constitutional Court comprising Judges Mumcy Dlamini, Mzwandile Fakudze and Ticheme Dlamini, was South African Advocate Peter Richard Hathorn who submitted that if Sithole is required to campaign without referring to his achievements as SWADEPA president, he will be denied the right to present his full individual merits as a candidate to the electorate.
Advocate Hathorn in his heads of arguments submitted that this would mean that Sithole will be unfairly prejudiced in relation to other candidates for re-election who do not have significant achievements which they are unable to raise when campaigning for election.
Express
“In addition, if he does not express his views on issues raised in freedom of expression, voters will simply be unable to access properly his merits as candidate, similar considerations apply to the third applicant and other SWADEPA members who intend standing for elections,” Advocate Hathorn submitted.
Instructed by lawyer Leo Ndvuna Dlamini from S.A Nkosi Attorneys, Harthon submitted that unless the Constitutional Court decides the application for interim relief prior to the commencement of campaigning for election on August 2018, it must be accepted that the people of Eswatini will not enjoy the benefit of the free and fair elections process required by the Constitution.
The applicants in the matter are Secretary General Mbongiseni Cyprian Shabangu (first), SWADEPA (second) and Sanelisiwe Tababe Debra Dlamini who is the third applicant.
Lawyer Dlamini instructed two, Advocate Jonathan Michael Berger and Peter Richard Hathorn who are Johannesburg based advocates in the matter.
According to their papers filed in court, they want its party members to be allowed to canvass for and received the endorsement of any political party during the elections.
Furthermore, they are also seeking an order interdicting the EBC, prime minister, minister for justice and other respondents from allowing its members who have registered for the elections publicly associated themselves with any political party by wearing, displaying its colours, symbols or slogans.
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