MBABANE – “A candidate cannot be catapulted by the court to the secondary elections, but must do so through amassing more votes than his or her competitors.”
Judge Justice Mavuso made this comment in one of the judgments on points of law, that the High Court delivered yesterday when dismissing the applications challenging the elections process, which were filed by three separate applicants. The applicants were former Ndzingeni and Kwaluseni Members of Parliament (MPs) Lutfo Dlamini and Sibusiso Mabhanisi Dlamini respectively, as well as 16 individuals who were turned away from Sigangeni Polling Station during the primary elections on July 22, 2023.
Approached
Lutfo lost to Bhekithemba Magagula, a teacher by profession, at Nkamanzi Umphakatsi under Ndzingeni Inkhundla. He approached the court on the basis that Magagula, as a civil servant, had failed and/or neglected to file with the Elections and Boundaries Commission (EBC) a letter of leave of absence as required by Article 97 of the Constitution. Lutfo wanted Magagula’s nomination as an MP candidate and subsequent election thereto declared unconstitutional in as far as it was in total breach of Section 97 (1) (c) of the Constitution and that his nomination be reviewed and set aside.
He also implored the court to stay the secondary elections scheduled for tomorrow under Ndzingeni Inkhundla. Lutfo was represented by Kwanele Magagula of Sithole and Magagula Attorneys.
Provisions
The teacher raised a point of law based on Article 97 (1) (c) of the Constitution, which provides that: “(1) Notwithstanding the provisions of Section 96, a person does not qualify to be appointed, elected or nominated as the case may be, a senator or member of the House if that person – (c) is a member of the armed forces of Swaziland (Eswatini) or is holding or acting in any public office and has not been granted leave of absence for the duration of Parliament.”
Article 97 (1) (c) of the siSwati version provides as follows: “(1) Ngekungaphikisani nemitsetfo letfolakala esigabeni semashumi layimfica nesitfupha (96), umuntfu akavumeleki kukhonjwa, kukhetfwa noma kunconywa, njengaloku-fanele, kutsi abe yimphunga noma lilunga uma ngabe loyo umuntfu- (c) Ulilunga lembutfo wetekuvikela Eswatini noma usesikhundleni noma ubambele lomunye sikhundla ehhovisini leMbuso, kantsi usengakanikwa imvume yekushiya umsebenti wakhe ngalesikhatsi ayokuba lilunga lePhalamende.”
Judge Mavuso said as a direct interpretation of the English version, the siSwati version was much clearer on the time that a leave of absence letter was expected to be presented to the EBC. According to the siSwati version, a nominee was disqualified, if he or she had not received permission or the letter of leave of absence before terminating his employment and prior to being an MP. The judge said in the spirit of ensuring that every eligible citizen participated in the elections freely, without fear of losing his or her employment, if he or she be employed in whatever capacity, ‘the court is of the considered view that Article 97 (1) (c) should be accorded a liberal interpretation, which takes into account the need to give all citizens of the country an equal opportunity to participate in the national elections’.
“In line with the above, the court is of the considered view that the mandatory presentation of a letter of leave of absence to the second respondent (EBC), on a reading of the Article is after the primary elections, hence the phrase in the English version of the Constitution: “....has not been given leave of absence for the duration of Parliament.” “The court finds that it would be absurd for one to have and present a letter of absence on the day of nominations, because one attends not knowing whether or not he will be nominated and garner the required number of voters in favour of his nomination.
“How would one know he will be appointed such that he is required to get a letter of approval before the appointment is published?” The court upheld the teacher’s point of law, which ultimately rendered Lutfo’s application dismissed. Each party was ordered to pay their own costs. The teacher was represented by Mangaliso Nkomondze.
Dismiss
The court went on to dismiss Mabhanisi’s application. He was seeking an order directing that the primary elections’ special voting exercise for inmates be started afresh. The former Kwaluseni MP lost to Sifiso Shongwe, the son of incarcerated businessman Sipho Shongwe. Mabhanisi and the other applicants, Jabulani Nkambule and Dudu Zwane, who were indvuna yenkhundla candidates, wanted the court to order that they participate in the secondary elections tomorrow, pending finalisation of the matter.
The EBC raised points of law and argued that the applicants adopted a wrong procedure when approaching the court, and permitting them to take part in the elections tomorrow would be incompetent and unenforceable. Judge Mavuso said there was no provision permitting such. “A candidate cannot be catapulted by the court to the secondary elections, but must do so through amassing more votes than his or her competitors,” said the judge.
The court, according to Judge Mavuso, found it difficult to grant the prayer of a review and setting aside the inmates’ results due to the manner of counting of the votes being purportedly flawed.
Since Mabhanisi and his co-applicants did not file a replying affidavit, the court ‘has no alternative but to dismiss this application’. The applicants were represented by Sivesonkhe Ngwenya. Sibonginkhosi Dlamini appeared for EBC. The third application to be dismissed by the court was the one filed by the 16 applicants, who were turned away at Sigangeni Polling Station during the primary elections. The EBC alleged that they were employees of Futi’s eatery, which is owned by Vusi Dlamini, who lost to Witness Dlamini in the primary elections.
Arrangements
They wanted the court to order the EBC to allow and/or make arrangements for them to vote in the primary elections at Sigangeni Polling Station, under Siphocosini Inkhundla. The applicants did not apply for an order staying the special voting that was scheduled for Tuesday and the secondary elections slated for tomorrow. “Indeed, that on its own, would be a tall order,” said Judge Mavuso. The EBC raised a point of law to the effect that the order they were seeking was not enforceable.
Judge Mavuso said the doctrine of effectiveness required that courts issued orders which were practical and capable of enforcement. “It would not be practical and effective, at this eleventh hour, without the orders referred to above, to order the sixth respondent (EBC) to make arrangements for applicants to cast their vote for the primary elections...,” the judge said. The court went on to dismiss the application. The parties were represented by Senior Lawyer Sidumo Mdladla and Ndabenhle Dlamini, who is a Principal Crown Counsel.
