CIV/APN/240/93
IN THE HIGH COURT OF LESOTHO
In the matter between:
BASOTHO NATIONAL PARTY APPLICANT
AND
PRINCIPAL SECRETARY OF MINISTRY OF
LAW, PARLIAMENTARY AND
CONSTITUTIONAL AFFAIRS 1ST RESPONDENT
CHIEF ELECTORAL OFFICER 2ND RESPONDENT
ATTORNEY-GENERAL 3RD RESPONDENT
ENOCH LELEMA 4TH RESPONDENT
SENEKALE TJOTSANE 5TH RESPONDENT
MPHO MALIE 6TH RESPONDENT
KHACHANE LEVY SEKOTO 7TH RESPONDENT
SHAKHANE MOKHEHLE 8TH RESPONDENT
NTJA NCHOCHOBA 9TH RESPONDENT
NTSUKUNYANE MPHANYA 10TH RESPONDENT
PASHU MOCHESANE 11TH RESPONDENT
TEBOHO KHOATHANE 12TH RESPONDENT
MAKATLA MAKATLA 13TH RESPONDENT
THABISO MELATO 14TH RESPONDENT
EDWIN SELIKANE 15TH RESPONDENT
MATTHEWS MOHASOANE 16TH RESPONDENT
MABALA MAQELEPO 17TH RESPONDENT
JOSEPH MOHLAKOLA 18TH RESPONDENT
TSELISO MAKHEKHE 19TH RESPONDENT
SEKOALA TOLOANE 20TH RESPONDENT
PEO MOEJANE 21ST RESPONDENT
TJEOANE SEKAMANE 22ND RESPONDENT
MAMOSHEBI KABI 23RD RESPONDENT
DAVID MOCHOCHOKO 24TH RESPONDENT
TSOTANG MOKOTSO 25TH RESPONDENT
SEABATA LEKHABANE 26TH RESPONDENT
B.E. TAU 27TH RESPONDENT
VINCENT MASENYETSE 28TH RESPONDENT
MOLAPO QROBELA 29TH RESPONDENT
MALAISA MAHOSI 30TH RESPONDENT
DR. DEBORAH RADITAPOLE 31ST RESPONDENT
Before Cullinan C.J., Molai J. & Kheola J. on 2nd June, 1993. For the Applicant: Mr. B. Sooknanan
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For the 1st, 2nd and 3rd Respondents:
Deputy Attorney General
Mr. K.R.K. Tampi & Mr.
L. Letsie, Crown Counsel
For the 4th to 31st Respondents : Mr. L. Pheko
JUDGMENT
Cases referred to:
De Villiers v Louw (1930) A.D. 426;
Olufsen v Klisser (1959) 3 S.A. 351;
Attorney-General v Matlakeng & Anor. CIV/APN/63/89 Unreported;
Mota En Andere v Moloantoa En Andere ( 1984) 4 S A. 757 .
CULLINAN C.J.
Subsequent to the holding of National Assembly Elections on 27th March, 1993, 28 petitioners, the 4th to the 31st respondents inclusive in this application, all members of the applicant Basotho National Party, lodged election petitions, in 28 of the 65 constituencies in the Kingdom. The Court of Disputed Returns (that is, as will be seen, the High Court), sat to hear the first petition yesterday morning. The petition did not proceed, as this present application was placed before the High Court. The applicant seeks an order partly in the following terms:
"1. (a) That a Rule Nisi be issued calling upon the Respondents to show cause, if any, on a date and time to be determined by the above Honourable
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Court why:-
(i) The Election Petitions viz from CIV/APN/182/93, to CIV/APN/209/93, inclusive, should not be stayed pending the finalisation of this application.
(ii) The ballot envelopes in relation to the cases mentioned at 1 (a) (i) shall not be forthwith released by any of the Respondents (that is, the first three respondents) into the custody of the Registrar of the High Court for safekeeping pending the finalisation of this application.
(iii) The ballot envelopes after superficial inspection by Applicant, Registrar and Second Respondent shall not be released to the custody and care of the Second Respondent pending the hearing of the election petitions referred to in 1 (a) (i) above.
That Order 1 (a) (i) and 1 (a) (ii) apply with immediate effect.
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That this Honourable Court should ... dispense with the rules of Court because of urgency. ..."
The application was brought ex parte on an urgent basis. The respondents to the 28 election petitions had not been joined as respondents in this application. The Court considered that they were interested parties and ordered that they be so joined. The issues involved were clearly of national importance and the Court declined,particularly in view of the prayer for interim relief, to hear the matter ex parte. The Deputy Attorney-General Mr. Tampi for the first three respondents, and Mr. Pheko representing all the other respondents,
were prepared, at short notice, to argue the matter without filing answering affidavits.
The basis of the application is contained in the following extracts from the founding affidavit sworn by the President of the applicant Party.:
"4. It has come to the knowledge of Applicant the ballot envelopes for all the Twenty-nine Constituencies under dispute have
been removed from the care and custody of the Chief Electoral Officer to the care and custody of the Principal Secretary of the Ministry of Justice and Prisons after the twenty-nine cases had been filed in. Court."
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"8. I verily aver that the ballot envelopes concerning the elections of March 1993 had already been tampered with in that there has been a general "re-packing" of ballot papers in all the Districts of Lesotho. Evidence can be led in this regard at the hearing hereof with the permission of this Honourable Court. Affidavits in this regard are not available at this moment due to the urgency of this application. However, it is submitted that the proper forum for this exercise would be the Court of Disputed Returns.
9. I aver that in the light of the above illegal exercise by the Government, Applicant is concerned that the purpose for the removal
of the ballot envelopes from the office of the Chief Electoral Officer to the office of the Principal Secretary of Law Parliament
and Constitutional Affairs at the Government Complex is sinister and is likely to prejudice the scrutiny that is called for in various election petitions by the candidates of Applicant."
Mr. Sooknanan for the applicant has submitted that the deponent intended to refer to the sealed packets forwarded to the Chief Electoral
Officer, rather than any "ballot envelopes". Further, he has informed the Court that paragraph 4 above contains a typographical error in that reference was intended to be made, as is indicated by paragraph 9, to the Principal
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Secretary of Law, Parliamentary & Constitutional Affairs, that is, the first respondent.
Section 69 of the Constitution reads in part thus:
"69. (1) The High Court shall have jurisdiction to hear and determine any question whether - .......
any person is validly nominated or designated as a Senator under section 55 of this Constitution:
any person has been validly elected as a member of the National Assembly; or
the seat in Senate or the National Assembly of any member thereof has become vacant.....
Parliament may make provision with respect to -
the circumstances and manner in which and the conditions upon which any application may be made
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to the High Court for the determination of any question under this section; and
the powers, practice and procedure of the High Court in relation to any such application, ........ (Italics supplied)
With regard to sub-section (5) above, specific provision was made under the National Assembly Election Order, 1992 (No.10 of 1992) ("the Order") relating to the provisions of section 69(1)(b) of the Constitution, and also section 69(1)(c) (as to a seat in the National Assembly - see section 147 of the Order). The words "election" and "election petition" are defined in section 2(1) of the Order thus:
""election" means:
a general election of members of the national Assembly; or
in relation to a particular constituency, an election or by-election to elect a member to represent the electors of the constituency in the National Assembly,
and includes the proceedings relating to the nomination of candidates." (Italics supplied)
""election petition" means a petition presented to the Court of Disputed Returns in accordance with chapter 8."
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Chapter 8 (sections 100/112) of the Order is entituled "Election Petitions". Thereafter sections 100, and 101 and section 104 (in part) of the Order read thus:
"100. The High Court is the Court of Disputed Returns for the purposes of this Order.
101. (1) An election relating to a particular constituency or the return of a particular candidate at an election may be disputed by a petition to the Court of Disputed Returns in accordance with this Chapter and not otherwise.
Only the following persons have standing to present an election petition to the Court of Disputed Returns:
an elector whose name appears on the electoral list for the constituency concerned;
a candidate, or a person claiming to be entitled to have been a candidate, at the election;
The Attorney General."
"104.(1) The Court of Disputed Returns must conduct the trial of an election petition in open court.
In determining the petition, the Court:
is to be guided by the merits of the case without regard to legal forms or technicalities; and
is not required to apply the
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rules of evidence.
At the trial of an election . petition, the Court has power
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;
At the trial of the petition, the Court may order a scrutiny of the ballot papers used at the election and may make such other ancillary orders for the determination of the petition as it considers appropriate.
105,(1) If the Court of Disputed Returns orders a scrutiny of votes, all ballot papers used at the election are to be scrutinised.
If, at a scrutiny of votes, it is proved that a tendered ballot paper was a valid vote, any party to the petition may apply to the Court for an order under subsection (5).
On the hearing of an application under subsection (4), the Court may make an order directing that the tendered ballot paper be added to the poll and counted." (Italics supplied)
In view of the definition of the word "election" in section 2(1) and the use of the words, "claiming to be entitled to have been a candidate", in section 101(2) (b), it would seem that nomination proceedings may be disputed by election petition. It is not necessary to decide that aspect. What is clear is that
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under the Order, when it comes to disputing the returns made at an election, this can only be done by way of a petition in respect of the return of a particular candidate, in a particular constituency, "and not otherwise". If the returns of 28 candidates in 28 constituencies are disputed, as is the case with the election held on 27th March, 1993, then 28 election petitions must be, and were in fact filed. There is no other way to impugn the elections in the various constituencies. It cannot, for example, be done by way of a general application to the High Court, as in the present application.
Mr. Sooknanan submits that the present application does not dispute any return as such: that can only be done by election petition to the Court of Disputed Returns, that is, within 30 days after the end of the election period, which time limit, he observes, has long since expired. I observe that 28 returns are being disputed by election petitions, of which the Court of Disputed Returns is presently seized, having set down the first of those petitions for hearing yesterday morning. Whatever may be the form of the present application, the purpose thereof must be examined. Surely the purpose thereof is to support the 28 petitions, namely to dispute the 28 returns? That is the very issue with which the Court of Disputed Returns is seized and over which the High Court, as such, has no jurisdiction.
Mr. Sooknanan submits that the applicant does not seek a scrutiny, but merely a "superficial inspection" of the packets
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originally delivered to the Chief Electoral Officer. But that also is an aspect of which the Court of Disputed Returns is seized. As Mr. Pheko points out, section 104(6) provides that the Court of Disputed Returns "may make such other ancillary orders for the determination of the petition as it considers appropriate". There is, for example, the power to make an order under section 105(5). Indeed the wide ranging powers under section 104 indicate the quasi-inquisitorial aspect of the Court's duty hearing an election petition, which is not in the nature of any other civil matter inter parte, and that the Court may act meru motu in the execution of such duty. As I see it, upon the hearing of an election petition, the Court of Disputed Returns is obliged, like any other court, to consider whether or not any documents are being produced from proper custody. That applies a fortiori to the production by the Chief Electoral Officer of the sealed packets delivered into his custody.
It will be seen that in paragraph 8 of the founding affidavit it is conceded that the allegation of tampering and "re-packing" is a matter for the Court of Disputed Returns "as the proper forum". I agree. I cannot then see how it can be said that the question of whether or not the seals on the packets delivered to the Chief Electoral Officer have been broken, is not also a matter for that Court.
I have been concerned to ascertain whether or not the High Court has any inherent jurisdiction in the matter. It will be
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seen that section 69 of the Constitution confers jurisdiction upon the High Court as such, rather than the Court of Disputed Returns, but I do not see that anything turns on that, as under section 100 of the Order, the High Court is constituted the Court of Disputed Returns, for the purposes of the Order. What is important is that section 69(5)(b) of the Constitution empowers Parliament to make provision with respect to the powers of the High Court in relation to any question whether "any person has been validly elected as a member of the National Assembly." The Constitution took effect on 2nd April, 1993, however, whereas the Order came into operation on 10th June, 1992. Nonetheless, section 156(1) and (2) of the Constitution provides thus:
"156. (1) Subject to the provisions of this Constitution, the existing laws shall continue in force and effect on and after the coming into operation of this Constitution and shall then have effect as if they had been made in pursuance of this Constitution, but they shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution.
Where any matter that falls to be prescribed or otherwise provided for under this Constitution by Parliament or by any other person or authority is prescribed or provided for by or under any of the existing laws (including any amendment to any such law made under this section), that prescription or provision shall, as from the coming into operation of this Constitution, have effect (with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution) as if it had been made under this Constitution by Parliament or, as the case may be, by the
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The effect of those provisions is that the Order has effect as if it had been made under the Constitution by Parliament. As I see it, Parliament was empowered by the Constitution to make provision for the High Court's powers in the matter and this it has done under the Order. In determining "any question whether -.... any person has been validly elected as a member of the National Assembly", the High Court is therefore very much a creature of statute and its powers are delineated in the Order, that is, as the Court of Disputed Returns.
I do not say that the High Court has no inherent common law powers in electoral matters. It will be seen that under section 34 of the Order a case may be stated to the High Court, as such, in the event of dissatisfaction with the Chief Electoral Officer's ruling in the matter of registration of an elector; again, section 144 of the Order provides for an application to the High Court, as such, for an order e.g. requiring a person to cease engaging in conduct that constitutes an offence under the Order. Those provisions, however, do no more than confer a specific statutory jurisdiction upon the High Court in electoral matters and throw no light on the existence or otherwise of any inherent jurisdiction. In the case of De Villiers v Louw (1) decided in 1930, Curlewis J.A observed at p.430
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".... it is well to bear in mind that a Court of law can have jurisdiction in connection with an election petition only in so far as jurisdiction has been conferred upon it by the Electoral Act, and that the power either of the court below or of this Court to deal with an election petition in the first instance or on appeal, and the extent of that power, must be found within the four corners of the Act. 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."
Those dicta of course concern the court's jurisdiction in hearing an election petition as such. They were adopted by Harcourt A.J in the case of Olufsen v Klisser (2) at p.354, to which case reference was made by this Court in the case of Attorney-General v Matlakene__& Anor. (3) at p. 8 (and see pp.17/18). Harcourt A.J. observed at p.354
"Now it is quite clear from the decision of Courts both in this Province and the Appellate Division that the Judges of this Court have jurisdiction solely within the four corners of the Act in regard to matters regarding the elections.
This was pointed out more than once in the judgment of the Appellate Division in the case of De Villiers v. Louw (1), and the reason for that was indicated to be that the Legislature, in transferring the supervision of elections from itself to the Court, must be taken to have granted to the Court no more of its jurisdiction than is expressly conferred by the Act."
Nonetheless, while the High Court was established by statute, it has, as a superior court of record with unlimited
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original and appellate jurisdiction, developed an inherent common law jurisdiction, which can only be derogated from by express provision. In this repect in 1984 a Full Bench of the Orange Free State Provincial Division of the Supreme Court (per M.T. Steyn J.) in the case of Mota en Andere v Moloantoa en Andere (4) held (the judgment is in Afrikaans but see the headnote at p.764) that,
"the case did not fall within the ambit of statutory election law and that regard had to be had to the electoral common law or "common law of Parliament", which electoral common law consisted, at least in part, of the imported English electoral common law."
It may be therefore that there is an inherent jurisdiction in other matters preparatory to the actual election. It may be that e.g. mandamus might lie in certain cases. I see no need to decide that aspect, for when it comes to the present application, it clearly relates to the "question of whether - .... any person has been validly elected as a member of the National Assembly", and the High Court's powers in the matter, have been expressly provided for by Parliament, namely that any such question, or any matter ancillary to such question, can only be determined by the High Court sitting as the Court of Disputed Returns, upon an election petition.
There are narrower issues of jurisdiction. Firstly, the first prayer seeks a stay of proceedings in the Court of Disputed
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Returns. That is a issue for that Court: I cannot see that the High Court would have jurisdiction in the matter.
Secondly, section 95 and section 97 (in part) of the Order read thus:
"95. The Chief Electoral Officer must:
retain in a place of safe custody the packets delivered to that Officer in accordance with section 64, 84 and 94 and containing ballot papers, ballot envelopes and counterfoils of used ballot papers until the election can no longer be questioned;
then, unless in the meantime a court of competent jurisdiction otherwise directs, arrange for those packets to be destroyed."
"97.(1) A person must not:
open a sealed packet of ballot papers or ballot envelopes referred to in section 94(1) (a)-(f) or a sealed packet of counterfoils of used ballot papers; or
inspect or allow another person to inspect ballot papers, ballot envelopes or counterfoils removed from such a packet,
except under the authority of an order of a court of competent jurisdiction.
A court of competent jurisdiction may grant an order under subsection (1) if it is satisfied by evidence on oath that the inspection of a particular ballot paper, ballot envelope or counterfoil is required for the
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purpose of:
prosecuting a person for an offence against this Order; or
determining an election petition."
It will be seen that, apart from the prosecution of election offences, the High Court, sitting as the Court of Disputed Returns, has jurisdiction to order the opening of a sealed packet containing specific election material "for the purpose of ..... determining
an election petition." Mr. Sooknanan submits that his client does not seek the opening of any packet, but merely the inspection of the seals thereon. But, as I see it, the Chief Electoral Officer is the lawful custodian of the relevant electoral material, who is statutorily obliged to retain it "in a place of safe custody". Mr. Tampi submits, and I agree, that the High Court has no power to order the Chief Electoral Officer to even produce the sealed packets for external inspection. It may only do so under section 97, sitting as the Court of Disputed Returns, upon the hearing of an election petition, for the purpose of determining such petition. I cannot then see how the second prayer can be granted. There is simply no jurisdiction in the High Court to confer custody of the relevant electoral material upon the Registrar.
Neither can the third prayer be granted. I make no finding on the founding affidavit. The evidence involved is a matter for
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the Court of Disputed Returns. I simply make the observation that the latter Court may only order the production of the electoral material in the course of an election petition. Meanwhile I cannot see that there is any power in the High Court to order the inspection of the material by the applicant or the Registrar. Neither is there power to order the Chief Electoral Officer to conduct an inspection: he is the statutory custodian of the material, until produced under the provisions of section 97.
There is, incidentally, a further aspect which vitiates the application. The underlying purpose of the application is, as I have said, clearly to dispute the 28 returns involved. That, as I see it, is a matter for the 28 petitioners and not the political Party of which they are members. There is no averment that the application is representative in nature. The deponent of the founding affidavit, who has himself filed an election petition, would have locus standi in the matter of the electoral material relevant to such petition, but there is no averment as to representation of the other petitioners.
Apart altogether from that aspect, for all the reasons stated, I consider that there is simply no jurisdiction in the High Court to entertain this application. I have refrained from dealing with the merits of the application, as I do not wish in any way to prejudice the determination of the issues involved before the proper forum, namely the Court of Disputed Returns.
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For the present I would dismiss this application with costs.
Delivered at Maseru This 2nd Day of June, 1993.
B.P. CULLINAN
CHIEF JUSTICE
I CONCUR
B.K.MOLAI
JUDGE
J.L. KHEOLA
CULLINAN C.J.: The Order of the Court therefore is that the application is dismissed with costs.