MKHULULI OUT OF ELECTIONS RACE

MBABANE – As the race to Parliament heats up, former Senator Mkhululi Dlamini has been ‘elbowed’ off the track.

He is out of the race. The Supreme Court yesterday set aside the decision of High Court Judge Zonke Magagula, who ordered the Elections and Boundaries Commission (EBC) to either include his name in the voters roll or hold special nominations for Maphilingo Umphakatsi under Siphofaneni Inkhundla.

The court also granted the EBC’s application to stay the order of the High Court and to intervene in terms of Section 148(1) of the Constitution as a result of a miscarriage of justice committed by the High Court by issuing an order Mkhululi had not prayed for. It had been further prayed by the EBC that the Supreme Court should also intervene in terms of Section 148 (1) of the Constitution in that the EBC was ordered to pay costs of suit, which Dlamini had not prayed for in his notice of appeal. The Supreme Court went on to dismiss the points of law raised by Mkhululi, who, through his attorney, Mzwandile Dlamini of M.S. Dlamini Legal, argued that the court only had powers to review decision made or given by it.

He said: “In the present matter, the decision the applicant (EBC) seeks to review was given by the High Court. The above honourable court (Supreme Court) does not have review but appeal powers from matters decided by the High Court. “The above honourable court’s appellant power of decisions of the High Court is ousted in this particular matter by Section 19 (6) of the Voters Registration Act of 2013. This particular section specifically states that there shall be no appeal that will be against the decision of the High Court on such matters,” Mzwandile argued.

Objection

Mkhululi’s name was removed from the voters roll of Othandweni Primary School Polling Station after a resident raised an objection that he was not from Maphilingo, under Siphofaneni Inkhundla. He approached the High Court for leave to appeal the decision of the EBC to remove his name from the voters roll. Judge Justice Mavuso granted Mkhululi leave to appeal. He filed a notice of appeal at the High Court and the matter was heard by Judge Magagula.

Judge Magagula ruled in his favour and the EBC approached the Supreme Court with urgency to stay the order of the High Court. The matter was heard by Judge Majahenkhaba Dlamini together with Judge Judith Currie and Judge Mzwandile Fakudze on Tuesday. The EBC was represented by Sibonginkhosi Dlamini. He said there was no chance that Mkhululi’s name could be included among MP nominees under Maphilingo Umphakatsi.  Sibonginkhosi said the order of the High Court was incapable for being implemented.

“The order to include his name on the voters roll cannot be implemented because his nomination was not formalised. There was a riot after he was nominated and Form II was not filled. We don’t know if he had any supporters,” said the government attorney. Sibonginkhosi also told the court that the prayers granted by Judge Magagula at the High Court had not been prayed for by Mkhululi. He also alleged that the High Court usurped the powers of the EBC by ordering that Mkhululi’s name be included on the list of nominees.

Independence

He pointed out that Section 90 (1) establishes the independence of the EBC. The section provides that: “There shall be an independent authority styled the Elections and Boundaries Commission (‘the Commission’) for Swaziland (Eswatini) consisting of a chairperson, deputy chairperson and three other members.” Sibonginkhosi further argued that the High Court committed a gross irregularity by granting prayers that were not prayed for by the respondent (Mkhululi), ‘which resulted in a miscarriage of justice’. “It is trite law in our jurisdiction that a court cannot grant a prayer that has not been prayed for by a party in court proceedings,” argued Sibonginkhosi.

According to the EBC, Mkhululi’s notice of appeal did not contain the prayers that the High Court subsequently granted on August 18, 2023. Sibongiseni said to remove any benefit of the doubt, Mkhululi, in his notice of appeal, raised four grounds of appeal; (a) The EBC removed his name from the voters roll of Othandweni Primary School Polling Station without a valid objection being lodged in terms of Section 18 (2) of the Voters Registration Act No. 4 of 2013,

(b) The EBC based its decision on an alleged objection it received on July 22, 2023 when the voters roll verification was closed on July 12, 2023, with the effect that the names that appeared on the voters roll July 22 were final, (c) The EBC took a decision to remove the name of the applicant without hearing the side of the applicant and thereby committed an error of law.

Insisted

Mkhululi insisted that he was nominated for the position of MP and it is possible to include his in the voters roll. His attorney, Mzwandile, told the Supreme Court that it was within the capacity of the Elections and Boundaries Commission (EBC) to implement the order of the High Court.
Mzwandile submitted that there was only one body that conducted elections in the country. He argued that Mkhululi was nominated. At first he said Mkhululi was partly nominated. Judge Majahenkhaba Dlamini said one was either nominated or not. “You can’t be partly nominated,” said the judge.
Mzwandile said his client was nominated. He accused the EBC of failing to complete the process after Mkhululi had been nominated.

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