23 July 2008
'ELECTIONS TEAM CAN'T BE TAKEN TO COURT'
Stories by Sabelo Mamba
ATTORNEY General Majahenkhaba Dlamini told a High Court full bench that the Elections and Boundaries Commission (EBC) and the Judicial Service Commission (JSC) cannot sue and be sued in their own names.
The AG explained that Section 90 of the country’s constitution Act No. 001 of 2005 does not declare the EBC was a corporate body with the power to sue and be sued in its own name.
He said by the same token Section 159 of the constitution read with Section 3 of the Judicial Service Act 13/1982 does not confer separate legal persona on the JSC.
“Therefore, both commissions cannot be brought to court in their own names,” he argued.
The AG was making submissions during an application brought trade unions and political formations, which are challenging the constitutionality of both commissions.
Cited as applicants are Jan Sithole, Mario Masuku, Peoples United Democratic Movement, Ngwane National Liberatory Congress, Swaziland Federation of Trade Unions, Swaziland Federation of Labour and the Swaziland National Association of Teachers.
The respondents are government, Prime Minister Themba Dlamini, Minister of Justice and Constitutional Affairs Prince David, Attorney General, Chairman of the Constitutional Drafting Committee, House of Assembly Speaker and the Senate President.
The AG argued that the unions/parties ought to have cited the chairpersons of the commissions in their representative capacities.
“The applicants contend that the use of the word independent in Section 90 (1) and 159 (1) of the constitution implies that the EBC and JSC have power to sue and be sued in their own name,” he said.
“Put differently, the EBC and JSC are constitutional bodies and hence they can litigate. This contention was rejected by the court in Sipho Eric Thwala versus The Civil Service Commission and two others Civil case No. 269/2007 (unreported).
“The applicants further contend that in South Africa, that country’s constitution does not declare that the Independent Electoral Commission is a body corporate with power to sue and be sued in its own name. This contention is without merit in that it ignores the provision of Section 22 of the Electoral Commission Act 51/1996.”
“Prayer 2 of the so-called interlocutory application seeks a declarator that the composition of the EBC is unconstitutional. This prayer is not ancillary to a declarator that members of PUDEMO and the NNLC are entitled to be members of the EBC.”
He submitted that the constitutionality of the EBC ought to have been raised in fresh application.
The AG explained that the composition of the JSC was governed by the Judicial Service Commission Act, 1982. “Therefore, prayer 3 is an attack on the constitutionality of the JSC Act,” he said. “The constitutionality of the JSC Act ought to have been raised at the time the proceedings were initiated and not less than two weeks before argument.”
The AG was assisted by Mndeni Vilakati.
The full bench comprised Justices Stanley Maphalala, Jacobus Annandale and Mbutfo Mamba.
Paul Shilubane and Thulani Maseko represented the unions.