Motebang v Returning Officer For Constituency of Khafung No. 33 and Others, Sekhonyana v Returning Officer For Constituency of Maseru No. 32 and 12 Others (C of A (CIV) No. 3/2003 C of A (CIV) No. 4/2003)

Media Neutral Citation: 
[2003] LSHC 46
Judgment Date: 
14 April, 2003

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Headnote


Election Petitions - appeals noted against decisions of the High Court sitting as The Court of Disputed Returns dismissing such petitions. - Sections 69 and 129 of the Constitution read with the National Assembly Election Act, 1992, confer a special and exclusive jurisdiction on the High Court to determine any question arising from an election petition. - The Court of Appeal does not have jurisdiction to adjudicate upon any aspect of the appeals. Appeals dismissed with costs.


C of A (CIV) No. 3/2003 C of A (CIV) No. 4/2003

IN THE COURT OF APPEAL OF LESOTHO


In the matter between:

Thebe Motebang Appellant

v

The Returning Officer For Constituency of

Khafung No. 33 and 13 Others - Respondents

C of A (CIV) No. 3/2003

and

Bereng Sekhonyana Appellant

v

The Returning Officer For Constituency of

Maseru No. 32 and 12 Others - Respondents

C of A (CIV) No. 4/2003


Held at Maseru on .. April 2003


CORAM: Steyn, P

Grosskopf, JA

Plewman, JA


Judgment


STEYN,P


Argument in the above two matters was heard together. The same objection in limine has been raised in both matters by the respondents.


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In brief the issue is the following: Has the Court of Appeal jurisdiction to entertain an appeal against the decision of the High Court made in respect of an election petition when sitting as a Court of Disputed Returns?


The legislative framework which regulates the legal procedures concerning election petitions consists of the following:


  1. The Constitution

  2. The National Assembly Election Order 1992.

  3. The Court of Disputed Returns (National Assembly Election Petition) Rules 1993.


1. The Constitution


Under the heading "Decisions of questions as to membership of Parliament," section 69 of the Constitution provides as follows:


"(1) The High Court shall have jurisdiction to hear and determine any question whether -


  1. any person is validly nominated or designated as a Senator under section 55 of this Constitution;


  1. any person has been validly elected as member of the National Assembly; or


  1. the seat in Senate or the National Assembly of any member thereof has become vacant.


    1. An application to the High Court for the determination of any question under subsection (1)(a) may be made by any Senator or by any person who is registered as an elector in elections to the National Assembly or by the Attorney-General and, if it is made by a person other than the Attorney-General, the Attorney-General may intervene and may than appear or be represented in the proceedings.


    1. An application to the High Court for the determination of any question under subsection (1 )(b) may be made by any person qualified to vote in the election to which the application relates or by the Attorney-General and, if it is made by a person other than the Attorney-General, the Attorney-General may intervene and may then appear or be represented in the proceedings.


    1. An application to the High Court for the determination of any question under subsection (1)(c) may be made by any member of the National Assembly or by any person registered as an elector in elections to the National Assembly or by the Attorney-General and, if it is made by a person other than the Attorney-General, the Attorney-General may intervene and may then appear or be represented in the proceedings.


    1. Parliament may make provision with respect to -


  1. the circumstances and manner in which and the conditions upon which any application may be made to the High Court for the determination of any question under this section; and


  1. the powers, practice and procedure of the High Court in relation to nay such application, but, subject to any provision in that behalf made by Parliament


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under this subsection, the practice and procedure of the High Court in relation to any such application shall be regulated by rules made by the Chief Justice.


  1. The determination by the High Court of any question under this section shall not be subject to appeal."


Confirmation of the intention of the lawgiver to exclude the jurisdiction of the Court of Appeal in regard to determinations by the High Court of any question under section 69 of the Constitution is to be found in section 129. Under the heading Appeals to the Court of Appeal this section provides as follows:


" 129 (1) In addition to the right of appeal accorded by section 47 of this Constitution, an appeal shall lie as of right to the Court of Appeal from decisions of the High Court in the following cases, that is to say:


  1. subject to section 69 of this Constitution, final decisions in any civil or criminal proceedings on questions as to the interpretation of this Constitution, including any such decision made on a reference to the High Court under section 1 28;


  1. final decisions of the High Court in the determination of any question in respect of which a right of access to the High Court is guaranteed by section 1 7 of this Constitution and final decisions of the High Court under section 22 of this Constitution.


    1. Subject to section 69 of this Constitution, the Court of


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Appeal shall have such other jurisdiction with regard to appeals as shall be determined by Parliament.


    1. The Court of Appeal shall, when determining any mater other than an interlocutory matter, be composed of an uneven number of judges, not being less than three."


2. The National Assembly Election Order 1992 (the Order).


The following sections of this Act are relevant for present purposes:


2.1 CHAPTER 8 - ELECTION PETITIONS


2.1.1. High Court's jurisdiction in election petitions

Sec. 100 "The power to determine questions, in an election petition, relating to membership of the National Assembly is, in accordance with section 69 of the Constitution, vested in the High Court".


2.1.2. How and by whom an election may be disputed


Sec. 101 "An election may be disputed, in accordance with section 69 of the Constitution and the provisions of this Order by means of an application to the High Court and as may be prescribed by rules made under section 112 of this Order."


2.1.3 Requirements of an election petition An election petition shall -Sec. 102 (a) be presented to the High Court within 30 days


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after the end of the election period concerned; and


  1. set out the facts relied on to dispute the election or return;


  1. specify the order sought from the High Court; and


  1. be signed by the petitioner before a witness; and


  1. contain the signature, occupation and address of the witness."


2.1.4 How the High Court is to deal with an election petition


Sec 104 (1) The High Court shall conduct the trial of an election petition in open court.


  1. In determining a petition, the High Court shall be guided by the substantial merits of the case and good conscience, without regard to legal form or technicalities and shall not be bound by the rules of evidence.


  1. At the trial of an election petition, the Court has power -


    1. of its own motion or on the application of a party to the petition, to compel the attendance of witnesses and the production of documents; and


    1. to examine witnesses on oath; and


    1. to punish a contempt of its authority by fine or imprisonment.


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  1. The Court shall take all reasonable steps to ensure that -


    1. proceedings in relation to the petition begin within 30 days after the petition is lodged; and


    1. The Court's final orders in relation to the petition are given within 30 days after the end of the proceedings.


2.1.5 There are measures catering for the provision of security for costs and the powers of the High Court in Sections 106, 107 and 109 of the Act.


2.1.6 Under the heading: Orders of the High Court not to be subject to appeal the following appears:


2.1.5.1 "111. A determination or order or other action of the High Court relating to an election petition is final and cannot be appealed against or questioned in anyway."


  1. The Rules


By legal notice No. 54 of 1993 and pursuant to the Order, Rules were published under the title "The Court of Disputed Returns (National Assembly Election Petition) Rules 1993". In Rule 3(2)(c) provision is made inter alia for the service of the election petition on the Speaker. This requirement as well as the ensuing obligations of the Speaker are also dealt with in the Constitutional litigation Rules, section 14 of which reads as follows:


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"14. (1) An application under section 69 of the Constitution by members of Parliament, the Attorney-General or registered electors shall be brought on notice of motion supported by an affidavit as to the contentions upon which the applicant relies for relief.


  1. An application under sub-rule (1) shall be lodged with the Registrar and served on -

    1. in the case of the National Assembly, the Speaker of the National Assembly; and


    1. in the case of the Senate, the President of the Senate.


  1. The notice shall request the Speaker of the National Assembly and the President of the Senate to bring the application to the attention of all members in the relevant houses, in writing, within five days of the service on the Speaker of the National Assembly and the President of the Senate.


  1. Any member of the National Assembly or Senate, the Attorney-General or any registered elector who wishes to oppose the granting of an order sought in an application made under sub-rule (1) shall notify the Registrar, in writing and, within 10 days of the making of the application, of an intention to oppose.


  1. A notice under sub-rule (4) shall state the address, within 25 kilometres from the office of the Registrar, at which a member of the National Assembly or Senate, Attorney-General or registered elector will accept notice and service of all documents in the proceedings.



  1. If a notice under sub-rule (4) is given, the application shall be dealt with in accordance with the provisions of rule 1 1.


  1. If a notice to oppose is not lodged under sub-rule (4), the


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matter shall be disposed of in accordance with directions given by the presiding judge, which may include a direction -


  1. calling for an additional information as the presiding judge may consider to be necessary or expedient to deal with the matter; and


  1. that interested members of Parliament, who wish to call for additional information make written submissions relevant to the determination of the issue within a period specified in the direction." (Emphasis added)


Comment on the Framework


Seen as a cohesive whole these various provisions create the legal framework within which a disaffected election candidate can challenge the validity of an election in which he/she was an unsuccessful candidate. Counsel for the respondents in their submissions contended that the provisions set out above clearly excluded the Court of Appeal from exercising any jurisdiction in respect of the adjudication of any election petition lodged with the High Court pursuant to section 69 of the Constitution and section 101 of the Order.


Mr. Mosito on behalf of the appellant as I understood him, urged us to find that section 69 of the Act only excluded the jurisdiction of this Court if the High Court makes an order on the merits of the appeal. In this regard he relied most significantly also on the provisions of section 1 04 (2)


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of the Order cited above.


In both cases in casu the decision to dismiss the petitions was not based on the merits but on points taken in limine. These were that the Speaker should have been joined as a party in the litigation, that the petitions were presented to the High Court out of time and that the petitioners failed to provide security as ordered by the High Court. In both cases the preliminary objections were sustained by a Court consisting of three Judges.


The Constitution, the Order and the Rules create a legislative structure which is directed primarily at producing a fair result but one which is expeditious. The legislature has, as it were, traded off the right of appeal to a higher Court for the benefit of expeditious finality. Its motivation in this regard is readily understood. Should an election be a close run thing and election petitions are lodged which, if upheld, could turn a majority into a minority and vice versa, serious disruption could occur in the governance of the Kingdom. If aspirant parliamentarians were afforded the right of appeal - the delays of which are notorious in many jurisdictions - unacceptable uncertainty could follow.


The present case is an example of this danger. This Court was requested some four weeks before the commencement of this session to set the appeals down as a matter of urgency even though they were out of time. Therefore we were in April 2003 seized with an appeal in respect


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of electoral irregularities that were alleged to have occurred in May 2002. This is in my view an outcome which the legislature in its founding enactment would not wish to have countenanced.


There are several provisions in the statutory and regulatory framework set out above that demonstrate the intention of the legislature to achieve a balance between a fair outcome on the one hand and a rapid adjudication of election petitions on the other.


Section 69 states in clear and explicit terms that the determination by the High Court of "any question under this section" shall not be subject to appeal. The outcome of these petitions, i.e a decision by the Court rejecting the petitions and declining the relief sought, was that the two respondents, who were the successful candidates in the election were declared validly elected. This is one of the questions which was, in the result, determined by the High Court and in my view was made "under" section 69.


The provisions of chapter 8 of the order remove any vestige of doubt that the High Court has a special and exclusive jurisdiction. Section 100 vests the power to determine questions in an election petition in the High Court. Section 111 says that a determination, order or other action of the High Court relating to a petition "is final and cannot be appealed against or questioned in any way. "


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Mr. Mosito was heard to argue that we should read in the words "as required by the law" after the words "other action". This submission is untenable. It would simply negate the clearly expressed intention of the law-giver which is explicit in articulating its intention to exclude a right of appeal.


It must be borne in mind that this exclusion has its origin in the Constitution itself. It is therefore distinguishable from the approach to "ouster clauses" in conventional legislation. See in this regard Snyman vs Schoeman 1949 (2) S.A. 1 (A.D.); S v Rens 1996 (1) S.A. 1218 (CC); S v. Ntuli 1996 (1) S.A. 1207 (CC); Besserglik v Minister of Trade, industry and Tourism 1996 (4) S.A. 331 (CC); and de Villiers v Louw 1930 A.D. 426.


In the latter judgment Curlewis JA said at p430 in relation to the South African election legislation that:


"The provisions of the Act clearly indicate that the trial by a Court of Law of an election petition cannot be regarded as a trial of any ordinary action before a Court but as something special and distinct."


The distinct character of such proceedings has been recognized in the Constitution and is manifested by the provisions of section 69 and 1 29. Moreover the history of the development of the procedures to deal


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with legal challenges directed at the validity of an election also demonstrates the uniqueness of the process.


In the case heard by the Court of Disputed Returns of Lesotho in the Election Petitions between Abel Molepo Mathaba and 28 other petitioners and Enoch Matlaselo Lephema and 28 others Respondents ClV/APNS/182 to 206 and 208 to 210/1993 before Cullinan CJ., Molai J, and Kheola J., the Court analysed the history of how election petitions originated and developed. At page 1 5 of the judgment the Court says the following in this regard.


"It must be remembered that originally the jurisdiction to deal with election petitions was reserved to Parliament itself, the Grenville Act, 1770, subsequently reserving responsibility for the hearing of such petitions to a Select Committee of the House of Commons in England: see e.g. the Ludgershall Case (1) decided in 1791, the Dublin Case (10) decided in 1836 (see Halsbury ibid para 691) and the Dungarvan Borough Case (11) decided in 1854, that is, before jurisdiction in the matter was transferred to the Courts under the Parliamentary Practice, 21 Ed. at p.36 and Parliamentary Elections by Norman Schofield 3 Ed. (1959) at p.503)."


It should be noted that at p. 17 of the judgment in the Mathaba petition the Court also refers to "the mandatory and directory provisions of the Order which seek respectively to expedite the hearing and delivery of judgment in a petition. "


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Halsbury, Vol. 1 5, para 874 says the following in regard to the statutory provisions to Parliamentary and European Parliamentary elections concerning appeals:

(11) APPEALS


"874. Right of appeal. No appeal lies without the High Court's special leave from the decision of the High Court on any question of law, whether on appeal or otherwise, under the provisions of the Representation of the People Act 1983 relating to election petitions. If leave to appeal is granted, the decision of the Court of Appeal in the case is final and conclusive." This is an example of a different kind of jurisdictional limitation which a legislature can impose by way of an explicit provision.


Having due regard also to the historical development, there is nothing in the legislative framework which would justify this Court departing from the clearly expressed injunction of the Constitution, read with the National Assembly Election Act, 1 992 and the Rules promulgated thereunder that no appeal to this Court shall lie against the decision of a High Court dismissing an election petition. This Court therefore does not have the jurisdiction to adjudicate upon any aspect of this appeal. The Constitution does not allow it to do so.


The objections in limine are upheld and the appeals are dismissed with costs.


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PRESIDENT


I agree:

F.H.'Grosskopf

JUDGE OF APPEAL


I agree:

C. Plewman

JUDGE OF APPEAL


Delivered on the 14th April 2003.


Dr the Appellant : Mr. K.E. Mosito

Dr the Respondents : Messrs. Griffiths, Putsoane and Phafane


In all cases where emphasis has been indicated this has been added by us.