20100907
Namibian

Windhoek — THE case in which nine opposition parties are challenging the conduct of Namibia's National Assembly election late last year has been sent back to the High Court.

In a judgement given in the Supreme Court yesterday, the nine parties won their appeal against the High Court ruling in which their challenge to both the National Assembly and the presidential elections was struck from the court roll on March 4.

That decision to strike the parties' application from the court roll on the grounds that it had been filed ninety minutes late in terms of the High Court rules, was wrong, five judges of the Supreme Court agreed in a unanimous decision.

In a departure from normal procedure, Chief Justice Peter Shivute read the court's judgement in full, rather than just its conclusion, when the decision was announced yesterday.

The judgement is a joint decision of the court, consisting of Chief Justice Shivute, Judge of Appeal Gerhard Maritz, and Acting Judges of Appeal Fred Chomba, Simpson Mtambanengwe and Pius Langa.

The court allowed the parties' appeal, and ordered the Electoral Commission of Namibia and Swapo, who opposed the parties' application to have the National Assembly and presidential elections set aside or get a recount of votes cast in those elections, to pay the parties' legal costs in the appeal.

The court sent the case back to the High Court, which must now make a decision on the merits of the challenge to the National Assembly election.

The parties did not appeal against the High Court's ruling with respect to the presidential election.

Judge President Petrus Damaseb and Judge Collins Parker, who heard the matter at the beginning of March, will now have to give a judgement on the merits of the election challenge, which were left undecided in the ruling given on March 4.

The merits were also argued before the two judges six months ago.

The possibility that Judge President Damaseb might not continue to sit on the case was, however, raised in a statement issued by the Registrar of the High Court yesterday. According to the statement the Judge President yesterday directed a letter to the lawyers of the nine parties, to ask them to indicate whether they want him to recuse himself from the case.

This is as a result of a disagreement that arose between the Judge President and the parties after the March 4 ruling, when it was reported in two newspapers that the parties had issued a joint statement, in which they accused the Judge President of having contradicted himself over the filing of the election challenge with the office of the Registrar.

The parties later issued a public apology and retraction of their statement.

In the letter to the parties' lawyer, Judge President Damaseb asked them to urgently get instructions from the parties on the question whether they have any objections to him participating in the case on the merits.

"Although I personally see no impediment in my so participating, I wish to give the applicants the choice in the matter," the Judge President stated.

REASONS FOR RULING

The Supreme Court started its judgement by emphasising the fundamental importance of the right to vote and regular, free and fair elections, in a democracy.

"These democratic rights, long denied, were hard won, and it is only appropriate that they be jealously protected; that enfranchised Namibians should be allowed to freely cast their votes in elections, and that the individual or collective weight of their votes in the ultimate result, should not be manipulated or eroded in any manner by illegal conduct - more so, if, as a consequence, it will affect the results of those elections," the court stated.

Most of the court's judgement, which took Chief Justice Shivute about an hour and 45 minutes to read, was devoted to an analysis of the High Court's rule that sets the working hours of the office of the Registrar, and the section of the Electoral Act that states that an election application must be filed within 30 days after the announcement of an election result.

In this instance the 30 days came to an end on January 4. According to the High Court rules, an application must be filed with the office of the Registrar up to 15h00 on a normal working day. The rule also allows the Registrar to, in exceptional circumstances, or if the court directs the Registrar to do so, accept the filing of a case beyond those hours.

In the High Court's two judgements, a strict interpretation was given to that time limit. The two judges agreed that the fact that the election application was filed at about 16h30 meant that the case was not properly before court and had to be struck from the roll.

That decision was not correct, the Supreme Court ruled. The five judges agreed that the rule setting the office hours for the filing of a case is directory rather than peremptory. They found that this means that the Registrar is expressly authorised to receive the filing of court documents after the set normal office hours.

The fact that the filing of the election application was accepted at the office of the Registrar is an indication that it was accepted that there were exceptional circumstances to warrant the filing of the case after 15h00, the court reasoned.

These exceptional circumstances could be deduced from the very nature of the case itself, the court stated: "Election applications are important by their nature. They concern the election of representatives of the people to the highest public offices in the democratic institutions of our State. They are one of the most important mechanisms through which to protect our constitutional democracy and the fundamental right of citizens to equally participate in political activity; to preserve the integrity of free and fair elections as a means to ascertain the collective socio-political will and wishes of all enfranchised Namibians; to preclude representation in these high offices by persons who have not been duly elected and to allow for an independent adjudication of election complaints in a peaceful, transparent and accountable manner."

If the ECN or Swapo wanted to have the decision to accept the filing of the case after 15h00 reviewed and declared invalid, they should have brought a review application to that effect, the court said.

The nine parties were represented by Reinhard Tötemeyer, SC, Albert Strydom and Andries van Vuuren, on instructions from attorneys Tobie Louw and Jaco Jacobs. Vincent Maleka, SC, Sisa Namandje and Gerson Narib represented the ECN on instructions from the Government Attorney. Ishmael Semenya, SC, Sackey Akweenda and Elia Shikongo represented Swapo.