INCLUDING MKHULULI ON NOMINEES LIST WILL CAUSE CHAOS – AG

MBABANE – The Elections and Boundaries Commission (EBC) is challenging the High Court order to have outgoing Senator Mkhululi included in the list of Member of Parliament (MP) nominees.

Through the attorney general (AG), the EBC Chairperson, Prince Muhlabuhlangene, has filed papers at the Supreme Court and believes that this order by the High Court will put the whole election into disarray, resulting in the timeline for holding elections within 60 days after dissolution, as prescribed in Section 136(1) of the Constitution Act of 2005 and the Proclamation of General Elections No.95 of 2023, not being met. Thus, the EBC argues, that this will render the whole election unconstitutional and, in addition, there is a likelihood of lawsuits ensuing against the commission of the order of the High Court to be implemented. On Friday, High Court Judge Zonke Magagula gave the EBC two options: the first was that the EBC should hold a special nomination process at Maphilingo Royal Kraal to determine the nomination of Mkhululi; the second was that the EBC should include Mkhululi’s name in the list of nominees for MP position for Maphilingo Royal Kraal.

offended

The judge said either of the two is to be done by noon on August 21, 2023 (Monday). In the appeal papers filed last night, the EBC has submitted that it is offended by the miscarriage of justice in the High Court, hence the application for the Supreme Court’s intervention using its supervisory powers as envisaged under section 148 (1) of the Constitution. Section 148 (1) provides that: “The Supreme Court has supervisory jurisdiction over all courts of judicature and over any adjudicating authority and may, in the discharge of that jurisdiction, issue orders and directions for the purposes of enforcing or securing the enforcement of its supervisory power.” The EBC said it had identified a number of exceptional circumstances in the form of gross irregularities, injustices and/or errors of law allegedly committed by the learned High Court, which warrants that the Supreme Court exercise its discretionary powers and intervene in terms of the said section 148 (1) of the Constitution. The EBC has listed a number of alleged gross irregularities, injustices and/or errors of law. The commission has urged the Supreme Court to take note, from the onset, that in Mkhululi’s notice of appeal, there was no prayer for a relief sought by him.

justification

“Despite that the applicant raised a point of law that there was no prayer for relief sought by the respondent, the court a quo overlooked that defect without any lawful justification and dismissed such point of law,” the EBC has argued. The EBC has alleged that firstly, the High Court committed an error of law and, therefore, a miscarriage of justice has been done by failing to follow the procedure for handling of appeals as outlined in Section 19 of the Voter Registration Act No. 4/2013, in particular Section 19 (3), by failing to order the party at whose request the decision is submitted to furnish security for any costs allowed against that person, which failure to furnish such security rendered the appeal withdrawn. “This is of grave importance because, although it has been widely reported in the newspapers that the respondent has deposited security costs, there is no evidence to prove this,” the EBC has submitted.

application

The EBC, through its Chairperson Prince Muhlabuhlangene, last week filed an application for an order that Mkhululi should deposit an amount of E200 000, which was to be in the custodian of the registrar of the High Court. The EBC wanted Mkhululi to avail the money before Friday’s appeal, in terms of Section 19(3) of the Elections Act of 2013. Mkhululi had said he would raise the money and that he had deposited the amount as required. Secondly, in the papers filed yesterday, the EBC have alleged that the High Court committed an error of law, which resulted from a gross miscarriage of justice by ordering the commission to hold a special nomination process to determine the nomination of Mkhululi at Maphilingo Umphakatsi, a place where he was openly rejected when an attempt to nominate him was made. “This prayer has not been applied for by the respondent nor has there been any assertion that he was duly nominated at Maphilingo Umphakatsi. The prayer was mero motu granted by the court a quo (the High Court made a decision on its own without being prompted by anyone else), thus by so doing, the court a quo committed a grave error of law and this court should intervene. The court a quo acted ultra vires its powers by granting prayers which were not prayed for by the appellant,” the EBC avers.

committed

Thirdly, the EBC alleges that the High Court committed a grave error of law, which resulted in a gross miscarriage of justice by ordering that alternatively, the commission should include the name of Mkhululi in the list of nominees for the MP position at Maphilingo Umphakatsi. The commission has submitted that the High Court failed to take into consideration that it is bound by the law and should act in terms of the law when exercising its powers. “The applicant cannot just wake up in the morning and decide to include or exclude a voter in the voters’ roll without following the due process of the law. In this case, in order for a person to be included in the voters’ roll, he or she should have been nominated by registered voters at his or her chiefdom,” the EBC further submitted.

The commission has further stated that Mkhululi’s nomination was not performed and/or completed as there was riot of the voters at Maphilingo Umphakatsi caused by the inclusion of his name in the voters register, when he was not from Maphilingo, even before his alleged nomination was formally completed. The EBC has argued that by ordering the inclusion of Mkhululi’s name in the list of nominees for the Maphilingo Umphakatsi MP position, the High court committed a gross miscarriage of justice as the law should be complied with at all material times and the commission should always be guided by the electoral laws of the land including, but not limited to, the Constitution Act No. 001/2005, the Elections and Boundaries Commission Act of 2013, the Voters Registration Act of 2013, the Elections Act of 2013, as well as the Proclamation of General Elections of Members of the House, indvuna yenkhundla and bucopho Legal Notice95 of 2023.

process

Fourthly, the EBC has alleged that the High Court granted the prayer for a special nomination process without considering that the nominations that were held at Maphilingo Umphakatsi on July 22, 2023, were not nullified through a court order, thus they still stand. “This puts the other nominees in a precarious situation, since they were not cited in the proceedings before the court a quo and thus their side of the story was not heard,” said the commission. The EBC has added that because of all these factors, the order of the High Court will surely put the whole elections in disarray. The commission believes that the order by the High Court is unenforceable because not only is it tantamount to imposing Mkhululi on the people thus taking away the right of the people of Maphilingo to be represented by their own freely chosen representatives, much against the spirit of Section 84 (1) of the Constitution. “The order also presents another hardship because all ballot papers and elections material have already been procured and printed and there is no budget that is specifically set aside for the respondent,” the EBC submitted.

argues

The Commission also argued that the elections process was no longer at nominations stage and has progressed to primary elections and there was no guarantee that Mkhululi shall be nominated, hence the order is not justifiable in law and its effect will unnecessarily burden the EBC to incur the cost of the nominations and reprinting the ballot papers, which processes have already been finalised. Additionally, the EBC is of the view that the order of the High Court has the implication of usurping the powers of the commission, whose decision is final in terms of the determination of whether or not a person is duly nominated as provided in Section 34 (5) of the Elections Act 6/2013.  The matter is before the Supreme Court, under a certificate of urgency and the EBC is seeking a stay of the order issued by the High Court on Friday. The EBC argued that if the matter was to take its normal course, the commission would be expected to implement the impugned court order on the prescribed date of the August 21, 2023. The commission said it would not be afforded substantial relief in due course because the date, which was prescribed by the High Court for the implementation of the impugned court order, would have passed and the order implemented. Further, the EBC said if the matter can be dealt with in terms of the normal time limits, the commission would be held in contempt of court.

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