Africa-Press – Eswatini. Government has run to the Supreme Court to seek a reversal of the High Court full bench order that allows losers in the national general election to lobby for seats in Senate.
Prime Minister (PM) Cleopas Sipho Dlamini, Minister of Justice and Constitutional Affairs Pholile Shakantu and Attorney General (ag)Sifiso Mashampu Khumalo, want the Supreme Court to reinstate an appeal that was noted on November 21, 2018 after the full bench of the High Court ruled that Section 5(3) of the Senate Elections Act of 2013 was unconstitutional.
This ruling, which was in the matter between formeR Lobamba Member of Parliament (MP) Michael Vusani Masilela and the Elections and Boundaries Commission (EBC), opened the way for those who had lost in the recent national general election to contest for Senate seats.
Having lost the elections in 2018, Masilela ran to court and successfully sought an order declaring Section 5(3) of the Senate Elections Act of 2013 as inconsistent with Section 97 of the Constitution. Section 97 of the Constitution gives a list of qualities that disqualify a person from being nominated or elected into Senate and nowhere does it mention losing in the ‘recent general election’ as one of those. The grounds mentioned in Section 97 include being insolvent, under sentence of death or imprisonment of more than six months and not being eligible to be a voter, among other things. As a result of reviving the appeal, the Senate Elections (amendment) Bill of 2023, which seeks to allow losers in the recent national general election to lobby for Senate seats, has been withdrawn from the House of Assembly where it had been tabled alongside the Elections (Amendment) Bill of 2023 and the Voters Registration (Amendment) Bill of 2023.
Affidavit
In the revived appeal, Minister Shakantu has deposed to a founding affidavit in which she outlines that as things stands, the effect of the High Court judgment is that a candidate who lost House of Assembly elections is able to thereafter stand for election into Senate. “This is an undesirable second bite at the proverbial cherry. There is one general election every five years at three levels, from chiefdom level to the inkhundla level and to the House of Assembly level. If a candidate loses at any stage or level, he has lost for good in that general election. The loss is a clear vote of no confidence in that candidate by the electorate. The judgment, therefore, offends against the free will of the electorate,” argued the minister. It is her submission that government, being dissatisfied with the judgment, noted an appeal in 2018 whose record was also filed and waited enrolment in the next session of the Supreme Court in the year 2019.
The minister submits that there then arose a supervening event that derailed the appeal. “As neither the chairperson of the Election and Boundaries Commission nor the Clerk to Parliament who conducted the Senate elections was cited and/or interdiction, the elections were proceeded with on or about November 28, 2018,” further submits the minister.
She said Masilela was not nominated for the election into Senate on that second occasion and the appeal was thereby rendered nugatory. She also submitted that the appeal was thus not pursued by both government and Masilela, neither did the registrar of the Supreme Court cause it to be enrolled nor were heads of argument filed by both parties in the evidently moribund appeal.
Reason
“There is no certitude that the appeal was ever enrolled and later fell off the roll for one reason or the other. Certainly, it was never withdrawn or abandoned as a matter of fact. This application proceeds from the premises that there has been a four-year lull from January 2019 to present (April 2023), so as to render the appeal lapsed by effluxion of time by any reasonable standards,” Shakantu argued. She stated that the appeal may have fallen academic because of the Senate elections that were conducted on or about November 28, 2018, however, that did not per se remove it from the court’s list of awaiting matters pending enrollment for determination. “Now that we have reached the next election year from 2018 when the dispute first arose, the same issue re-emerges and becomes live again. Is Section 5(3) of the Senate Elections Act 7/2013 unconstitutional as so pronounced by the court a quo whose decision was appealed to this court?” the minister asked. Shakantu pointed out that with the looming parliamentary elections to be followed by Senate elections any date from now, it was imperative to know how to proceed with the latter elections.
She said the lingering uncertainty was not in the interest of justice. “Yes, the High Court judgment of 2018 certainly declared the section unconstitutional. However, the noting of the appeal automatically stayed the judgment. It is equally in the interest of justice that there be finality in the litigation,” she further argued, and noted that it was imperative that the appeal be heard and determined to put to an end the legal issue of the constitutionality or otherwise of Section 5(3) of the Senate Elections Act. According to the minister, it goes without saying that the delayed prosecution of the appeal was occasioned by the supervening Senate elections in 2018 that came in between the noting of the appeal and its enrolment for hearing, which the latter event never came to be. It was her submission that the supervening event created reasonable indecisiveness on all parties concerned. “It had the inescapable legal effect of rendering the appeal between the parties academic, serving no practical purpose. The court would have certainly declined to hear the appeal under those circumstances. This is evident from the current decisions of this court on moot or academic cases,” stated the minister.
The minister submitted that Masilela stood to suffer no prejudice in the reinstatement of the appeal four years later, because after the High Court full bench judgment, he again declared his candidature for the 2018 Senate elections and was not nominated at all. She argued that the hearing of the appeal would be in the interest of Masilela too. “If this court dismisses the appeal, he would be free to contest both parliamentary and Senate elections in succession and enjoy the benefit of the judgment a quo. Even if the appeal were to succeed, respondent (Masilela) would certainly know the procedure and decide to stand for election to either the House of Assembly or Senate, not both,” contended the minister. Shakantu said there appeared to be good prospects of the appeal succeeding and she firmly believed that the Learned Justices of the High Court erred in declaring Section 5(3) of the Senate Elections Act unconstitutional as considered against Sections 20 and 84 of the Constitution. She argued that the High Court decision was legally untenable firstly because Section 20 of the Constitution had a self-defining clause 20(3), unlike Section 29 of the Employment Act of 1980 which is a mere list of prohibited grounds of discrimination.
Proclaims
“The former defines what discrimination is, while the latter does not. The former clearly proclaims itself an exhaustive list by definition and the latter is not exhaustive. Ultimately, the former is not permissive of the class rule of statutory construction yet the latter is. Therefore, the law in the Satellite Investments (Pty) Ltd case cuter in the judgment a quo is inapplicable and was wrongly applied to respondent’s case,” argued the minister. Secondly, the minister said what was seen in Section 5(3) of the Senate Elections Act was a case of differentiation rather than a case of discrimination. “The circumstances in the Act are different from those of the Constitution. The Act does not discriminate between similarly circumstanced Senate candidates, but differentiates between those who have already lost the elections race for the Assembly and those who enter the race for the first time in respect of Senate,” Shakantu argued.
Lastly, the minister said there was clearly nothing in Section 5(3) of the Act that was offensive to Section 84 of the Constitution. She stated that the clear objective of Section 84 was to outlaw the imposition of the people’s representatives in government; the people must elect their own representatives. “This Section 5(3) of the Act does not impose any candidate upon the Senate elections. The electors retain their freedom of choice among those who qualify in terms of the section. There is no freedom to choose the unqualified,” the minister submitted.
Prima facie, Shakantu argued, the case of the Senate Election Act and the Constitution was wrongly decided by the High Courts. “The decision a quo cries out for reconsideration on appeal. It is undesirable that this apex court makes its esteemed contribution to the jurisprudence at play in this case, rather than technically avoid it as lapsed,” added the minister.
Based in these submissions, the minster implores the Supreme Court to reinstate the appeal and enroll it for determination at the earliest convenience, with the national elections being of national interest.
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