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MBABANE – The Supreme Court yesterday said Bhutana Dlamini was eligible to participate in the Senate elections.

In a judgment that was issued yesterday, the court stated that as at September 2, 2021, Dlamini was compliant with Section 96 of the Constitution and, therefore, eligible to participate in the Senate elections. Section 96 states that a person qualifies to be appointed, elected or nominated a senator or member of the House if he is a citizen of Eswatini, has attained the age of 18 years, is a registered voter and has paid all taxes or made arrangements satisfactory to the commissioner of taxes. Judge Sabelo Matsebula said the argument advanced by Xaba that by September 2, 2021, which was the day of the elections, Dlamini was already disqualified and, therefore, not eligible to participate in the elections, had no merit.


The judge said it had no merit because Dlamini’s vetting and the verification of the commissioner of taxes’ Tax Compliance Certificate was not sanctioned by law as stated and, therefore, this exercise, which resulted in the erroneous decision, was unlawful and could not stand in law. According to Judge Matsebula, Xaba after receiving the letter addressed to the national commissioner of police with the schedule that showed that Dlamini owed E668.20 in taxes, did not call him to explain or inform him of the owed taxes. The judge said Xaba did not inform or explain to Dlamini that unless there was a plausible explanation concerning the tax debt, he would disqualify him. “The disqualification could have taken effect at that time had the returning officer given the respondent (Dlamini) a hearing. No reason for the decision disqualifying the respondent from participating in the Senate elections has been given. The returning officer is jot truthful when he says he was waiting to be asked before he could give the reasons.


“Evidence in the papers is that he was asked for the reasons on the very date of the elections in Parliament and later by the respondent’s (Dlamini) attorney and he still refused to give them. It was not until he was compelled to do so by the court a quo (High Court),” said Judge Matsebula.
The Supreme Court went on to state that Dlamini was correct to believe that he qualified as he had not been called to a hearing, had not been informed of the unilateral disqualification and no reasons were given.

This behaviour by Xaba, according to the court, was irrational and also unlawful as the other party had not been heard. The court said no person should be judged without a fair hearing, at which each party was given the opportunity to respond to the evidence against them.  Judge Matsebula heard the appeal together with Judge Robert Cloete and Acting Judge Mabandla Manzini. The judges’ decision was unanimous. Advocate Lucas Maziya appeared for the appellant (Xaba) on the instruction of Principal Crown Counsel Ndabenhle Dlamini. Derrick Jele represented Dlamini.

In the High Court, Dlamini wanted the court to declare that he qualified to stand for the Senate elections to replace the late Jimmy Hlophe who had replaced Mike Temple, who also died. He also wanted the decision to disqualify him to be reviewed and set aside. In the Supreme Court, he told the Supreme Court that there was nothing in the Constitution and Senate Elections Act that allowed Xaba to vet him. In his heads of argument in the appeal by the clerk to Parliament, after the High Court ruled in his favour, the Senate hopeful stated that the powers exercised by the former should be sourced from the law. He argued that Xaba did not have such powers. One of the grounds of appeal by Xaba was that Judge Maseko had erred in law in holding that Dlamini was entitled to a pre-disqualification hearing under Section 33 of the Constitution.


Meanwhile, Xaba submitted that the contentious issue was part C of Section 96 of the Constitution, which concerns taxation. Section 96(c) provides that a person qualifies to be appointed, elected or nominated as a Senator or a member of the House if that person (c) has paid all taxes or made arrangements satisfactory to the commissioner of taxes. “There is no doubt that, therefore, the respondent had to be vetted for purposes of ascertaining his qualification his qualification of election into Senate. He was found wanting in respect of the tax compliance requirement. “In a bid to prove his eligibility in terms of Section 96 (c) of the Constitution, respondent furnished first appellant with the document. Respondent is superficially declared tax complaint for Senate elections. The clearance certificate is dated August 19, 2021. It is expressly declared valid for the seven listed transactions. They exclude elections. It was issued by one Nobuhle,” read Xaba’s heads of argument.

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