Monday, August 4, 2008


Weekend Observer

2 August 2008


By Sabelo Mamba

A High Court full bench yesterday dismissed an application brought by trade unions and political formations, which were seeking an order stopping today's nominations and the subsequent elections.

Judge Stanley Maphalala, handing down the judgement at 6: 35p.m, said reasons for the decision would follow in due course.

Justice Jacobus Annandale indicated that he agreed with the verdict save for Justice Mbutfo Mamba, who informed the parties that he would deliver his own verdict in due course.

"I disagree and my reasons will follow in due course," Justice Mamba remarked.

The unions/parties, represented by attorneys Paul Shilubane and Thulani Maseko had contended that the elections cannot proceed since there was a pending case in court where the same parties are challenging the legitimacy of the Elections and Boundaries Commission (EBC) and its members.

However, Attorney General Majahenkhaba Dlamini raised points of the law- one being that the unions/parties (applicants) had no legal standing (locus standi) to bring the proceedings in court since they had not shown that they were registered voters.

He argued that, as a result, they had no direct and substantial interest in the elections.

"They cannot come before this court to stop the elections when they have not been registered as voters. Only registered voters have direct and substantial interest in the elections."

The AG also contended that there was nothing in court papers that showed that Thamsanqa Hlatshwayo, of the Ngwane National Liberatory Congress (NNLC) was authorised to file an affidavit. Dlamini said there had to be a resolution of meeting giving Hlatshwayo the mandate to bring an affidavit before court.

"Hlatshwayo's affidavit in itself has no legal standing in this application," he said.

He said no confirmatory affidavits were signed in support of Hlatshwayo's application.

The AG also said the unions/parties had not demonstrated what irreparable harm they would suffer if the elections were to proceed.

"They are unlikely to suffer anything. It is only the respondent (government) which is going to suffer because we won't know when we will have a new government," he submitted.

Attorney Vusi Kunene, who assisted the AG, submitted that the parties/unions had not shown that there was urgency in their application.

He argued that the parties/unions knew that after the dissolution of parliament there would be elections within 60 days, adding that they did nothing until this week by serving government with a notice of application. "For that reason, this matter is not urgent," he said.

Meanwhile, Lawyer Maseko said the legal points raised by government were more of a technical nature.

He argued that they do have legal authority to bring the proceedings.

"The fact that a right is about to be infringed is enough for any citizen to approach this court," he said.

"It is not necessary to be a registered voter, who should approach this court. There is no law which states that only registered voters can approach the court."

He said the unions/parties would suffer irreparable harm if not granted the relief sought since they have been denied their right to contest the elections as political parties as per Section 25 of the country's constitution.

Maseko said the unions/parties had suffered harm already in that they were excluded from the local government elections.

"It's not true that we delayed in bringing the proceedings. This matter came before court in April, but the court could not form a full bench, hence it's not the applicants' fault," he said.

He submitted that parliament was dissolved on June 30, but the gazette for the nominations was published on Wednesday (July 29), three days before the nominations.

"The voters themselves were not given time to prepare themselves," he said.


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