Wednesday, February 19, 2020

Determination of 2019 election petitions is problematic

It is generally accepted that judges know the law, and that counsel appears in court to assist the court to come to the right decision. It is also an accepted principle that “In exercising the judicial function, judges are themselves constrained by the law” National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA). It however seems to me that counsel for both sides were not particularly helpful to the court. Generally points in limine deal with jurisdiction, locus standi, limitation of action, and non-compliance with statutory provisions that do not give the judge discretion. One of the issues raised as a preliminary point was that the respondents had not been served with a written notice of presentation of the petition.

This notice is supposed to be accompanied by a copy of the petition. To my knowledge there is no requirement to file the written notice of presentation of the petition. This suggests that the written notice is extraneous to the petition and is not material. I must acknowledge that the notice in writing serves another purpose, that of presenting proposed sureties to the respondent. The respondent has the right to object to the sureties on listed grounds. These are that the surety is insufficient, dead or cannot be found, or that the person named has not signed, or that the surety is invalid or defective. My contention is that if the legislature had intended to allow the respondent to complain about the surety on any other ground other than those listed, it would have so stated in the provision. To allow the raising of a point in limine based only on lack of service of a document titled “Notice of Presentation of Petition”, without any objection to the sureties on any of the listed grounds is in my view not sustainable. In fact the court should have asked “So what?” One of the principles that underpin the rule of law is that of rationality. To allow a respondent to hold that a petition should be dismissed because it was not served with a written notice of presentation of the petition, and at the same time allow the respondent to refer to passages in the very petition that it wants dismissed on the basis of a document that is extraneous to the petition is with respect irrational. 

The requirement for a strict compliance with the provisions of the Electoral Act comes from the decision of the Court of Appeal in KONO V LEKGARI, a decision handed down nearly twenty years ago, a decision I believe is not sustainable. The court at the time focusing on consequences of an election petition, decided that there was a need for strict compliance. With all due respect the court’s focus on the possible consequences of an election petition was misplaced. The result of litigation is a matter of substantive law, and in this case the Electoral Act. The Electoral Act details the possible determinations that the court can arrive at. With all due respect to the court, the consequences of those determinations are irrelevant to the court, for the court has no business getting into them. Quite obviously the legislature was aware of them when it made the Electoral Act. 

The court in KONO v LEKGARI also justified the requirement for a verifying affidavit on the basis that the same is required in petitions for voluntary surrender of an insolvent estate and in the winding up of companies. I struggle to find how this applies to the Electoral Act. The Court of Appeal in the case of Medical Rescue International v Attorney General, a decision after Kono v Lekgari, quoted with approval Innes J.A. in Benning v Union Government and Ano. that “Conditions which clog ordinary rights of an aggrieved person to seek assistance of a court of law should be construed strictly and not extended beyond cases to which they expressly apply” How does one then justify applying conditions which are not expressly stated to apply to petitions for voluntary surrender of an insolvent estate or winding up of companies to election petitions?    

The Court of Appeal made reference to the following passage in the Privy Council decision in Nair v Taik “In contrast, for example, to the Rules of the Supreme Court in this country, the Rules vest no general power in the election Judge to extend the time on the ground of irregularity, their Lordships think that this omission was a matter of deliberate design. In cases where the Judge should have power to amend proceedings or postpone the enquiry it was expressly conferred on him.”  Reliance on this passage is problematic because the Court of Appeal had earlier ruled that the Rules of the High Court apply, and those rules do give the judge discretion to indulge a litigant who has not complied with the rules of court. To therefore hold that a judge of the High Court, has no discretion and cannot indulge a litigant on a procedural matter is inherently contradictory. Ordinarily an affidavit is sworn to after the factual allegations are disclosed whilst where evidence is to be presented verbally, as contemplated by the Electoral Act, the witness takes the oath before giving evidence. Order 12 Rule 3(1) of the High Court rules states that every petition shall be verified upon oath. The verification under oath could quite easily be done at the trial. Order 13 Rule 1 of the Rules of the High Court requires giving evidence by affidavit which is not what the Electoral Act says and the rule of court must yield to the statute. The word “verified” does not imply that such verification must always be in writing.

The court can itself record the verification under oath as it regularly does. Order 12 Rule 1, Order 24, and Order 25 of the Rules of the High Court require the filing of affidavits with the notice of motion, declaration and the plea. Surely if any verifying affidavit was required with a petition the rules would say so. The Electoral Act provides that a verbatim report of the evidence shall be taken. Witnesses only commit an offence by giving false information at the trial. Witnesses at the trial are also given immunity. To require the filing of a verifying affidavit creates a witness of fact before the trial. In view of the fact that the court can only examine a witness at the trial what is the point of having a witness before the trial? What immunity does the Court of Appeal give to a person who files a verifying affidavit? I bet it does not give any because it has no power to do so. In order for immunity to accrue the evidence must be given at the trial.  I have read in one case where the question was raised whether the rule in Plascon-Evans-Paints v Van Riebeeck Paints would apply, and I think our courts should have asked themselves this question in determining whether a verifying affidavit is necessary or not. 

In election petitions there is no requirement that the respondent has to file an opposing  affidavit. The Electoral Act gives the respondent the right to present evidence at the trial against the person who claims the seat. Surely such evidence is not presented on affidavit. The Court of Appeal in the Kono case also quoted this passage; “We may therefore conclude that the Legislature did not desire an election to be set aside lightly; it regarded it as a matter in which the court should act with particular caution and circumspection; no matter how grave the mistake or non-compliance may be the court may not declare an election void except in the event mentioned in the section.” It seems in the thinking of the Court of Appeal an election can only be declared void on the grounds set out in the law, but the petition itself can be voided on grounds that are not set out in the Electoral Act. With all due respect in my view the decision in Kono v Lekgari is bad law, and should not be followed. I found the referral to the contents of the petitions a bit odd. Given that an election petition is not determined on the papers filed, as is done with applications, but rather on evidence presented at a trial, we had a situation where pieces of paper, filed at the registry, now presented in the form of bundle of pleadings, were treated as evidence instead of pleadings, and relied upon by the judges and counsel to determine substantive issues even though on the surface there supposedly was no trial of the petitions.

The judges and lawyers were witnesses but they had not been sworn. I heard that in one case the judges held that the petitioner had not stated what the respondent had actually done that is corrupt or what corrupt act was done with the consent or knowledge of the respondent and thereby upheld some point in limine. Upholding as a point in limine what is effectively an exception is not proper, for our law does not allow the raising of an exception as a point in limine. Generally when our courts uphold an exception they normally give the losing party an opportunity to rectify.  I submit that the courts did go into the merits of the petitions through a process that our law does not recognize. Then again because the petitioners were willing participants, represented by senior counsel, we may as well let sleeping dogs lie as regards the procedure at the High Court.

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