Poll challenge thrown out with costs

By Asser Ntinda

‘It is great day for SWAPO Party’ - Ngurare
The election challenge brought before the High Court by nine opposition parties in which they asked the High Court to nullify or order a recount of last year’s National Assembly and Presidential Elections has been dismissed with costs.

In a terse judgment prepared by High Court Judge Collins Parker, with Judge President Peter Damaseb concurring, the High Court struck the election application challenging the National Assembly and the one challenging the Presidential election with costs, including one instructed counsel and four instructed counsel for the first respondent, as well as two instructed counsel for the second respondent. “Such costs are against the applicants jointly and severally, the one paying, the others to be absolved,” said Judge President Damaseb. The application by the applicants for the Court to grant them “condonation” for its late filing has also been dismissed and the election application challenging the National Assembly election struck from the roll.

The purpose of the election court challenge was to have last year’s National Assembly and Presidential Elections declared “null and void and set aside.” Alternatively, it was also aimed at nullifying the announcement of the result of such elections and to have the ballots cast and election recounted.

During the hearing on Monday and Tuesday, both SWAPO Party and the Electoral Commission of Namibia, ECN, raised a number of technical legal points on which the case should be thrown out of court. SWAPO Party’s lead counsel, Ishmael Semenya,SC, also questioned why the applicants had not cited as respondents in the case the 54 people who were on the list of SWAPO Party as its candidates for the National Assembly, even though they were declared winners and had therefore a direct interest in the case.

Semenya ripped through the applicants’ arguments like a razor, arguing that it was not just enough for the parties challenging the elections to tell the court that “irregularities” occurred here and there. They were supposed to show the court that such “irregularities” had such an impact on the election which had resulted in some people having been unduly elected as candidates to the National Assembly. This, said Semenya, was missing, but was crucial for the court to apply its mind properly.

Semenya did not also spare the manner in which the Presidential Election challenge was brought before Court, saying that it was not properly before court because the requirements of the Electoral Act were not complied with. The Act states that an applicant should pay security for legal costs. This was not complied with. The National Assembly Election challenge was also filed late, and the High Court Registrar should not have accepted this.

The Act also states that the security shall be for an amount determined by the registrar of the court and shall be furnished in money or by recognizance to the satisfaction of the registrar. If that provision was complied with, the case shall be deemed to be at issue. If there is no such compliance, no further proceedings shall be had on the application.

Both SWAPO Party and the ECN had also challenged the applicants challenging the Presidential election in the “amplified notice of motion,” and presented evidence that the challenge to the Presidential election was brought beyond the 30-day period. They also argued that the failure by the applicants to provide security for the Presidential Election challenge made it a “nullity” in terms of the Act.

“No further proceedings shall be had on an election application in respect of which security has not been paid,” agreed the judges. “The applicants’ reply that the security issue had become moot because none of the respondents had since opposed it is, therefore, bad in law.

“The challenge against the Presidential poll launched by the applicants on 14 January 2010 therefore stands to be struck from the roll with costs. Having so decided, it becomes unnecessary for me to consider the issue whether this Court has inherent jurisdiction to extend the 30-day time period for the filing of the challenge to the Presidential Election on the basis stated by the applicants.”

On the election application challenging the outcome of the National Assembly which was launched after the 16h00 deadline, both SWAPO Party and the ECN pointed out that the application was a “nullity” because it was presented to Court irregularly.

On this point, Judge Parker agreed, saying that it was a “nullity” because it ought to have been filed at 15h00, “unless there were ‘exceptional circumstances’ for its acceptance by the Registrar after the period stipulated in the Rules of Court.” No effort was made to satisfy the Court that “exceptional circumstance” existed.

“Mr (Reinhard) Totemeyer, (representing the applicants) made this look like some trivial matter that can be overlooked ‘in the interest of justice’,” remarked Judge President Damaseb. “With the greatest respect, he is wrong. Rules exist to promote predictability and certainty.

“The public expect their enforcement and ‘justice’ demands that the law is complied with. It is not that the applicants had no other recourse: the Court or a judge could have been approached to come to their assistance.”

During the arguments, Totemeyer SC, admitted that there was no formal application before Court seeking “condonation” for the admitted late lodgment of the election application. He argued that the applicants’ position was that no “condonation” was required as they complied with rule 3. Only if the Court were to find that they did not so comply that he, in the alternative and from the Bar, would seek such “condonation.” Totemeyer, quoted several cases, some from South Africa, in which he tried to say that it was the “version of the applicants” which should prevail.

“Mr Totemeyer is plainly wrong,” said Judge President Damaseb. “None of these cases are authority for this proposition. The two South African cases … do not at all deal the issue of how to resolve factual disputes when it comes to determining applications to strike, and points in limine.”

Judge President Damaseb added that the applicants made out no good case why they were not able to file the papers on time. He said that it was apparent that their failure to come to court on time was that they wished to see “too much information” and were overwhelmed by the information they obtained in the process.

“To grant condonation in those circumstances would not advance the general public interest as it has the potential for encouraging ‘fishing expeditions’ before challenging election results. This is the basis on which I exercise my discretion against granting condonation as sought ‘in the alternative’ and from the Bar,” remarked the Judge President.

“We told them that they had no case,” said SWAPO Party Secretary for Youth League, Cde Elijah Ngurare, upon hearing that the case had been dismissed with costs. “This is a great day for SWAPO Party. What will they do next? We have been vindicated.”