9 September 2008
THE High Court has been asked to dismiss an application challenging the validity of the primary elections at Ezulwini Polling Station because the Attorney General has not been cited.
Government lawyer Ticheme Dlamini told Judge Jacobus Annandale that failure to cite and serve the AG's office was fatal to the application.
He argues that such failure renders the application to be dismissed with costs.
Dlamini is opposing an application brought by Phumlani Dlamini, Phineas Shongwe, Jabulani Dlamini, Vivian Dlamini, Sifiso Kunene and Nyosana Dlamini, who are seeking an order setting aside the primary elections for the posts of Indvuna Yenkhundla and Member of Parliament.
The six candidates alleged that hundreds of voters were turned away by a returning officer, who then closed the poll.
Dlamini argued that the Elections and Boundaries Commission (EBC) was a creature of statute, being the country's constitution Act 1/2005 Section 90.
"The creating statute does not give corporate existence to EBC, and for this reason it has no locus standi (legal standing)," he submitted.
"The guarantee of independence to the Elections and Boundaries Commission as per Section 90 (1) and 90 (13) does not vest it with locus standi.
"The independence is only in respect of the performance of its functions. The EBC is an organ of the government, with secretarial support provided by the ministry responsible for the elections."
Dlamini said for the above reasons the Attorney General was a necessary party, adding that the office ought to have been cited and served with the application.
Thulani Maseko is appearing for the applicants.