2 August 2008
Nominations go ahead as High Court dismisses NCA application
MBABANE -High Court judges yesterday threw out an application that sought to stop the nominations today.
The application was filed by political parties.
Justice Stanley Maphalala and Justice Jacobus Annandale dismissed the application, while Justice Mbutfo Mamba said he begged to differ.
However, there were no reasons given for the dismissal of the application, stating that they will follow in due course.
The National Constitutional Assembly (NCA) was the First Applicant in the matter, in which teachers, labour federations and banned political parties are also listed as applicants.
Prime Minister Absalom Themba Dlamini was the first respondent, while the government, Minister of Justice and Constitutional Affairs Prince David and the Elections and Boundaries Commission (EBC) were listed among the respondents.
In papers filed in court on Thursday, the applicants said they were aware that the EBC had announced in the media that nominations would be held today and tomorrow, while Secondary Elections would be conducted on September 19, 2008.
"We respectfully state that the question of participation of political organisations in the elections is yet to be determined by a full bench of this court arising from the wording of Section 25, as read with Section 84 (1) of the constitution, understood in the light of Section 1 of the constitution," reads a founding affidavit deposed by Thamsanqa Hlatshwayo of the Ngwane National Liberatory Congress (NNLC).
The NNLC was listed as the Fifth Applicant in the matter.
The affidavit also states that it is the applicants’ case that the nature and content of the fundamental right and freedom to associate and assembly invariably encompasses the lawful existence of political organisations as citizen’s voluntary associations to organise and contest power.
"The applicants humbly submit that the EBC is constitutionally mandated to conduct free and fair elections, which must be genuinely democratic as envisaged by Section 1 of the constitution, as read with Section 84 (1) thereof.
"The fact that the EBC is conducting the elections without a mechanism through which organised political associations are allowed is a violation of the constitution, as there can be no democratic free and fair elections without the participation of political organisations.
"It is stated that the current Electoral Order of 1993 in terms of which the elections are being conducted is unconstitutional in that it does not provide for the registration of political parties to take part in the electoral process, contrary to Section 25 as read with Section 84 of the new constitution," reads the affidavit.
The applicants submit that the respondents must be interdicted from conducting the Primary and Secondary Elections, as well as the entire electoral process pending the final determination of the case the applicants filed at the High Court earlier.
The applicants say they are advised and verily believe that the requirements for the grant of an interim interdict in constitutional matters are more relaxed than in an ordinary application.
They say the respondents have not shown any legitimate purpose to be served by excluding organised political organisations from participating in the elections.
"It is submitted that this honourable court has a duty and obligation not only to ensure that the constitution is respected but significantly to enforce the fundamental rights and freedoms contained in the Bill of Rights," reads the affidavit.
They also contend that they do not have any other remedy through which their rights may be protected except by an application for an interim interdiction to preserve the status quo.
Allowing the EBC to proceed with the elections, while the other matter is pending in court would be equivalent to subvention of the constitution and the rule of law, they say.
They say the matter is urgent because nominations are to be conducted this weekend.
The applicants were represented by attorneys from Shilubane, Maseko and Partners, while the Attorney General’s office represented the respondents.