Kono and Others v Lekgare and Others (Civil Appeal No. 9 of 201) [2001] BWCA 26 (20 July 2001)

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Kono and Others v Lekgare and Others (Civil Appeal No. 9 of 201) [2001] BWCA 26 (20 July 2001)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Civil Appeal No. 9 of 2001
[High Court Consolidated Miscellaneous
Application Nos. Misca 462/99
Misca 464/99 Misca 465/99 In the matter between:

1^st Appellant 2^nd Appellant 3^rd Appellant

KELEHETSWE TANANA KONO MICHAEL RABERENG TSHIPINARE LESOLE SEKALABA
And

1^$t Respondent 2^nd Respondent 3^rd Respondent

MOTLASUPING LEKGARI MEPHATO REATILE EVA MOTHOMME
In respect of the consolidated matters of:
I^st Petitioner (Misca 462/99)
2^nd Petitioner (Misca 464/99)
3^rd Petitioner (Misca 465/99)
MOTLASUPING LEKGARI
MEPHATO REATILE
EVA MOTHOMME
and
1" Respondent (all cases)
INDEPENDENT ELECTORAL COMMISSION
and
2^nd Respondent (Misca 462/99)
3^rd Respondent (Misca 464/99)
KELEHETSWE TANANA KONO
MICHAEL RABERENG TSHIPINARE
LESQLE SEKALABA
4^th Respondent (Misca 465/99)
Advocate B.S. Spilg (with him Mr. L. Khupe) for the Appellants
D.G. Boko (with him J. Nnoi) for the Respondents

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JUDGMENT
CORAM: P.H. TEBBUTT AG. P N. W. ZIETSMAN J.A. SIR JOHN BLOFELD J.A.
TEBBUTT AG. P
On 16 October 1999 Parliamentary and Local government elections were held in
40 constituencies spread across the length and breadth of the Republic of
Botswana. They were conducted by the Independent Electoral Commission (IEC),
a statutory body established for that purpose under Section 65A of the
Constitution of Botswana.

In the Khakhea ward of the Ngwaketse West constituency Motlasuping Lekgari (Lekgari) was a candidate in the local government election which was won by Kelehetswe Tanana Kono (Kono) by 400 votes to Lekgari's 303 votes. In the Ngwaketse West constituency Mephato Reatile (Reatile) was a candidate in the parliamentary election which was won by Michael Rabereng Tshipinare (Tshipinare) who polled 4615 votes to 4602 votes for Reatile.

In the Metlobo ward in the Ngwaketse constituency Eva Mothomme (Mothomme) was a candidate in the local government election which was won by Lesole Sekalaba (Sekalaba) who polled 517 votes to 416 votes for Mothomme.

Alleging that all the three elections were irregular and thus null and void and of no force and effect, Lekgari, Reatile and Mothomme on 12 November 1999 filed in the High Court election petitions, in High Court Applications Misca 462/99, 464/99 and 465/99 respectively, claiming orders that the declarations by the I.E.C that Kono, Tshipinare and Sekalaba had respectively been duly elected were null and void and directing that the seats in the two wards and the parliamentary constituency were vacant.

It is unnecessary for the purposes of this judgment to set out what the irregularities are that the petitioners have alleged because of the course the proceedings took in the High Court.

In each instance two points in limine were raised by the respondents in the matters viz. the IEC and Kono, Tshipinare and Sekalaba viz.

That the petition was fatally defective as it had not been verified on oath by the petitioner or by anyone on his behalf as required by Order 12 Rule 4(1) of the High Court Rules

That the petitioner had failed to comply with Section 116 of the Electoral Act (Cap 02:07)

It is common cause that in each instance the petitions had not been verified on
oath.

As the same points were taken in all three cases it was agreed that they be consolidated for the purpose of considering the points and that a ruling on the petition of Lekgari in respect of Kono's election would be deemed to be a ruling in the other two petitions as well.

The matter came before Lisimba J. in the High Court who, in a written judgment delivered on 23 November 2000, held as follows:

(a)

that the petitions were defective by failure of the petitioners to append a verifying affidavit and that the first point in limine was therefore upheld. The petitioners were, however, granted leave to file verifying affidavits by 30 November 2000, failing which there would be no further proceedings on the petitions;
(b)

that the second point in limine was not sustained;
(c) that the petitioners were to pay the costs of the proceedings before him.

It is against these findings that the appellants, i.e. the respondents in the High Court, with the leave of that court, now come on appeal to this court. The appellants have, however, chosen not to pursue any appeal against the finding of the court QUQ in respect of the second point in limine. The appeal before this court is therefore confined to the order condoning in terms of Order 5 Rule I of the High Court Rules, the petitioners' non-compliance with the provisions of Order 12 Rule 4(1) and granting them leave to file verifying affidavits.

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In their grounds of appeal it is contended on the appellants' behalf that -
(i) an election petition and its presentation are governed exclusively by the
Electoral Act; (ii) the provisions of the Rules of Court, and in particular Order 5 Rule 1, were
not adopted by the Electoral Act and are of no application to election
petitions; (iii) there are no provisions in the Electoral Act allowing for such condonation
and the Court has no jurisdiction to grant condonation if there has been a
failure to comply with the requirements of the Electoral Act.

In elaboration of these points, the appellants contended that the provisions of Sections 115 and 116 of the Electorate Act, which form part of Part X of that Act and which part deals with election petitions, are peremptory.

The learned judge a quo had held that:

"the petitioner should have appended a verifying affidavit to the petition upon presentation of the same .... The requirement to verify

on oath by an affidavit must be complied with As a result of the

petitioner's failure to append the affidavit to the petition I find that the process is defective and I sustain the Respondent's objection on this point."

The effect of the ruling by the court a quo_;so the contention went, was that no petition, as contemplated by Sections 115 and 116 of the Act, had been presented and as the provisions of those sections were peremptory, the petition was a nullity

6
and no condonation, as Order 5 Rule I of the High Court Rules provides for, could be granted.
The provisions of Sections 115 and 116 that are relevant to the present inquiry
read as follows:
"115. The following provisions shall apply with respect to the presentation of an election petition -

(a)

the petition shall be signed by the petitioner, or ail the petitioners, if more than one;

(b)

the petition shall be presented within 30 days after the day on which the result of the election has been declared by the returning officer

(c)

presentation of a petition shall be made by lodging it with the Registrar of the High Court; "

Subsections 115(d) and (e) deal with the security for the payment of all costs, charges and expenses that must be provided by the petitioner or his or her sureties.

Section 116 reads as follows:

"116 Notice in writing of the presentation of a petition and of the names and addresses of the proposed sureties, accompanied by a copy of the petition, shall, within 10 days after the presentation of the petition be served by the petitioner on the respondent, either personally or by leaving the same at his usual or last known dwelling or place of business."

Election petitions must be tried in open court when oral evidence is received by the court. Section 119 of the Electoral Act lays down the provisions which, so the

section stipulates, "shall apply" with respect to the trial of election petitions, (my emphasis)

It is to be noted that in terms of Section 129 of the Electoral Act -

"An election petition shall not be withdrawn without the leave of the High Court and after such notice has been given as the Court may direct."

Section 121 of the Electoral Act states:

"An election petition shall be in such form and shall state such matters as may be prescribed by rules of court made in that behalf."

No rules have in fact been made in terms of Section 121.

The Electoral Act makes elaborate provisions for the conduct of elections and it, and the Local Councils Election Act (Cap 40:03) which makes Parts IX and X of the Electoral Act applicable mutatis mutandis to local council elections, are designed to ensure that elections are conducted fairly, lawfully and regularly. The election process is therefore of the utmost importance to the smooth and efficient functioning of the government of the state - both national and local. The Act also, as is to be expected in a democratic system, allows persons who consider that an election has not been conducted fairly and lawfully to bring their complaints before the courts. Such persons must, however, bring their complaints to the courts by way of what is described in the Act as an "election petition".

8
The bringing of a matter before a court by way of petition was required in certain
instances by the rules of court and also by certain statutes e.g. in applications for
voluntary surrender of an insolvent estate or for its compulsory sequestration in
terms of Section 3(1 )(a) or 9(1) respectively of the Insolvency Act (Cap 42:02)
or for the winding up of a company in terms of Section 173(1) of the Companies
Act (Cap 42:01). The use of petitions, as a means of getting matters before a
court, has, however, now become largely restricted, the High Court Rules of Court
in Order 12 Rule 1 providing that -

"Except where proceedings by way of petition are prescribed by law, every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief

Order 12 Rule 4(1) deals with petitions and provides that -
"Every petition shall conclude with the form or order prayed and be verified upon oath by or on behalf of the petitioner."

It has been held that a verifying affidavit in a petition applying for the voluntary surrender of an insolvent estates is a mandatory requirement (See Estate Luck 1929 EDL 87). The same would apply to a petition for the winding up of a company (See Geldenhuvs Deep Limited v. Superior Trading Company (Pty) Ltd. 1934 WLD 117)

Such a requirement would a fortiori be necessary in the case of an election petition. The power of courts to oversee elections was unknown in Roman Dutch law. As

9
stated by Wessels J.A. in a South African Appellate Division case dealing with
election petitions viz De Villiers v. Louw 1931 AD 241 at 267:

"As the whole procedure of parliamentary elections is foreign to our common law and is derived from English statute law, we ought to adopt the principles resorted to by English Courts except where our own statutes differ from the English electoral statutes."

The history of election petitions shows that from early times in England, election petitions were presented not to the courts but to Parliament or "to the assembly for which the contested election has been held." Parliament dealt exclusively with them until about 1770 when it appointed a committee to deal with them and it was only in 1868 that all jurisdiction in regard to election petitions was transferred to the courts. The English Legislature, in so doing, did nothing to alter the original character of petitions to Parliament nor did it expressly declare that they should be in the nature of ordinary recognised proceedings of the courts (See per Broome J. in Petterson v. Burnside 1940 N.P.D. 403 at 410).

The power of courts to consider the regularity of elections is therefore not derived from any inherent jurisdiction nor does it arise from the common law but it is to be found within the corners of the electoral statutes i.e. in Botswana in the Electoral Act. In applying that Act the courts must be astute not to disturb an election which on the face of it appears fair and regular. Persons who allege that it was not, have, of course, a democratic right to challenge it but such challenge must not be frivolous, mischievous or ill-founded but be based on substantive grounds. In

10
bringing an election petition, too, a petitioner must ensure that he complies
meticulously with the relevant provisions of the Electoral Act. The reason for this is
not hard to find. An election petition can have dramatic and far-reaching
consequences. It has special significance and must not be embarked upon lightly.
In the case of de Villiers v. Louw supra at p. 268, Wessels JA said:

"If an election is set aside the whole electorate is affected, business is dislocated, expenses are incurred by the electors going to the poll, the business of hotels and public houses is interfered with and generally speaking a number of persons are greatly inconvenienced."

And at p 264, the same court said:

"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."

The seriousness with which the Legislature views election petitions is demonstrated
by the fact that once lodged they may not be withdrawn without the leave of the
court.

It is accordingly essential that the requirements for bringing an election petition before court must be strictly complied with. Those are the sections contained in Part X of the Electoral Act and, in particular, Sections 115 and 116.

It has been held in a plethora of authority both locally and throughout the Commonwealth that the requirement in respect of election petitions as to the time

in which it is laid down that certain events should occur, including the time for the presentation of petition and for service thereof, the provision of security and the like, are peremptory. (See e.g. Williams v. The Mayor of Tenby (1879) 49 L.J. 325 5 C.P.D. 135; Nair v. Teik 1967 (2) All E.R. 34; Sethantsho v. lankie and Another 1984 BLR 304; Pio v. Smith 1986 (3) SA 145 (ZHC); Dipate v. Mmusi Misca 178/1989).

Failure to comply with the requirements have resulted in the petitions being declared null and void. In Williams v. The Mayor of Tenby supra, Grove J. in delivering the judgment of the court said, inter alia;

"The object of these conditions is to forward the trial of a petition and prevent it from being kept hanging over .... The conditions appear to me to be peremptory and as the petitioner has not complied with them .... the petition must be taken off the file."

The same finding was made in Nair v Teik supra, a decision of the Privy Council in an appeal from the Federal Appeal Court of Malaysia. In the latter case it was argued that the court could condone the time delay for service of the petition and extend the time for doing so. At p 40 Lord Upjohn said this:

"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."

In my view, the provisions of Section 115(a) of the Electoral Act are, like the provisions in regard to the time requirements in Sections 115(b) and 116, also mandatory. The wording of Section 115 is that the provisions as to election petitions set out therein "shall" apply and of Section 115(a) that the petition "shall" be signed by the petitioner. Section 45 of the Interpretation Act (Cap 01:04) stipulates that "in an enactment 'shall' shall be construed as imperative." Additionally, the effect that an election petition can have on the government of, and the running of, the country requires that those legislative provisions in regard to it should be construed as being peremptory.

It has been contended that nowhere in Section 115 is the need for the verification of an election petition on oath expressly stated. While this is true, the considerations I have just set out, would in my view, require that provision for such verification be sought dehors the terms of the Section. As stated above no rules under the Electoral Act have in terms of Section 121 of the Act been promulgated. The Rules of the High Court in regard to petitions would therefore also apply to election petitions. Order 12 Rule 4 sets out that every petition "shall .... be verified upon oath by or on behalf of the petitioner." That too is an imperative requirement. The taking of an oath is part of our common law. It embodies the need for any asserter of a fact or facts to bind, in accordance with his beliefs, the conscience of the asserter so as to compel him to speak the truth (see Merula 4, 65, 9, 1-5 cited by van Zyl j in S v Bothma 1971 (1) SA (C) AT 337 (F-G).

Merula calls the oath "the mother of credibility" and points out that in the common law a witness had to be sworn in the presence of the parties so that they could be sure that he would swear upon an oath that would bind his conscience. Such oath is usually reinforced by the religious obligations of the testifier underlying it. In an election petition, with its far-reaching consequences, the need to prevent frivolous, untrue or unfounded allegations is manifest and this would be largely safeguarded by requiring the petitioner to confirm his allegations upon oath.

The necessity for allegations of fact to be verified on oath is well-established. Proceedings on Notice of Motion must be supported by affidavit and although there is no provision for a verifying affidavit in respect of a petition for voluntary surrender or compulsory sequestration in Sections 3 and 9 of the Insolvency Act, or for a winding up of a company in Section 173 of the Companies Act, the courts have nevertheless held that such a verifying affidavit is necessary (Lucius case supra; Geldenhuys Deep case supra).

A failure to append a verifying affidavit on oath to an election petition, as happened in casu, would therefore, in my view, constitute a non-compliance with the mandatory provisions of Section 115(a). This was also the finding of the Court a quo. The consequence thereof is that it resulted in the petition being a nullity.

Can, therefore, this be condoned by recourse to the provisions of Order 5 Rule 1 which empower the Court to condone non-compliance with the Rules?

Counsel for the Respondents in this Court re Lekgari, Reatile and Mothomme, submitted that what had occurred in this case was that there had been a noncompliance with Orderl2 Rule 4 and that it followed that the Court a quo was correct in doing what it did viz to invoke the provisions of Order 5 Rule I to condone such irregularity and order a verifying affidavit to now be filed.

In my view that submission cannot succeed. The petitions as presented by the petitioners lacked an essential element viz a verifying affidavit on oath. Although that essential element was created by a Rule of Court, the failure to have it in the petitions meant that when the petitions were presented, they were a nullity. The objections to those petitions were not based on a mere irregularity under the Rules of Court. They went to the root of the whole proceedings. As stated by Lord Denning in the Privy Council in MacFov v United Africa Co. Ltd (1962) AC 152 at p 14) that an act which is a nullity "is not only bad, but incurably bad." As Livesey Luke CJ held in Dipate's case supra at p 18, those challenging the petitions were entitled to have them set aside ex debito iusticiae and they could not be cured by recourse to a Rule of Court. I agree that the same considerations apply to the present case.

It follows that the appeals of the three appellants in each of the three High Court Consolidated Miscellaneous Applications Nos Misca 462/99, Misca 464/99 and

15
Misca 465/99 succeed with costs. The order made by the High Court in those cases is set aside and there is substituted for it the following order:
1. The election petitions in Misca 462/99, Misca 464/99 and Misca 465/99 are declared null and void and are set aside;
2. The petitioners are to pay costs of these proceedings.
Delivered in open court at Lobatse this 20th day of July 2001
P.H. TEBBUTT (ACTING PRESIDENT)

I agree:
N.W. ZIETSMAN (JUDGE OF APPEAL)

1 agree:
SIR JOHN BLOFELD (JUDGE OF APPEAL)

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