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HIGH COURT STOPS SENATE ELECTIONS

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MBABANE – The High Court has stopped the Senate elections for now.

The elections will proceed after the court has heard and determined the application that has been filed by Bhutana Dlamini, who wants to be furnished with reasons for his disqualification from the Senate race. Judge Nkosinathi Maseko also ordered the Clerk to Parliament, Benedict Xaba, Speaker Petros Mavimbela and the Elections and Boundaries Commission (EBC), to furnish Dlamini with the reasons for disqualifying him from the elections within seven days of the order. The court further ordered that the decision to disqualify him be reviewed and set aside and declared that he qualifies to stand for the elections. Judge Maseko ordered that the orders are to operate with immediate and interim effect. The matter will be heard on November 10, 2021.
In the State’s preliminary points of opposing Dlamini’s application, Assistant Attorney General Mndeni Vilakati argued that the matter was not urgent because there was no date which had been set for the elections to be conducted ‘and therefore the applicant’s (Dlamini) basis for approaching the court on urgency is entirely speculative’.

Exclusion

Vilakati also argued that since Dlamini alleged that his exclusion from the elections was unconstitutional, he assumed the status of an aggrieved person, who was empowered by the Parliament (Petitions) Act of 2013 to challenge the validity of an election.
He further submitted that Dlamini had prematurely set the process of law in motion because he had to wait until the election was conducted and then challenged its validity on the basis of Section 3(2)(c) and (d) of the Parliament (Petitions) Act, 2018.
Judge Maseko said Section 3(2)(c) and (d) did not stop an aggrieved person in Dlamini’s position from approaching the court to compel the clerk to Parliament to provide him with the reasons where same were requested and without any reason not provided.

Derrick Jele, who represents Dlamini in the matter, submitted that his client desired to participate in the elections for the vacant Senate seat for which he was nominated and he accepted the nomination. Jele told the court that the urgency of the matter was created by the fact that the elections may be conducted at anytime in future ‘and if the applicant is not supplied with the reasons for his disqualification, so that he could challenge such reasons through review proceedings, then he will suffer irreparable harm because he would not have participated in the elections which he so much desires to participate in’. According to Jele, the situation did not only render the matter urgent, but also, Dlamini discharged the requirement for the grant of an interdict on the perceived irreparable harm likely to be suffered by him in the event the proceedings were to take the normal course.

Judge Maseko said in his view, Jele’s argument that Dlamini desired to participate in the elections clearly established the urgency ‘because nobody knows when the elections will be conducted’. “I am in agreement with Mr Jele because Section 28(2) clearly vests such powers and authority on the second respondent (Speaker) to fix a date, time and place at which a sitting of the electorate would be held for the purpose of conducting the elections to fill the vacant Senate seat in compliance with Section 5 of the Act i.e. Act No.7/2013. “The suspension of elections on September 2, 2021 by the electorate was in reaction to the exclusion of the applicant by the first and second respondents (clerk to Parliament and Speaker) and not because they (electorate) have powers to initiate the election process.”

Judge Maseko said Dlamini was not seeking a relief from the court which interfered with the duties of Parliament to the extent that the doctrine of separation of powers be invoked. “This court is not being asked to deliberate on a Bill or any of functions of Parliament, but all what the applicant seeks to be provided with are reasons why he was disqualified to participate in the elections of  September 2, 2021, and most importantly because the allegation is that he won by majority vote of the electorate,” said the judge.

Majority

Judge Maseko said he was alive to the fact that the respondents were still to file their answering papers and might deny that Dlamini won by majority vote. The judge said he was convinced that the matter was urgent and it was within Dlamini’s right to institute the current proceedings ‘to be able to deal with the adverse finding of disqualification from participating in the elections as communicated to the electorate on September 2, 2021’. “It must be borne in mind that he was in fact disqualified and excluded from the ballot papers without having been informed of such and also not given an opportunity to present his side of the story. The urgency is not therefore self-created because even though there is no date and time and place fixed by the Speaker for such by-elections to be conducted, it can easily be inferred that when Parliament resumes its business in the near future, surely this is one matter that the clerk and Speaker must deal with, owing to the fact that the Speaker is the one vested with the powers to fix the date, time and place for the Senate by-elections to be conducted in terms of Section 28(2) of Act 7/2013,” added the judge. Judge Maseko stated that Dlamini was not in control of the Senate by-elections process but it was the clerk to Parliament and Speaker who had such powers. Dlamini, according to the court, clearly set out his reasons for urgency and acted promptly to pass the urgency test.

Interim

The court also considered the submission by Vilakati that ‘an applicant seeking an interim interdict must demonstrate to a court that in the event he seeks to interdict proceeds, the results of the event are not reversible’. Jele submitted that it would be cumbersome and an inconvenience for Dlamini to let the elections be conducted in his absence and then come at the 11th hour and try and ‘unscramble a scrambled egg’. Judge Maseko said: “I am in agreement with Mr Jele’s counter-argument because the applicant will lose to participate in the elections in terms of Section 5 of Act 7/2013. It is this adverse finding against him by the clerk to Parliament, Speaker and EBC that he must deal with which has resulted in his disqualification and exclusion from the ballot papers. I am, therefore, not persuaded by Mr Vilakati’s arguments as regard all the points in limine which were raised by the clerk to Parliament, Speaker and EBC.” The court also dismissed the point on separation of powers and ordered the respondents to pay costs of the proceedings up to the ruling. Dlamini told the court that he had a clear right to the reasons for his disqualification. He said he deserved to know the reasons for his disqualification. The clerk of Parliament, according to Dlamini, as adjudicating authority, was obliged in law to furnish him with the reason for his decision.  Vilakati appears in the matter together with, Principal Crown Counsel Ndabenhle Dlamini and Crown Counsel Nokwanda Makhanya.

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