REPORTABLE
CASE NO.: SA 45/2010
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
THE STATE
Appellant
and
SIMON NAMA GOABAB
ABRAHAM JOHN GEORGE
Coram:
SHIVUTE CJ, MARITZ JA, and MAINGA JA
Heard:
27 June 2012
First Respondent
Second Respondent
Delivered:
____________________________________________________________________
APPEAL JUDGMENT (REASONS)
____________________________________________________________________
SHIVUTE CJ (MARITZ JA and MAINGA JA concurring):
[1]
This appeal by the State against the discharge of the respondents was heard
on 27 June 2012. On the same day, we allowed the appeal and indicated that
reasons were to follow. These are the reasons. The respondents, then as accused
persons, were arraigned in the High Court on an indictment containing three principal
charges. In respect of counts 1 and 2 the respondents were jointly charged with
2
corruptly using office or position for gratification to rent motor vehicles with
registration numbers N82959W and DDS 937 FS on 1 March 2007 and on 15 March
2007 respectively in contravention of s 43(1) of the Anti-Corruption Act, 8 of 2003 (the
Act). The charge of fraud was preferred against them as an alternative to the first
count. In respect of the second count, fraud and theft were preferred as first and
second alternative charges respectively. Additionally, the first respondent was
charged with corruptly using office or position for gratification in respect of a motor
vehicle with registration number GRN 343 in contravention of s 43(1) of the Act, with
the charge of use of motor vehicle without owner’s consent in contravention of s 83(2)
of the Road Traffic and Transport Act, 22 of 1999 as the alternative charge. The
indictment shows that s 43(1) of the Act under which the main charges were
preferred, was to be read with ss 321, 43(2)2, 43(3)3 and 494 of the Act. Both
respondents pleaded not guilty to all the charges and tendered written plea
explanations. In summary, the first appellant produced a lengthy document advancing
a convoluted argument denying in effect that he had committed any offence at all and
contending that the conduct complained of did not amount to any offence in terms of
the Act. The second appellant likewise denied that he had any intention to commit
any of the alleged offences and contended in effect that he was merely obeying
orders or instructions given to him by the first appellant, his superior.
1
Definitions for Chapter 4 of the Act
Which reads: 'For the purposes of subsection (1), proof that a public officer in a public body has made
a decision or taken action in relation to any matter in which the public officer, or any relative or
associate of his or hers has an interest, whether directly or indirectly, is, in the absence of evidence to
the contrary which raises reasonable doubt, sufficient evidence that the public officer has corruptly
used his or her office or position in the public body in order to obtain a gratification.'
3
Definitions for 'relative' and 'associate'.
4
Penalties.
2
3
[2]
At the conclusion of the State’s case the respondents applied for their
discharge in terms of s 174 of the Criminal Procedure Act, 51 of 1977. The Court
below granted the application and discharged them on the three main counts. They
were, however, placed on their defence in respect of the alternative charges. The
State made application for leave to appeal against the discharge of the respondents,
which application was granted by the Court a quo on 6 September 2011.
Background
[3]
At the time of the events leading to the prosecution of the respondents, the first
respondent was the Secretary of the National Assembly appointed or designated as
such pursuant to Article 52 of the Namibian Constitution. As Secretary of the National
Assembly, the first respondent was the accounting officer and as such the most
senior administrative officer at that institution. The second respondent was the Chief
Accountant and Acting Financial Advisor to the National Assembly. As Secretary of
the National Assembly, the first respondent was given a motor vehicle allowance
entitling him to purchase a motor vehicle of his choice which he could use both for
private and official purposes. In terms of regulations governing the motor vehicle
scheme of which the first respondent was a member, officials who receive motor
vehicle allowance were precluded from using State motor vehicles except in certain
circumscribed circumstances to which I shall advert later on in this judgment.
4
[4]
On or about 1 March 2007, the first respondent rented a motor vehicle with
registration number N82959W from Budget Rent-a-Car (the rental company). The two
respondents collectively arranged, through the medium of their subordinates, for the
rental of the vehicles using a government 'claim purchase order and claim form' which
would entitle the first respondent to rent the vehicle at the corporate rental rate which
is lower than the rate charged by the rental company to private persons. Both
respondents entered the office of one of the subordinates when the subordinate
concerned questioned the propriety of the instruction to rent a vehicle for the first
respondent. In that office, the second respondent ordered the subordinate to rent the
vehicle for the first respondent for 15 days. The vehicle was rented without following
the established procedures of having the intended expenditure first scrutinised and
approved by a structure in the National Assembly known as the 'Economising
Committee' and having first obtained a requisition for the expenditure. It was
contended on behalf of the respondents at the trial that the agreement between the
respondents was that the first respondent would pay the amount owing to the rental
company out of his pocket. The purchase order having come from the National
Assembly, it did not come as a surprise that the tax invoice in the amount of
N$4379,54 was sent to that institution for payment. This amount was, however, never
paid and the rental company ultimately wrote it off as bad debt, the National
Assembly being recorded in the rental company's books as the bad debtor.
[5]
On 15 March 2007, the first respondent rented a second motor vehicle with
registration number DDS 937 FS (the second vehicle) from the rental company, which
5
vehicle was returned to the rental company on 24 April 2007. The rental company
took the imprint of the first respondent’s credit card and ‘stopped’ an amount of
N$5000 and another N$5000 was credited to the rental company on 4 April 2007
when the vehicle was not returned by the date agreed in the contract. No further
amounts could be obtained from the first respondent’s credit card since the card was
reported lost. The second vehicle’s rental amount totalling N$18 497,20 was
ultimately paid by the National Assembly with government cheque number 14612068.
This payment was authorised by the respondents with the first respondent signing as
the 'accounting officer' while the second respondent signed both as 'claimant' and
'authorising officer'. Although the first respondent allegedly undertook to repay this
amount to the National Assembly, he did so only after he was arrested by agents of
the Anti-Corruption Commission on 12 June 2007 in connection with this matter.
[6]
On 25 May 2007, the first respondent was found driving a government vehicle
with registration number GRN 343. The key to the vehicle was given to the first
respondent on the instructions of the second respondent. A document officially known
as 'trip authority' normally constitutes the written authorisation for the driver of a
government vehicle to drive the vehicle in question. Attempts were made by the
second respondent to have at least two subordinates enter the first respondent's
particulars on the trip authority but this attempt was politely but firmly rebuffed by the
officials concerned. When the first respondent was asked by a police officer to
produce the trip authority, he allegedly replied that he had forgotten the document at
the office. The relevant trip authority in respect of the vehicle he was found in did not
6
bear his particulars at all. In terms of the regulations governing the motor vehicle
scheme in respect of which a motor vehicle allowance is paid to members, the
member must utilise his or her vehicle for all official journeys arising from his or her
duties. When a member cannot use his or her vehicle, e.g. when it is in a garage for
repairs, he or she must make alternative private arrangements to secure a suitable
vehicle and the regulation makes it clear that no State vehicle will be provided in
those circumstances5. A State vehicle may, however, be provided to the member of
the scheme on the approval of the Permanent Secretary or Accounting Officer when
the member concerned is compelled to travel on roads that are not suitable for use of
his or her private vehicle.6 But members' attention is expressly drawn to paragraph
7.1 of the regulations that states that a member who receives the motor vehicle
allowance should acquire and maintain a vehicle suitable for the nature of his or her
job. An example is given there that if a member is required to travel on a regular basis
to areas where a four wheel vehicle would be appropriate, it would be foolhardy for
such member to buy a sedan in terms of the scheme. The overall object of the
scheme was, according to the regulation, to reduce the provision of State vehicles to
the members receiving a car allowance.7
Findings by trial court
[7]
In her reasons for the discharge of the respondents on the main charges, the
trial Judge reasoned that in enacting the Act, the Legislature did not intend that courts
5
Car Scheme, Par 7.5
Id. Par 9.1
7
Par 1
6
7
should usurp the State’s function to discipline its staff unless the transgression in
question fell within the framework of criminal law. If the intention of the Legislature
was to criminalise misconduct, the Legislature would have said so in clear and
unambiguous language. The learned Judge opined that corruption was merely an
extension of the crime of bribery which implied that there must be a ‘corruptee’ and
‘corruptor’. The Court below found that in the absence of evidence pointing to the
existence of a corruptor, no sufficient evidence had been adduced to support the
commission of the offence of corruption. The Judge ultimately held that not enough
evidence leading to the conclusion that the respondents committed the offence
referred to in the main counts, namely corruptly using office or position for
gratification in contravention of s 43(1) of the Act had been led. The Court below
found, however, that the alternative counts fell within the scope and ambit of criminal
law and evidence had been adduced by the State upon which a reasonable court,
acting carefully, may convict. Consequently, the respondents as mentioned before
were placed on their defence on the alternative counts.
[8]
The Court below initially did not give reasons for granting the appellant leave
to appeal. The reasons therefor were furnished a few days before the
commencement of the hearing of the appeal. In those reasons, the learned Judge
magnanimously conceded that she did not apply her mind properly to the issues
raised by the appellant when the application for the discharge of the respondents was
granted. It was also accepted in the reasons that in effect the court erred in
discharging the respondents without considering that the respondents may be
8
convicted on the alternative charges as s 174 of the Criminal Procedure Act appears
to provide. The High Court expressed a view that this Court may come to a different
conclusion on that score and that for those reasons it had granted the then applicant
leave to appeal.
Counsel’s submissions on appeal
[9]
In this Court Mr D F Small argued the appeal on behalf of the appellant while
Mr G H Oosthuizen assisted by Mr G Narib argued the appeal for the first respondent.
Mr Z J Grobler argued the appeal on behalf of the second respondent.
[10]
Counsel for the appellant submitted that the phrase ‘any offence’ used in s 174
of the Criminal Procedure Act8 meant that if there is evidence that the accused
committed, for example, an offence which is a competent verdict on such charge or
an attempt to do so, the court may refuse a discharge. It was further submitted on
behalf of the appellant that the Court a quo misdirected itself by allegedly adding an
element to the offence created by s 43(1) of the Act in finding that the appellant had
to prove the payment of gratification to the public officer who allows himself or herself
to be corrupted and by finding that for there to be a corruptor, there must equally be a
corruptee. Counsel argued that the court a quo misdirected itself when it decided that
the statutory crime of corruption was an extension of the common law crime of
bribery. Counsel contended that the basic definition of ‘corruption’ is essentially the
8
Section 174: Accused may be discharged at close of case for prosecution
If, at the close of the case for the prosecution at any trial, the court is of the opinion that there
is no evidence that the accused committed the offence referred to in the charge or any offence
of which he may be convicted on the charge, it may return a verdict of not guilty.
9
abuse of public power for gain. It was counsel's submission that although the
definition of ‘corruptly’ contained in s 32 of the Act was declared unconstitutional and
struck down by the High Court in Teckla Nandjila Lameck and Another v The
President of the Republic of Namibia and Others, unreported, (the Lameck matter)
the offences in the Act were not affected and the word ‘corruptly’ used in those
sections would bear its ordinary grammatical meaning. Counsel submitted that
sufficient evidence had been adduced to prove all the necessary allegations required
by s 43 (1) of the Act, upon which a reasonable court, acting carefully, may convict
the two respondents on the first two main counts and the first respondent on the third
count.
[11]
Before the reasons granting the appellant leave to appeal were furnished,
counsel for the first respondent argued with reference to the Lameck matter, that
although the Court below did not have the benefit of knowing that the definition of
‘corruptly’ would be declared unconstitutional, the Judge below applied her mind
correctly as that Court's reasoning was premised on the legality principle in relation to
the definition of ‘corruptly’ in the Act. As such, so counsel argued, it could not be said
that the Court a quo’s reasoning was incorrect or that it did not apply its mind
properly. Counsel further contended that the decision to discharge does not bring
appellant’s case to an end, as the respondents had not been discharged on the
alternative counts. With the Court a quo's reasons having come to hand, counsel filed
supplementary notes in which he argued, amongst other things, that now that the
definition of the word 'corruptly' appearing in s 32 of the Act has been struck in the
10
Lameck matter, and given further the importance of the meaning to be ascribed to
that word as used in s 43 and other sections of the Act, this Court should now give
guidance on how the word 'corruptly' should be interpreted. I will deal with this
submission in the moment, but let me next turn to present counsel for the second
respondent's arguments.
[12]
Counsel for the second respondent contended that not a single witness
testified that the second respondent at any stage acted for himself and that on the
available evidence the only inference to be drawn was that he acted on behalf of the
first respondent to rent the vehicles. Thus, counsel submitted, the only conclusion that
can be arrived at in the circumstances is that he acted as an agent as defined in s 32
of the Act.9 Counsel developed the argument that s 32 read with s 3510 of the Act,
however, requires that for the agent to be guilty of an offence in terms of the Act, he
9
Section 32:
Definitions for this Chapter
'In this Chapter, unless the context indicates otherwise"agent" means a person employed by or acting for another in any capacity whatsoever, and
includes(a)
a trustee of an insolvent estate;
(b)
the assignee of an estate assigned for the benefit or with the consent of creditors;
(c)
the liquidator of a company or other corporate body that is being wound up or
dissolved;
(d)
the executor of the estate of a deceased person;
(e)
the legal representative of a minor or a person who is of unsound mind or
otherwise under legal disability;
(f)
a public officer or an officer serving in or under any public body;
(g)
a trustee, an administrator or a subcontractor and any person appointed as an agent in
terms of any law;
. . .'
10
Section 35: 'Corruptly accepting gratification by or giving gratification to agent
(1)
An agent commits an offence who, directly or indirectly, corruptly solicits or accepts or
agrees to accept from any person a gratification(a)
as an inducement to do or to omit doing anything;
(b)
as a reward for having done or having omitted to do anything,
in relation to the affairs or business of the agent's principal.'
11
or she must receive gratification as an inducement or reward from another person.
However, in the submission of counsel, no evidence was led to prove that the second
respondent had received gratification in any form. Therefore, so counsel argued, the
Court a quo’s decision to discharge the second respondent in respect of the first two
main counts was correct. Counsel continued to contend that the second respondent
was not charged with 'corruptly accepting gratification' in contravention of s 35 of the
Act. Instead, the charges against him were based, as previously noted, on s 43(1)
read with ss 32, 43(2), 43(3) and 46. Counsel submitted that, s 35 must be read with
s 32 of the Act or the definition of ‘agent’ in s 32 would be superfluous. Counsel
argued furthermore that s 46(b)11 of the Act must be interpreted strictly and since the
section is allegedly too vague it cannot be applied and must be struck from the Act.
We note, however, that the constitutionality of s 46(b) has not been challenged in
these proceedings. We are therefore of the view that it is neither necessary nor
appropriate to express any opinion on this aspect of counsel's submissions.
Scope and ambit of consideration of appeal
[13]
The powers of a court of appeal to interfere with the exercise of a trial court's
discretion are prescribed. It is only if the appellate court finds that the trial court did
not exercise its discretion judicially or was influenced by wrong principles or a
misdirection of the facts, or that it was a decision that no court could reasonably have
11
Conspiring with any other person to commit an offence under Chapter 4
12
made that the court of appeal may interfere.12 As O'Linn J, pointed out in S v
Krammer and Others 1991 (1) SACR 25 (Nm) at 29E-H:
'...to decide whether or not there is a misdirection the Court of appeal makes its
evaluation by analysing the record, the judgment given by the trial court, particularly
its reasons or lack of reasons, and then uses common sense and reason, also in
drawing inferences from the facts and circumstances, in order to decide whether there
was a misdirection and, if so, the nature and degree thereof. It seems to me that
when the Court of appeal decides the question whether or not the trial court has
considered a factor and, if so, whether it has given such factor the necessary weight,
it is sufficient if the Court of appeal is satisfied on a balance of probabilities that the
trial court has misdirected itself.'
[14]
Counsel for the appellant argued with reference to Williamson J's dictum in S v
Mpetha 1983 (4) SA 262 (C) at 265 that ‘evidence supporting a charge . . . can only
be sustained if that evidence is of such poor quality that it cannot, in the opinion of
the trial court, be accepted by any reasonable trial court’.
[15]
The real issue for determination is whether the discharge in terms of s 174
should have been granted. The trial Court had clearly misdirected itself when it
decided the matter on the basis of the common law crime of corruption. It was,
however, correct in its reasons granting the application for leave to appeal that its
views based on the common law definition of 'corruption' were erroneous.
Consequently, the trial Court was entirely justified in granting the applicant leave to
12
Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NmSC) at 314F-G. This matter
concerned an appeal against the refusal of an application for a postponement. See also Do Rego v JC
Beerwinkel t/a JC Builders, unreported judgment of this court in Case No SA36/2010 delivered on 22
August 2102 at par 14.
13
appeal. Certain of the arguments advanced on behalf of the appellant relating to the
justification for what was perceived to be an overreach of certain of the provisions of
the Act were meritorious. It is clear that the Act has done away with the previous
common law elements of the crime of corruption and has heralded in a new
dispensation in the definition, reach and scope of the offence of corruption. The
offence is now broad in its reach and scope. This appears necessary because
corruption takes different shapes and fits different sizes. It is also notoriously difficult
to prove, because it often does not take place in the full view of the public.
[16]
The wide scope and ambit of the crime also appears to be international in
nature. It demonstrates the international community's resolve that corruption is an
invidious crime that if left unchecked can eat away a country's gains in all spheres of
the human endeavour. In the words of the sixth Preamble to the Africa Union
Convention on Preventing and Combating Corruption which Namibia has ratified,
State Parties were concerned about 'the negative effects of corruption on the political,
economic, social and cultural stability of African States and it devastating effects on
the economic and social development of the African peoples'. It has been
acknowledged in the seventh Preamble that corruption 'undermines accountability
and transparency in the management of public affairs as well as socio-economic
development on the continent'. Accordingly, in Article 5 of that Convention, State
Parties undertook to adopt legislative and other measures that are required to
establish as offences the wide-ranging acts mentioned in para 1 of Article 4 of that
Convention. Similarly, in the first Preamble of the United Nations Convention against
14
Corruption which Namibia has also ratified, Sate Parties to that Convention
expressed their concern 'about the seriousness of problems and threats posed by
corruption to the stability and security of societies, undermining the institutions and
values of democracy, ethical values and justice and jeopardizing sustainable
development and the rule of law'. Accordingly, paras 1 and 2 of Article 5 provide as
follows:
'1.
Each State Party shall, in accordance with the fundamental principles of its
legal system, develop and implement or maintain effective, coordinated anticorruption
policies that promote the participation of society and reflect the principles of the rule of
law, proper management of public affairs and public property, integrity, transparency
and accountability.
2.
Each State Party shall endeavour to establish and promote effective practices
aimed at the prevention of corruption.'
[17]
The Lameck matter was decided after the Court below had delivered its
judgment discharging the respondents on the main counts. We have been informed
that that judgment has not been appealed against and in the current proceedings; the
state has expressly accepted that the decision of the High Court finding that the
definition of the word 'corruptly' in the Act was overbroad is correct. The Act being
relatively new, the law in this field should be allowed to evolve. The Court below
should be given amplitude to develop this important and nascent piece of legislation.
For these reason, we decline the invitation by counsel for the first respondent to
proffer a definition of the word 'corruption'. That exercise should be reserved for
another day.
15
[18]
The Act, in s 32, explicitly states that ‘gratification’ includes ‘any discount’
which the public officer in terms of s 43 and more particularly section 43(1) is alleged
to have obtained. We are of the prima facie view that the appellant has tendered
sufficient evidence to prove that the first and second respondents, acted together to
obtain gratification in the form of lower rates, for the first respondent and that they
knew or ought to know of these lower rates offered to corporate clients such as
Government by the rental company in view of the fact that as senior officials in the
National Assembly they were responsible for signing documents necessary for the
renting of cars to the institution for official use. In the view we take of the matter,
whatever definition one adopts of the word 'corruptly' in s 43(1) of the Act , i.e.
whether common law or its ordinary grammatical meaning, the conduct of the two
respondents in the absence of credible evidence contradicting the evidence led by
the state at the stage of their discharge amounted to corruption. The appellant has
established sufficient evidence upon which a reasonable court may convict the
respondents for the contravention of s 43(1) of the Act. We emphasise, however, that
the views we express on the evidence presented by the appellant are prima facie and
are made within the confines of the evidence apparent from the record.
[19]
The argument raised by the second respondent that there was no evidence
upon which the second respondent may be convicted on the first two main charges
and that he merely acted as the agent of the first respondent, cannot, in our view be
accepted in the light of the above findings.
16
[20]
It was for these reasons that the following order was made:
'(a)
The appeal succeeds.
(b)
The order of the High Court made in Case No. CC14/2008 on 12
August 2010 discharging the first and second respondents in terms of
s. 174 of the Criminal Procedure Act, 1977 on the principal charges
under counts 1, 2 and 3 is set aside and the following order is
substituted:
‘The applications for the discharge of the first and second accused on
the principal charges under counts 1 and 2 and of the first accused on
the principal charge under count 3 are refused.’
(c)
The matter is remitted to the High Court for further adjudication.'
________________________
SHIVUTE CJ
________________________
MARITZ JA
________________________
MAINGA JA
17
APPEARANCES
APPELLANT:
Mr D F Small
Instructed by the Prosecutor-General
FIRST RESPONDENT:
Mr G H Oosthuizen (with him Mr G Narib)
Instructed by Murorua & Associates
SECOND RESPONDENT:
Mr Z J Grobler
Instructed by Grobler & Co
REPORTABLE
CASE NO.: SA 94/2011
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
THE STATE
APPELLANT
and
SYLVIA CONDENTIA VAN WYK
Coram:
Shivute CJ, Maritz JA et Mainga JA
Heard on:
28/06/2012
Delivered on:
15/11/2012
RESPONDENT
_________________________________________________________________
APPEAL JUDGMENT
_________________________________________________________________
MAINGA JA (SHIVUTE CJ AND MARITZ JA CONCURRING)
[1]
A sentence of N$20 000.00 or 3 years imprisonment, plus a further 3 years
imprisonment wholly suspended for 3 years for the respondent’s convictions on 22
counts of fraud in the sum of N$1 223 610.21 perpetrated for over a period of one
and a half years, the appellant contends, is so extremely lenient that it induces a
sense of shock. In addition, it submits, the sentence is the product of several
2
misdirections by the trial Judge and, therefore, warrants it to be set aside on
appeal and to be substituted for an appropriate sentence which suits the nature
and gravity of the offence, the personal circumstances of the respondent and
interests of the society. Whether these contentions are correct, is the question we
are saddled with in this appeal. It arose in this way.
[2]
On 10 March 2009 the respondent, together with Mr Seth Jacobs Louw,
appeared before Parker J in the High Court on 22 counts of fraud in the sum of
N$1 223 610,21 to the actual or potential loss or prejudice of Nutrifood and/or
Independence Catering and/or Windhoek Mechanised Accounting Service. She
pleaded guilty while her co-accused pleaded not guilty. A separation of trials was
ordered and she was convicted as charged on her own admissions. On 5 June
2009 she was sentenced to N$20 000.00 or 3 years imprisonment, plus a further 3
years imprisonment which was wholly suspended for 3 years on condition that she
would not be convicted of the crime of fraud, committed during the period of
suspension.
[3]
The respondent was employed as a creditor’s clerk by Windhoek
Mechanised Accounting Services (Pty) Ltd, a company duly appointed to render
accounting services for various companies, inter alia, Nutrifood and Independence
Catering (Pty) Ltd. As part of its mandate, it was responsible to see to the day to
day accounting requirements of the two companies.
[4]
Respondent’s duties as creditor’s clerk included the reconciliation of supply
invoices, goods received, vouchers and company orders and, if satisfied that
3
payment is due, to make out cheques on behalf of Nutrifood or Independence
Catering in favour of the suppliers; to take the completed cheques to person(s)
authorised to sign the same; and then to effect payment to the creditors
concerned. The scope of the supply contracts entailed the issuing of cheques
worth millions of dollars annually.
[5]
Manzani Enterprises CC was one of the suppliers of food products to
Nutrifood and Independence Catering on a credit basis. Theirs was one of the
portfolios handled by the respondent.
[6]
The respondent and Mr Seth Jacobus Louw devised a scheme to generate
and, thereafter, embezzle and misappropriate duplicate payments by Nutrifood
and Independence Catering to Manzani. Mr Louw approached the respondent and
suggested the scheme. He would use the invoices of Manzani which he would
forward to the respondent. Mr Louw had no connection with Manzani. How he got
hold of Manzani invoices is not clear from the record. The respondent would
duplicate payments to Manzani by causing a genuine payment to be made with
Manzani against a specific invoice and thereafter she would make out a second
cheque in favour of Manzani against the same invoice and, depending on which
company the invoice was addressed to, present it to the authorised person to sign
on behalf of Nutrifood or Independence Catering.
[7]
After the second cheque had been signed, she would then add the words
'c/o S. Louw' or 'c/o S.J. Louw' thereby altering the wording of the payee to read:
'Manzani Enterprises CC c/o S. Louw' or 'Manzani Enterprises CC c/o S.J. Louw'.
4
Thereafter the respondent would deposit the cheques into the Bank Windhoek
account of Mr Louw. Mr Louw, in turn, would deposit half of the deposit received
by him into the respondent’s Standard Bank account.
[8]
The scheme commenced on 28 October 2002 and continued until 28 May
2004 - which is a period of 1 year and 7 months. Nutrifood was defrauded in the
amount of N$1 068 80918 while Independence Catering’s loss amounted to
N$154 801.03, i.e. the sum of N$1 223 610.21. The illicit proceeds of the
fraudulent scheme were shared by the respondent and Mr Louw equally.
The scheme was uncovered during August or November 2004 when the books of
Nutrifood were audited. The auditors approached Mr Penderis, the main
shareholder and Managing Director of Windhoek Mechanised Accounting
Services, and informed him of a duplicated cheque payment. A further internal
investigation was conducted and, within 4 days, they discovered that the scheme
had a far deeper impact than initially thought. Mr Penderis and the senior auditor
of the firm approached the respondent and she admitted to her participation in the
scheme. The respondent purported to give her full co-operation to the
investigation.
[9]
Windhoek Mechanised Accounting Services resolved to recover the losses
from the respondent and Mr Louw. Immovable and movable properties of the
respondent, who is married in community of property, were sold in execution and
an amount of N$22 187.00 was recovered from her. A further amount of N$850
000.00 was recovered from Mr Louw, leaving a balance of N$351 423.21
5
unrecovered. As a result, the respondent and her husband lost virtually everything
they had owned and, at the time of the hearing of the matter, they were residing in
their son’s house.
[10]
Windhoek Mechanised Accounting Services sought to withdraw the charges
laid against respondent in view of her apparent co-operation during the
investigation but the Prosecutor-General, acting in the public interest, nevertheless
proceeded to arraign her for trial.
[11]
That crime does not pay is apparent from the consequences which followed
the uncovering thereof: the respondent and her family lost almost everything they
had worked for during their lives. This much was apparent from the evidence of
the respondent and her husband given in mitigation of sentence. Mr Van Wyk was
very bitter about what the respondent had done and confirmed that it had affected
their marriage detrimentally. Ms Eunice Annatjie Gonzo, a Clinical Psychologist
who also testified in mitigation, paints the picture as follows:
'What also came out was the husband’s passive anger towards his wife, which
could be the reason Mrs Van Wyk informed me (in one of our sessions) that since
the case started their love life have come to a standstill. From my observation and
the interviews conducted it seems the case has shattered the family dynamics in
the Van Wyk household amongst others.'
[12]
In her view, the respondent had been punished enough, and she made her
recommendations as follows:
6
'The … stresses seemed to have shattered Mrs. Van Wyk’s basic coping
mechanisms, leaving her feeling alienated and distrustful. What is more, because
of her religion, she struggled with understanding why she did what she did and
how she could not have foreseen that this will destroy her family thus hurting the
same people she vowed to protect. The circumstance of the event thus included
feelings of helplessness, pain, confusion, self-blame and loss.
General deterrence: Mrs. Van Wyk has realized and accepted that what she did
was wrong. As said by Mrs. Van Wyk where she aware what helping someone will
do to her life (husband, children, family, friends and community) as well as those
who trusted her (employer) she would never have done it. No penalty is or will be
greater than what she had and is still going through. Every day, for her is a
punishment i.e. looking in her family’s accusing eyes, bringing receipts home for
husband to check whether she had really used the money for what she claimed
she will use it for, the constant whispering every time she work past a group of
people (in church, neighbourhood, gatherings), every day waking up in her child’s
house, etc. Consequently, she’s unlikely to commit the same or any crime again.
Individual deterrence: From observation and interviews done, it seems like the
Van Wyk family needs Mrs. Van Wyk to still raise her two young children
especially the boy and continue to look after the family as she has been doing. The
children will suffer the most were she to be sentenced to prison.
Protection from public: Looking at her Background History as well as Findings of
her Personality Tests, Mrs. Van Wyk is no threat to the general public. She even
went as far as asking for forgiveness from her previous employer who not only
forgave her but also testified on her behalf (see her employer’s testimony).
Rehabilitation: In her case the sentence will not change her behaviour nor
prevent further offences as there already is a behavioural change in Mrs. Van
Wyk. During the interviews what repeatedly came out clearly is that she had
learned from her wrongdoings and she’s unlikely to engage in such activities
again. What helps in her case is her religion, her family and church’s support as
well as the forgiveness she received from her previous employer. She will,
however, benefit from intensive therapy to deal with the shame, self-blame and
anger towards herself.
7
Lastly, Mrs. Van Wyk has seen and experienced the full impact of what she had
done wrong. She had and is still punished for that. The question to ask is the
objective for punishment and more importantly what outcome we want to achieve
with the given punishment. This is a first offender, who had admitted guilt to the
offence committed and chose not to lie. It is indeed this character trait that
indicates that we are dealing with an honest upright member of the public who
made a mistake in judgment. She engages in community outreach programmes
with her church and is a loving and caring mother to her children. With therapy I
trust that she will be ready to return to the world of work and contribute to the
economic grow of our country.'
[13]
Mr Penderis, the managing director of the complainant who was called to
testify in aggravation of sentence, was more of a witness for the respondent than
the State. He sought to withdraw the case against the respondent for her cooperation when the fraud came to light. He testified that he would not like to see
her in jail, if it was only up to him, he would have had no problem to re-employ her,
but he thought it would be uncomfortable for her and her colleagues that are still at
the company. For the 7 years she worked for Windhoek Mechanised Accounting
Services, she had an impeccable record. The fraud came as a shock to both the
management and respondent’s colleagues. He thought the respondent and her
family had been through hell since the fraud came to light and that he did not think
that it was in respondent’s character to do what she had done.
[14]
The sentiments of Mr Penderis and the views of the Clinical Psychologist
played a significant role in the consideration of sentence. Inasmuch as both Mr
Penderis and the Clinical Psychologist acknowledged the wrongfulness of the
crime the respondent committed, the evidence of Mr Penderis and the report of the
8
Clinical Psychologist focussed predominantly on the interests of respondent and
evidenced scant consideration of the gravity of the crime, the manner and the
period over which it was committed and the need for the sentence imposed to
serve as a deterrent to other would be offenders who may harbour similar notions
– more so because the crime of fraud tends to rear its ugly face all too frequently
in this country.
[15]
The manner in which the trial Judge dealt with these considerations and the
degree of emphasis placed on the evidence of Mr Penderis and the Clinical
Psychologist is to be gleaned from the following extracts of the judgment.
'[7]
… That may be so, but the fact is irrefragable that the identifiable
complainant whose interest the Court must take account of when considering the
interests of an amorphous entity, to wit, society has lost virtually nothing in virtue of
the crime. …
[8]
In the same vein, it is significant to note that in view of the complainant
company’s attitude, as testified to by Mr Penderis, it would not want to see the
accused “go to jail”. …
[9]
The last to give evidence was Ms Eunice A. Gonzo, a clinical psychologist,
who had earlier filed with the Court, a “Clinical Psychological Report: PreSentencing Report”. Resulting from the analysis she conducted on the accused,
Ms Gonzo made the following observations and recommendations: (1) No penalty
is or will be greater than what she had gone through and is going through as a
consequence of the commission of the crime. (2) The children of the family will
suffer the most if a custodial sentence is imposed. (3) The accused is no threat to
the general public. (4) The accused has learned her lesson from her wrongdoing
and so she is unlikely to engage in such criminal activity again. (5) The accused is
an honest upright member of the public who “made a mistake in judgment”. …
9
[10]
The essence of Mr Penderis’s evidence should carry a great deal of weight
in favour of the accused; for, in considering the interests of society in sentencing, I
ought to take into account the overriding interests of those who specifically have
suffered loss as result of the accused’s action. (See The State v Gert Herman
Losper Case No.: CC11/2007 (on sentence)(unreported).)
[11]
The crime for which the accused has been convicted is a serious offence;
and indeed Mr. Murorua concedes that fact; and I agree with Mr. Marondedze that
the reprehension of the crime is brought into sharper focus; considering the fact
that the crime was committed over a period of 12 months. This is an aggravating
factor that must count against the accused. But there are the above-mentioned
weighty mitigating factors, and, in my opinion, they should markedly blunt the
seriousness of the offence to the extent that I think I must call into play the fourth
element which a court ought to take into account when sentencing, namely, “a
measure of mercy”.
[12]
… On this point, I accept Mr. Murorua’s submission that the accused is not
a danger to the community or a threat to society. That was also the evidence of Ms
Gonzo, which stands unchallenged. From all this, I conclude that the likelihood that
she can continue to be useful to her community cannot be ruled out.
[18]
It is my opinion that the principle of consistency of sentencing should not
be taken too far as to do away with the principle of individualization of punishment,
otherwise the system of criminal justice would be unfair and unreasonable. The
objective and relevant facts in the instant case are not similar to the facts of any of
the cases Mr. Marondedze is so enamoured with. In particular, one must not lose
sight of the three superlatively significant distinguishing features of the instant
case, sc.: (1) all the amounts involved in the crime have been recovered by the
complainant; (2) the complainant, whose interest must be paramount in any
consideration of interests of an amorphous entity, i.e. society, had indicated its
desire to withdraw all the charges against the complainant and actually took the
necessary steps to effectuate its desire; and (3) A representative of the
complainant gave evidence in mitigation in favour of the accused in which he
pressed on the Court that he didn’t think in the circumstances of the case and in
the personal circumstances of the accused, the accused should receive a
custodial punishment.'
10
[16]
We heed to the admonition that punishment is a matter for the discretion of
the trial court when we consider the reasoning of the Court below. S v Rabie 1975
(4) SA 855 (A) at 857D-E. But a Court of Appeal may interfere with that discretion
if the trial court has not exercised its discretion judicially or properly. That occurs if
the trial court –
‘has committed a misdirection of fact or law which by its nature, degree or
seriousness is such ’that it shows, directly or inferentially that the Court did not
exercise its discretion at all or exercised it improperly or unreasonably’ (see S v
Pillay 1977 (4) SA 531 (A) at 535E-F); if a material irregularity has occurred in the
sentence proceedings (S v Tjiho 1991 NR 361 (HC) at 366B); if the sentence is
manifestly inappropriate given the gravity of the offence and induces a sense of
shock (S v Salzwedel and Others 2000 (1) SA 786 (SCA) at 790D-E); or a patent
and disturbing disparity exists between the sentence that was imposed and the
sentence that the Court of appeal would have imposed had it been the Court of
first instance (S v Van Wyk (supra) at 447H-448A (NR), at 165d-g (SACR); S v
Petkar 1988 (3) SA 571 (A) at 574D); if there has been an overemphasis of one of
the triad of sentencing interests at the expense of another (S v Zinn 1969 (2) SA
537 (A) at 540F-G; and S v Salzwedel and Others (supra) at 790D-F); or if there
has been such an excessive devotion to further a particular sentencing objective
that others are obscured (S v Maseko 1982 (1) SA 99 (A) at 102F).’1
[17]
By placing such a degree of emphasis on the evidence of Mr Penderis and
the views of the Clinical Psychologist and by attaching so much weight to the
personal circumstances of the respondent, it appears to me that the Court below
underemphasised the other two sentencing guidelines of the triad proposed in S v
Zinn 1969 (2) SA 537 (A) at 540. The need for a balanced approach was
1
See also S v Alexander, (supra) at 5A-E; S v Gaseb and Others 2000 NR 139
(SC) at 167G-I; S v Shikunga and Others 1997 NR 156 (SC) at 173B-E.
11
emphasised in S v Nakale and Others (No 2) 2007 (2) NR 427 (HC) at 430D; S v
M 2007 (2) NR 434 (HC) at 438F-H and S v Tjiho 1991 NR 361 (HC) at 365B-C. I
must hasten to add that 'the duty to harmonise and balance does not imply that
equal weight or value must be given to the different factors. Situations can arise
where it is necessary (indeed it is often unavoidable) to emphasise one at the
expense of the other'. Per Ackerman AJA in S v Van Wyk 1993 NR 426 (SC) at
448E-F (1992 (1) SACR 147 (Nm) at 165i-166a). The application of these factors
cannot be subject to rigid rules, since it is obvious that the dynamics are
influenced by time and place and because the facts of each case vary ‘infinitely’.
See S v Alexander 2006 (1) NR 1 (SCA) at 8B-D.
[18]
The trial Judge misdirected himself on the facts when he stated that 'all the
amounts involved in the crime have been recovered by the complainant' and that
that the complainant (Windhoek Mechanised Accounting Services (Pty) Ltd) 'has
lost virtually nothing in virtue of the crime'. It is clear from the evidence that only
N$872 187,00 was recovered, leaving an outstanding balance of N$351 434,21
unrecovered. Moreover, the bulk of the amount recovered came from Mr Louw.
Only N$22 187,00 was recovered from the respondent. Mr Penderis in his own
words stated: '…I think we all focused on getting the money back and that
happened to a large degree'. He was asked whether there were hopes of
recovering the balance outstanding, his reply was an emphatic 'No' and he
continued to say, 'Your Honour we in, I think, March 2005 we discussed this matter
with our clients and in view of what Mrs Van Wyk had done, in terms of trying and
help in assisting us, in our opinion, we decided that we would withdraw the
12
charges…'. He was specifically asked whether the company had written off the
amount of N$350 213,00 and his reply was 'Correct'.
[19]
The trial Judge also misdirected himself in law when he failed to accord due
weight to the principle of consistency in sentencing. As a general proposition, he
correctly held that the principle should not be taken too far as to do away with the
principle of individualisation, otherwise the system of criminal justice would
become unfair and unreasonable. What was not adequately appreciated is that
individualisation cannot be gauged in vacuum; it is best served if it is considered
against other sentencing principles, inclusive of those applied in established
precedents. This Court had occasion in the matter of The State v Gerry Wilson
Munyama, Case No. SA 47/2011 delivered on 9 December 2011 unreported, to
state thus:
’[12]
Although it is trite that sentences should be individualised, our Courts
generally strive for uniformity of sentences in cases where there has been a more
or less equal degree of participation in the same offence or offences by
participants with roughly comparable personal circumstances. (S v Goldman,
1990(1) SACR 1 (A) at 3E). In S v Strauss 1990 NR 71, O’Linn J catalogued
nineteen similar crimes of theft of rough and uncut diamonds and stated, “clearly
indicates the approach of the courts in the past. The Court must obviously attach
great weight to this catalogue, while at the same time balancing it against the
principle of individualisation. One must look at which circumstances, personal or
otherwise, can be taken as distinguishing factors…which would justify a sentence
which is out of line with the cases to which the Court has referred.” The principle of
consistency in sentencing has gained wide acceptance. Its significance lies in the
fact that it strives to avert any wide divergence in the sentences imposed in similar
cases and should thus appeal to any reasonable person’s sense of fairness and
justice. One advantage of consistency in sentencing is that it promotes legal
certainty and consequently improves respect for the judicial system. (S v Skrywer,
13
2005 NR 289 (HC); SS Terblanche, The Guide to Sentencing in South Africa, 1999
at 139).’
[20]
Significant disparities in the sentences imposed by different courts or
judicial officers on accused convicted for similar crimes committed under similar
circumstances do not engender public confidence or cultivate respect in the evenhandedness and fairness of our criminal justice system. Even in S v Van Rooyen
and Another 1992 NR 165 (HC) at 187, a case on which the trial Judge appears to
have relied (for other reasons) in arriving at the sentence imposed, the need to
avoid disparities in sentencing was acknowledged as a sentencing guideline:
'In our endeavours to arrive at an appropriate or proper sentence the Courts follow
certain established guidelines:
….
5.
The equal treatment or the co-ordination of sentences imposed for similar
offences committed, so that it cannot be said that the one person was punished
more severely or more leniently than the other.'
[21]
There were both factual and legal misdirections by the trial Court in
imposing the sentence appealed against and this Court is therefore at liberty to
consider the imposition of an appropriate sentence afresh. As Mr Marondedze,
counsel for the appellant correctly argued, the sentence imposed by the trial court
is lenient, such that it induces a sense of shock; therefore it was inappropriate and
disturbingly so. That it was indeed lenient was conceded by Mr Small, counsel for
the respondent. It fails utterly to reflect the gravity of the offence and to take
account of the prevalence of fraud in this country. It is irreconcilable with other
precedents where there has been a more or less equal degree of participation in
14
the same offence or offences by participants with roughly comparable personal
circumstances. The fact that Mr Penderis did not want to see the respondent go to
goal or the views of the clinical psychologist that no penalty is or will be greater
than what she had gone through and is going through as a consequence of the
commission of the crime are clearly important considerations but they should be
accorded their relative weight when considered together with all other mitigating
and aggravating factors in determining an appropriate sentence and not be
allowed to obscure other sentencing objectives.
[22]
By its nature, fraud is a serious crime; its deleterious impact upon societies
is too obvious to require elaboration (see S v Gerry Wilson Munyama, supra, para
[19]; S v Sadler 2000 (1) SACR 331 (SCA) at 336A-B). In this instance, its
seriousness is aggravated both by the large amount involved and the period of
time over which it was repeatedly committed in the execution of a carefully devised
scheme of subterfuge. N$1 223 610.21 is, by any measure, a very substantial sum
of money and the crime was perpetrated on no less that 22 occasions between 28
October 2002 to 28 May 2004.
[23]
It might well be, as the trial Court found on the unchallenged evidence of
the clinical psychologist, that the respondent was no longer a danger or threat to
society, but it should have been careful not to step into the trap of undue leniency
when it comes to the imposition of sentences for a so-called 'white collar crime'. In
S v Sadler, supra, at 335g – 336a Marais JA, whose sentiments I endorse, put it
as follows:
15
'[11] … So called ’white-collar’ crime has, I regret to have to say, often been visited
in South African courts with penalties which are calculated to make the game
seem worth the candle. Justifications often advanced for such inadequate
penalties are the classification of ’white-collar’ crime as non-violent crime and its
perpetrators (where they are first offenders) as not truly being ‘criminals’ or ’prison
material’ by reason of their ostensibly respectable histories and backgrounds.
Empty generalisations of that kind are of no help in assessing appropriate
sentences for ’white-collar’ crime. Their premise is that prison is only a place for
those who commit crimes of violence and that it is not a place for people from
’respectable’ backgrounds even if their dishonesty has caused substantial loss,
was resorted to for no other reason than self-enrichment, and entailed gross
breaches of trust.
[12] These are heresies. Nothing will be gained by lending credence to them. Quite
the contrary. The impression that crime of that kind is not regarded by the courts
as seriously beyond the pale and will probably not be visited with rigorous
punishment will be fostered and more will be tempted to indulge in it.'
[24]
The respondent did not commit the crimes out of personal need. We are
also not persuaded that she had done so to help a friend who apparently needed
money. If she committed the crime for purely altruistic reasons, it does not explain
why she required her 'needy' friend to repay her half of the illegitimate proceeds of
their fraudulent scheme. Moreover, she did not use the money received from him
to address any pressing personal needs but rather to finance lavish holidays and
purchases. In my view, the conclusion that her participation in the commission of
the crimes was mainly motivated by personal greed is unavoidable. She earned
more money than her husband from her employment. She was appointed to a
position of trust where she transacted millions of dollars on behalf of her
employer’s principals. She betrayed the people who pinned their trust on her and,
on all accounts, had treated her exceptionally well. Her husband, for example,
16
testified that, when she travelled to Holland to visit her sister, Mr Penderis, the
Managing Director of her then employer, gratuitously purchased her the flight
ticket.
[25]
The misdirections committed by the trial Court are of substantial relevance
to the determination of an appropriate sentence and in the light thereof this Court
is at liberty to consider the imposition of an appropriate sentence afresh. (S v
Pillay, supra, at 535-E-F; S v Fazzie 1964 (4) SA 673 (AD) at 684B–C; S v Pieter
Johan Myburgh (SC), Case No. SA 21/2001 (unreported). The gravity of the crime
and the interests of society were unduly underplayed. The misdirections are of
such a nature, degree or seriousness that they showed inferentially, if not directly,
that the sentencing discretion entrusted to the trial Court was improperly
exercised. I hold the view that the sentence which this Court would have imposed
as a Court of first instance differs so significantly from which the Court below had
imposed.
[26]
I am satisfied after the consideration of all the evidence, that the
circumstances of this case justify the imposition of direct imprisonment to
adequately meet the objectives of sentencing. The disturbingly lenient sentence
imposed by the trial Judge cannot be left undisturbed and falls to be set aside.
[27]
In considering the appropriate sentence, I am particularly mindful that
respondent and her family have lost almost everything that they had worked for
thus far. I also considered the evidence of Mr Penderis and the clinical
psychologist that expounded on her otherwise good character and the limited need
17
for rehabilitation. As Marais JA in S v Sadler, supra, at 337d correctly put it 'one
cannot but feel deeply for them. Regrettably, one cannot allow one’s sympathy for
them to deter one from imposing the kind of sentence dictated by the interests of
justice and society'.
[28]
In the result I make the following order.
1. The sentence imposed by the High Court on 5 June 2009 is set aside
and the following sentence is substituted:
'The accused’s convictions are taken together for purposes of sentence
and she is sentenced to ten (10) years imprisonment of which five (5) years
imprisonment is suspended for a period of five years on condition that the
accused is not convicted of the crimes of fraud or theft committed during
the period of suspension'.
2. The fine of twenty thousand Namibian Dollars (N$20 000,00) paid in
satisfaction of the sentence is ordered refundable to the respondent.
__________________
MAINGA JA
__________________
SHIVUTE CJ
___________________
MARITZ JA
18
Counsel on behalf of the appellant:
Mr EE Marondedze
Instructed by:
Prosecutor-General
Counsel on behalf of the respondent:
Instructed by:
Mr AJB Small
Directorate of Legal Aid
REPORTABLE
CASE NO. SA 12/2011
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
RALLY FOR DEMOCRACY AND PROGRESS
1st Applicant /Appellant
UNITED DEMOCRATIC FRONT OF NAMIBIA
2nd Applicant /Appellant
DEMOCRATIC TURNHALLE ALLIANCE
3rd Applicant /Appellant
CONGRESS OF DEMOCRATS
4th Applicant /Appellant
REPUBLICAN PARTY OF NAMIBIA
5th Applicant /Appellant
ALL PEOPLES PARTY
6th Applicant /Appellant
NATIONAL UNITY DEMOCRATIC ORGANISATION
7th Applicant /Appellant
NAMIBIA DEMOCRATIC MOVEMENT FOR CHANGE
8th Applicant /Appellant
DEMOCRATIC PARTY OF NAMIBIA
9th Applicant /Appellant
and
ELECTORAL COMMISSION OF NAMIBIA
1st Respondent
SWAPO PARTY OF NAMIBIA
2nd Respondent
MONITOR AKSIEGROEP
3rd Respondent
SOUTH WEST AFRICA NATIONAL UNION
4th Respondent
NATIONAL DEMOCRATIC PARTY
5th Respondent
COMMUNIST PARTY
6th Respondent
Coram:
SHIVUTE CJ, MARITZ JA, MAINGA JA, CHOMBA AJA et
MTAMBANENGWE AJA
2
Heard:
3 - 5 October 2011
Delivered:
25 October 2012
_________________________________________________________________
APPEAL JUDGMENT
_________________________________________________________________
THE COURT:
A.
Introduction
[1]
The primary purpose of the applicants is to seek an order setting aside the
November 2009 general election for members of the National Assembly which,
they claim, must be avoided on account of numerous corrupt, illegal, irregular and
unprocedural election practices which resulted in an undue election or return. To
that end, they profess to draw on – and ultimately seek to vindicate - the principle
of democracy in which our Republic is constitutionally rooted. The first and second
respondents oppose the application and, unsurprisingly, purport to do so in
defence of the very same principle. They deny that the election was marred or its
return affected by the alleged malpractices. They contend that the declared result
reflects the political will of enfranchised Namibians freely exercised in an election
fairly conducted. Neither the election nor its results, they maintain, should be set
aside: Acceding to the applicants’ unfounded and unproven assertions would
subvert the democratically ascertained constitutional and political mandate given
by Namibians to their elected representatives in the National Assembly.
[2]
With the notion of democracy at the core of the conflicting contentions
advanced by the opposing parties in this matter, it is apposite to briefly reflect at
the outset on its constitutional significance and the importance of its place in the
3
adjudication of the multiple issues presented to the Court in the course of this
litigation.
[3]
The principle of democracy is an immutable part of the constitutional
bedrock upon which our country has been founded. It is historically, ideologically
and socio-politically profoundly important to our character and constitution as a
nation: It is the first mentioned of the interrelated, foundational triad of principles
on which our State is constitutionally grounded. 1 Its scope and import are
deepened and augmented by the other two equally important principles
proclaimed in the same constitutional breath: the rule of law and justice for all.
Moreover, as a precept fundamental to our values and aspirations as a nation, its
import is repeatedly echoed throughout our Constitution, from the Preamble to the
Schedules. Its purpose is articulated in the third paragraph of the Preamble:2 to
effectively maintain and protect the fundamental complementary values of human
dignity, equality, freedom, justice and peace3 and the right to life, liberty and the
pursuit of happiness 4
in a democratic society, where the government is
responsible to freely elected representatives of the people, operating under a
sovereign constitution and a free and independent judiciary. Its essence is
captured in the founding provision of the Constitution that '(a)ll power shall vest in
the people of Namibia who shall exercise their sovereignty through the democratic
institutions of the State'; 5 its protection is enduringly accorded to all Namibian
1
See: Article 1(1) of the Namibian Constitution.
Referring to the rights articulated in the first two paragraphs of the preamble, it reads: 'Whereas
the said rights are most effectively maintained and protected in a democratic society, where the
government is responsible to freely elected representatives of the people, operating under a
sovereign constitution and a free and independent judiciary'.
3
Enunciated in the first paragraph of the Preamble.
4
Recorded in the second paragraph of the Preamble.
5
Article 1(2) of the Constitution.
2
4
citizens, 6 immutably entrenched as a fundamental right 7 and adherence to it is
demanded for the legitimate composition of democratic institutions at all levels of
State.8 Respect for - and categorical adherence to the letter and spirit of - this
principle is required in peremptory terms from all Namibians, institutions and
agencies of State.9
[4]
The essence of the democratic process by which the sovereignty and
power of the Namibian people as a body politic are democratically converted into
representative powers of State exercisable by its institutions under the Constitution
was captured in an earlier discussion of the subject by this Court10:
'The right accorded to people on the basis of equal and universal adult suffrage to
freely assert their political will in elections regularly held and fairly conducted is a
fundamental and immutable premise for the legitimacy of government in any
representative democracy.
It is by secret ballot in elections otherwise
transparently and accountably conducted that the socio-political will of individuals
and, ultimately, that of all enfranchised citizens as a political collective, is
transformed into representative government: a “government of the people, by the
6
See: Article 17 of the Constitution and in particular Sub-Article (1) and (2) thereof which read:
'(1) All citizens shall have the right to participate in peaceful political activity intended to
influence the composition and policies of the Government. All citizens shall have the right to form
and join political parties and, subject to such modifications prescribed by law as are necessary in a
Democratic society, to participate in the conduct of public affairs, whether directly or through freely
chosen representatives.
(2) Every citizen who has reached the age of eighteen (18) years shall have the right to
vote and who has reached the age of twenty-one (21) years to be elected to public office, unless
otherwise provided herein.'.
7
Compare Article 131 of the Constitution which provides: 'No repeal or amendment of any of the
provisions of Chapter 3 thereof, in so far as such repeal or amendment diminishes or detracts from
the fundamental rights and freedoms contained and defined in that Chapter, shall be permissible
under this Constitution, and no such purported repeal or amendment shall be valid or have any
force or effect.'
8
See: Article 28 (Presidency); Articles 46(1)(a), 49 and 50 and Schedule 4 (National Assembly);
Articles 69 and 70 (National Council); Article 106 (Regional Councils) and Article 111(3) of the
Constitution (Local Authority Councils).
9
Compare Article 5 of the Constitution.
10
In para 1 of the judgment in Rally for Democracy and Progress and Others v Electoral
Commission of Namibia and Others 2010 (2) NR 487 (SC).
5
people, for the people”.
It is through the electoral process that policies of
governance are shaped and endorsed or rejected; that political representation in
constitutional structures of governance is reaffirmed or rearranged and that the will
of the people is demonstratively expressed and credibly ascertained.' (footnotes
omitted)
[5]
These and similar 11 considerations must have prevailed on Parliament’s
collective mind when it passed, and subsequently amended,12 the Electoral Act,
1992 (the 'Act') to establish structures, determine procedures and create
mechanisms to facilitate democratic representation in those institutions of State.
The Act essentially provides a statutory framework for the regular conduct of
national and regional multi-party elections in a free, fair, transparent and
accountable manner. As this Court has previously noted in summary, the Act -
'regulates the registration of voters and political parties, the compilation of voters'
registers, the nomination of candidates and the conduct of elections under the fair
and impartial direction, supervision and control of an Electoral Commission. Its
provisions seek to further trench the democratic principles on which Namibia was
founded and to promote and secure the free and fair election of political office
bearers in a transparent and accountable manner. To that end, the Act
criminalises electoral fraud and malpractices in all their manifestations, including
conduct intended to improperly manipulate the casting of votes, undermine the
integrity and fairness of the electoral process and detract from the reliability of the
results. These include corrupt and illegal practices, infringements which
compromise the secrecy of the ballot, wilful neglect of duties by election officials
11
Such as those which, in respect of the 2009 amendment of the Electoral Act, 1992, found
expression in the Southern African Development Community’s 'Principles and Guidelines
Governing Democratic Elections' (adopted by the SADC Summit in Mauritius during August 2004).
The SADC Principles and Guidelines, in turn, expressly refers to and draw on the 'OAU/AU
Declaration on the Principles Governing Democratic Elections in Africa' - AHG/DECL.1 (XXXVIII)
approved by the Assembly of Heads of State and Government of the Organisation of African Unity
(OAU) at its 38th Ordinary Session held in Durban, South Africa during 2002 and the 'Guidelines
for African Union Electoral Observation and Monitoring Missions' - EX/CL/35 (III) Annex II.
12
Compare the Electoral Amendment Acts of 1994, 1998, 1999, 2003, 2006, 2009 and 2010 (Nos.
23 of 1994, 30 of 1998, 11 of 1999, 19 of 1999, 7 of 2003, 4 of 2006, 7 of 2009 and 11 of 2010).
6
and any conduct which unlawfully interferes with the electoral mechanism, election
officials, polling stations, polling equipment or the voting process in general.'13
[6]
The Courts were invested with powers to preclude or punish election
malpractices – whatever the manifestation thereof and irrespective of whether they
have been initiated or perpetrated by voters, candidates, political parties, election
officials, 14 institutions or by any other person or authority. Parliament also
recognised the Courts’ overarching judicial powers of constitutional supervision
and review15 and, regard being had to the proposition that the public process of
free and fair elections is an intrinsic, indivisible and essential component of the
democratic aspirations, principles, values and rights articulated in the Constitution,
Parliament also entrusted the Judiciary with the duty to adjudicate election
disputes under the Act,16 including complaints that an election return rendered or
an election itself is undue 'by reason of want of qualification, disqualification,
corrupt and illegal practice, irregularity or by reason of any other cause
whatsoever'. 17 This obligation casts an onerous responsibility on the Courts to
scrupulously maintain and enforce the principle of a representative democracy in
13
See: Rally for Democracy and Progress and 16 Others v Electoral Commission of Namibia and 7
Others, supra, para [5].
14
Including returning officers, presiding officers, polling officers, counting officers, staff member of
the Directorate of Elections or member of the Electoral Commission.
15
Compare the powers of the Superior Courts to 'interpret, implement and uphold' the Constitution
in Articles 79(2) and 80(2). See also: Articles 5, 25 and 81 in this context.
16
Compare, for example, sections 19 (appeals against refusals to register voters), 22 (the hearing
of objections against the inclusion of names on the provisional voters’ register), 23 (the statement
of appeal cases pertaining to the enrolment of voters for decisions to a Judge of the High Court),
45 (appeals against decisions of the Commission regarding the registration of political parties) and
the adjudication of election applications under Part VII of the Act.
17
See s 109 of the Act. It provides as follows: 'An application complaining of an undue return or an
undue election of any person to the office of President or as any member of the National Assembly
or a regional council or local authority council by reason of want of qualification, disqualification,
corrupt and illegal practice, irregularity or by reason of any other cause whatsoever, shall, subject
to the provisions of this Part, be made to the court.'
7
our constitutional society and to jealously guard against any infringement or
erosion thereof.
[7]
The Court a quo acknowledged this responsibility when it dealt in the
following excerpt from its judgment with concerns proffered about the cost
implications which an order setting aside the election might have18:
'We want to extend a clear warning though that if and when circumstances justify
doing so, the Court will set aside an election whatever the cost to the public
finances in doing so. That is what the Constitution demands: cost implications of
setting aside an election must never become the ruse for a corrupt and fraudulent
election, or one conducted in breach of the principles contained in Part V of the
(Act).'
We endorse this view. This is also the approach which this Court must apply to the
adjudication of the disputes before us. We need not be reminded that democracy
in this country was attained through great sacrifice and suffering. The price thereof
cannot be measured in currency and we cannot - and shall not - allow it to be
surrendered or compromised for the sake thereof. This case falls to be adjudicated
on proven facts and established principles of law only – not on the basis of
economic or party-political considerations or conveniences. If, 'by reason of want
of qualification, disqualification, corrupt and illegal practice, irregularity or by
reason of any other cause whatsoever,'19 the Court concludes that the election or
a return thereof was undue; that a person or persons was/were not duly elected;
that another person or persons should be declared duly elected or, for that matter,
18
19
In paragraph 324 of the judgment.
See s 109 of the Act.
8
that no person was or is entitled to be declared duly elected - as the case may be the Court is obliged to grant appropriate relief under the Constitution20 and the Act
to meet the specific complaint(s) established.21 Although the specific causes for
election complaints enumerated in s 109 contemplate different methods of illegal
interference with or manipulation of an election and may conveniently be
considered as different manifestations of the wider concept of 'electoral fraud,' the
phrase 'or by reason of any other cause whatsoever' in the section goes further:
the view we take is that it also includes mistakes or non-compliance with the
provisions of Part V of the Act as contemplated in s 95 (which may not always be
accompanied by an illegal intent or improper motive) if it appears to the Court that,
as a result, the election was not conducted in accordance with the principles laid
down in that Part.
[8]
The only margin of tolerance permitted by the Act to the Court in the
adjudication of an election complaint is to be found in ss 95 and 116(4) of the Act.
In terms of s 95, a Court may not set aside the election by reason of a mistake or
non-compliance with the provisions of Part V of the Act if it appears to the Court
that the mistake or non-compliance did not affect the result of the election and that
the election was conducted in accordance with the principles laid down in that
Part. Likewise, in terms of s 116(4), an election shall not be set aside by the Court
'by reason of want of qualification, disqualification, corrupt and illegal practice,
irregularity or by reason of any other cause', if it appears to the Court that the
cause relied on in the election complaint did not affect the result of the election.
20
Including the common law retained under Art. 66(1) of the Constitution and the Courts’ inherent
and express powers contemplated in Articles 78(4), 79 and 80 thereof.
21
These include the powers specifically conferred on it by s 116 of the Act.
9
[9]
Electoral fraud – and even regulatory non-compliance22 which subverts the
principles of a free, fair and transparent election as contemplated in s 95 –
invariably results in the corruption of democracy unless it is timeously detected,
exposed and effectively addressed by all organs of State and the agencies of
Government concerned. Through a plethora of illegal devices and methods, the
perpetrators of electoral fraud and their principals seek to subvert and erode the
expressed political will of enfranchised citizens for their own gain and political
motives. The more extensive the fraud, the greater the deleterious impact on the
reliability of the results and, the higher the number of invalid votes included in the
count, the more dilutive the effect of the fraud is on the power which eligible voters
are constitutionally entitled to exercise through the democratic process. In our
view, there is an irresistible public interest at stake to ensure that the principle of
democracy is not compromised by illegitimate means and methods. We are a
constitutional society and, as such, it is vital that the democratic institutions of
State through which we are governed, legitimately reflect and accurately represent
the powers and aspirations of the Namibian society as a political collective under
the Constitution. On these considerations, we regard the observations by Sachs, J
to be of particular relevance:
'Universal adult suffrage on a common voters' roll is one of the foundational values
of our entire constitutional order. The achievement of the franchise has historically
been important both for the acquisition of the rights of full and effective citizenship
… regardless of race, and for the accomplishment of an all-embracing nationhood.
22
The label 'regulatory non-compliances' is not intended to be all inclusive but used in the
judgment only for the sake of brevity. Subject to the interpretational caveat referred to earlier in the
paragraph, we shall collectively refer to the other grounds for an election complaint as 'electoral
fraud'.
10
The universality of the franchise is important not only for nationhood and
democracy. The vote of each and every citizen is a badge of dignity and of
personhood. Quite literally, it says that everybody counts. In a country of great
disparities of wealth and power it declares that whoever we are, whether rich or
poor, exalted or disgraced, we all belong to the same democratic...nation; that our
destinies are intertwined in a single interactive polity.'23
Although made in another jurisdiction, these remarks sprung from a historical
context of oppression, discrimination and disenfranchisement not dissimilar to ours
and they echo with the same clarity and force some of the underlying reasons for
democratic values and aspirations which we have constitutionally entrenched.
Thus, the constitutional importance of these considerations should not only inform
the Judiciary’s deliberations and judgments on matters where the principle of
democracy is at stake (as in this case) but, as guardians of the Constitution, the
Courts are obliged to - and will - fearlessly uphold and strenuously defend. The
applicants claim that the High Court has failed to do so in this case whereas the
first and second respondents strenuously assert the converse. It is to those
proceedings we shall turn next.
B.
The Proceedings in the High Court
[10]
Except for the Electoral Commission (the 'Commission', cited here and a
quo as the first respondent), all the applicants and respondents are registered
political parties that participated in the 2009-general election for members of the
National Assembly. Some of them also nominated candidates for the Presidential
election which was held at the same time. In the battle for ballots, each sought to
advance its own political manifesto and endeavoured to secure the election of as
23
In August and Another v Electoral Commission and Another, 1999 (3) SA 1 (CC) at para 17.
11
many of the candidates 24 nominated by them on party lists as the principle of
proportional representation would allow for members of the National Assembly. 25
During the run-up to the Presidential and National Assembly elections, the
applicants became concerned about the manner in which the National Voters'
Register for the general election was compiled, certified, published and distributed.
Their initial unease stemmed from the fact that the Register which was made
available for inspection to the public on 9 November 2009
26
comprised
approximately 1,181,835 voters whereas later Registers distributed by the
Commission shortly before the commencement of the election comprised of
822,344 and 820,305 voters respectively. These concerns triggered further
investigations, most notably one done at their behest by a certain Mr Götz to
assess the sufficiency of the Register to fulfil, what they assert, was its primary
purpose: to identify eligible voters before the election, thereby creating the means
to preclude the casting of illegitimate votes and prevent the fraudulent 'stuffing' of
ballot boxes during the election. Already concerned, they were alarmed when,
during the general Presidential and National Assembly elections on 27 and 28
November 2009 and the counting of ballots in the days that followed, they
observed multiple claimed deviations from the prescriptive provisions of Part V of
the Act which regulate the manner in which the elections had to be conducted.
When, on 4 December 2009, the results of the elections were announced27, they
publicly protested the correctness of the returns and questioned the validity of the
elections.
24
They were nominated on party lists compiled and published in terms of sections 59 and 60 of the
Act.
25
As required by Art. 49 of the Constitution.
26
In terms of section 26 (3) of the Act. Notice that the Register was available for inspection was
published by Government Notice No. 225 in Government Gazette 4375 of 9 November 2009.
27
Later published in Government Notice No. 4397 dated 18th of December 2009.
12
[11]
Their political differences notwithstanding, the applicants were unified in
their claim that the entire electoral process was fraught with irregularities. Thus,
they made common cause to continue with their investigations and, seeking to find
documentary support for the alleged pervasive irregularities, they (and their
respective nominees for the Presidential Election) jointly launched an urgent
application in the High Court against the Commission28 on 16 December 2009 to
produce for their inspection a long list of election materials in the Commission’s
possession, including – but not limited to - all counted, unused, rejected and spoilt
ballot papers in respect of both elections and the counterfoils thereof. They also
sought an order allowing them to make copies of some of the material. The
Commission opposed part of the relief sought, most notably, discovery of the ballot
papers. The application was moved in the High Court on 24 December 2009 and
the Court granted part of the opposed relief and, for the balance, issued an order
by agreement between the parties. In summary, the court order facilitated a
discussion of the modalities regarding the inspection and production of the election
materials referred to in its order and enjoined the Commission to make discovery
of those documents by no later than 28 December 2009. By then, the last of the 30
day period within which an election application had to be brought in terms of s
110(1) of the Act29 (i.e. 4 January 2010) was already looming large. To aggravate
matters for the applicants, the auditing process did not commence in time and did
not always proceed smoothly for reasons obscured by hotly contested accusations
and counter assertions which we need not traverse in more detail at this stage.
28
They also cited the other political parties and their presidential nominees who had participated in
the elections but did not make common cause with their claims citing as co-respondents.
29
We shall quote and refer to this section more extensively later in the judgment.
13
The applicants claim that they sought to expedite the auditing process by
employing people in teams that worked in shifts around the clock in seeking to
meet the statutory deadline but that the 'co-operation on the part of the
(Commission) was more in the fashion of dragging feet than in consideration for
the applicants' need to have the application ready as required by the Act.' They
allege that 'startling discoveries' were made during the auditing process and that,
as a result of the delays - attributed by them to the Commission - they were not in
a position to present the Court with all the facts in the election application.
[12]
The election application, which related only to the National Assembly
election, was presented to the registrar of the High Court between 16:00 and
16:30 on the last day of the 30 day period set by s110(1) of the Act. The essence
of the application is captured in the first two paragraphs thereof. Given their
importance to the adjudication of this matter, it is appropriate that they be
reproduced in full: The applicants sought -
'1. An order declaring the election for the National Assembly held on 27
and 28 November 2009 null and void and of no legal force and effect and
that the said election be set aside.
2. Alternatively to prayer 1 above –
2.1 An order declaring the announcement of the election results for
the National Assembly election … null and void and of no legal
force and effect.
2.2 Ordering the first respondent to recount in Windhoek the votes
casted in the said election as provided for in Act 24 of 1992 and to
allow the applicants as well as the second to sixth respondents to
14
exercise their rights in regard to such counting as provided for in the
said Act.'
[13]
In addition, the applicants prayed for an order granting them 'leave to
supplement their papers and to amend the notice of motion before the expiry of
the 10 day period contemplated in s 113 of Act 24 of 1992 . . . and to accept any
supplementary affidavit (or amendment of the notice of motion) already delivered
at the time of the hearing of this application (and within the aforementioned 10 day
period) as part of the applicants’ founding papers of record in this matter.' The
granting of this relief, the applicant maintained, would dispense with the need to
bring further applications to extend the 30 day period contemplated in s 110 of the
Act.
[14]
On 14 January 2010, after the applicants had furnished security for the
election application as determined by the registrar in terms of s 110(3) of the Act
but before the expiry of the 10 day period within which it had to be served on the
respondents in terms of s 113, the applicants lodged an 'Amplified Notice of
Motion' with supporting affidavits. The facts deposed to in the amplified papers not
only sought to substantially augment those presented in support of the initial
application as envisaged in the relief initially sought, but also to broaden the
substantive causes on which the applicants challenged the validity of the National
Assembly election. In addition, the amplified notice of motion also widened the
ambit of the applicants' attack to include a challenge to the validity and results of
the Presidential election. To facilitate, what in effect constituted a further
substantive election application, the applicants joined the individuals nominated by
15
some of them as candidates in the Presidential Election as co-applicants in the
amplified application and cited the remainder of the presidential candidates in that
election as co-respondents.
[15]
Both the original and amplified applications were opposed by the
Commission and the first respondent (the SWAPO Party of Namibia). Extensive
answering affidavits were filed by them in support of their opposition to the
applications. In those affidavits, they not only took issue with the substance of the
facts on which the applicants founded their challenges but also proffered evidence
in rebuttal of those allegations and, in addition, raised a number of procedural
objections in limine. These included, as regards the National Assembly election
application presented on 4 January 2010, the point that, on a proper application of
Rule 3 of the High Court Rules read in conjunction with s 110(1) of the Act, the
application should be struck off the roll because the applicants did not make out a
case in the founding papers that exceptional circumstances as required by Rule
330 existed for the registrar to accept the application outside his or her prescribed
office hours. The application, they contend, was therefore submitted outside the
permissible period prescribed by statute. In respect of the challenge to the validity
and results of the Presidential Election, the Commission and second respondent
contended in limine that, in substance, it was an election application separate and
distinct from the election application earlier brought; that the applicants had failed
to furnish security for the Presidential election application as required by s
30
The Rule provides: 'Except on Saturdays, Sundays and Public Holidays, the offices of the
registrar shall be open from 9 a.m. to 1 p.m. and from 2 p.m. to 4 p.m., save that, for the purpose of
issuing any process or filing any document, other than a notice of intention to defend, the offices
shall be open from 9 a.m. to 1 p.m. and from 2 p.m. to 3 p.m. and the registrar may in exceptional
circumstances issue process and accept documents at any time, and shall do so when directed by
the court or a judge.'
16
110(3)(a) of the Act and, as a result of that failure, 'no further proceedings (could)
be had on the application' according to s 110(3)(c) of the Act.
[16]
Both of these objections found favour with the High Court when the
applications were comprehensively argued before Damaseb JP and Parker J on 1
and 2 March 2010. In the event, both applications were struck off the roll with
costs.31 The applicants abided the order of the Court in relation to the striking of
the Presidential election application but appealed to this Court against the order
made in respect of the National Assembly election. When the appeal was set
down, this Court entertained argument within the limited scope of issues defined
by a direction of the Court issued prior to the hearing32 and, on 6 September 2010
allowed the appeal with costs; set aside the order of the High Court in terms of
which the National Assembly election application had been struck and substituted
it for an order dismissing the respondents’ objection in limine with costs. Finally, it
remitted the matter to the High Court for further adjudication of the numerous
remaining issues in the application.33
[17]
The election application was again set down for hearing in the High Court
on 20 September 2010. The parties were specifically invited to make additional
submissions on the remaining issues subject to further adjudication, should they
be so minded or advised. They declined the opportunity and the Court therefore
reserved judgment to consider those issues on the basis of the submissions made
31
The judgment has been reported as Rally for Democracy and Progress and Others v Electoral
Commission of Namibia and Others, 2009 (2) NR 793 (HC).
32
They appear in para [20] of this Court’s judgment in Rally for Democracy and Progress and
Others v Electoral Commission of Namibia and Others, supra, at 505H-506G.
33
Ibid at 533E-I
17
during the comprehensive hearing on 1 and 2 March 2010. The judgment was
handed down on 14 February 2011.34
[18]
At the outset of the judgment the Court a quo (per Damaseb JP and Parker
J) made it clear that it would read the papers in the amplified notice of motion
down to exclude the parties, relief and allegations relating to the validity of the
Presidential election (which, at the time, was no longer in issue). It proceeded to
identify the affidavits and annexures which the respondents sought to be struck as
inadmissible and the remaining points which were raised by the respondents for
consideration by the Court in limine. The latter included the point taken by both
respondents that it was not permissible for the applicants to lodge - and would not
be competent for the Court to entertain - the amplified notice of motion and
supporting papers presented after expiry of the 30 day period prescribed in
s110(1) of the Act. After considering the nature and effect of the amplified papers
and the scheme of the Act for the presentation of election applications, the Court
concluded that it was not legally permissible for the applicants to lodge the
amplified papers.35 It continued to hold that, even if its conclusion was wrong as a
matter of law, the applicants in any event had to show cause why they should be
permitted to file papers in addition to those already presented. After an analysis of
the evidence in point, the disputes regarding the alleged delays in the auditing
process and the evidential approach to be adopted on those issues, the Court
concluded that the applicants had failed to show that they had been obstructed by
the first respondent to access the election material or that there had been special
34
See: Rally for Democracy and Progress and 9 Others v Electoral Commission of Namibia and 5
Others (2), as yet unreported judgment of the High Court dated 14th of February 2011 in Case No.
1/2010.
35
Ibid para [35].
18
circumstances which justified the amplification which they were seeking. Thus, the
Court concluded 'with firm confidence' that those papers stood to be rejected in
their entirety and, therefore, struck the amplified notice of motion and all the
affidavits and annexures thereto.36
[19]
Having made that order, the Court proceeded to consider the Applicants’
challenge to the National Assembly election solely on the basis of the election
application and documents presented on 4 January 2010.37 It carefully restated the
essence of the 12 specific complaints advanced by the applicants and, in relation
to each one of them, summarised the supporting allegations made by the
applicants, each respondent’s answer thereto, the extensive reply by the
applicants and the numerous documents relied on or referred to by the deponents
in the affidavits submitted by them. With those complaints in mind, the Court
commenced with its analysis of the evidence by referring to the provisions of the
Act relevant to those complaints, the duties of election officials on all levels in that
regard and the powers of the Court in the adjudication of election applications as
contemplated by the Act; by noting the evolution of electoral laws brought about in
this country by amendments to the Act; by restating the evidential approach to be
adopted in deciding disputes of fact apparent from affidavits in motion
proceedings; by summarising the relevant provisions of the Computer Evidence
Act, 1985 and considering the burden of proof in applications of this nature. It
proceeded to analyse and weigh the admissible evidence on each one of the
complaints within the matrix of these legal considerations. For reasons apparent
from the judgment, the Court concluded that the specified complaints were without
36
37
Ibid para [48].
Ibid para [49] and further.
19
substance and had to be dismissed. Except to the extent that some of those
complaints are still alive in the case before us (which we shall consider later in the
judgment), it will serve no useful purpose for us to deal with the reasoning or
findings of the Court a quo on the substance of the other specified complaints
disallowed.
[20]
The Court a quo also referred to a rack of 'general complaints' listed in the
founding affidavit deposed to by Mr Haufiku on behalf of the applicants. These
complaints, the Court recognised, were very serious in form but, it concluded,
were lacking in substance.38 Mr Haufiku properly conceded at the outset that these
complaints were based on reports made to him by polling agents and that he had
no personal knowledge of their substance. He claimed that, due to time
constraints, he was unable to obtain affidavits from the polling agents and
expressed the hope that he would be able to file such affidavits in due course. On
the approach which the Court a quo took to the admissibility of the amplifying
papers, it pointed out that no person was connected by name to the conduct
complained of; that no mention was made of the date on - or of the polling station
at - which the alleged conduct occurred and that the grounds were so vague that
they clearly embarrassed and prejudiced the respondents in responding to them.
The Court therefore struck the general complaints off the record for being vague
and irrelevant.39 In conclusion on the merits, the Court remarked that there was
not one jot or title of evidence which established that any election agent or
counting agent of the applicants was prevented from carrying out his or her
statutory functions. It expressed concern about the generalised and non-specific
38
39
Ibid para [302].
Ibid para [303].
20
allegations made on behalf of the applicants on which they sought the Court to
infer the corrupt stuffing of ballot papers to influence the outcome of the election. It
pointed out that there was not a single proven case of actual ballot stuffing. Finally,
whilst recognising that costs should generally follow the event, the Court criticised
the conduct of the Director of Elections and referred to a number of administrative
lapses in the conduct of the election which gave cause for suspicion and, for those
reasons concluded that special circumstances were disclosed which justified an
order depriving the Commission of its costs in opposing the application. In the
event, the Court a quo made the following order:
'(i)
The application is dismissed.
(ii)
The second respondent is entitled to the costs of its opposition to the
application, such costs to include one instructing counsel and two
instructed counsel.
(iii)
The first respondent is denied its costs of opposing the application.'
C.
The Appeals
[21]
The applicants a quo noted an appeal to this Court on 9 March 2011
'against the whole of the judgment or order' of the High Court. The notice was
withdrawn the next day and a Notice of Appeal in identical terms but excluding the
8th applicant a quo as an appellant was substituted. 40 Stung by the criticism
underlying the special costs order made against it, the Commission also noted a
cross-appeal against the part of the order disallowing the costs of its opposition to
the election application.
40
th
It follows that the 8 applicant a quo did not join the other applicants in their appeal and that any
reference in this judgment to the 'applicants' in proceedings before this Court after 10 March 2011
does not include a reference to the 8th applicant a quo, unless otherwise stated.
21
[22]
The applicants’ endeavour to prosecute their appeal to this Court was, to
say the least, fraught with difficulties – most of which arose as a result of their
failure to comply with the Rules of Court regulating civil appeals. In terms of Rule
5(4)(a),41 the applicants’ legal representatives were required to lodge powers of
attorney (authorising of them to prosecute the appeal on the applicants’ behalf)
within 21 days after the notice of appeal had been lodged. It is common cause that
they failed to comply with this requirement. The powers of attorney were lodged
together with the record of appeal with the registrar on 24 May 2011 – more than
three months after the order appealed against had been made.
[23]
More significantly, the applicants failed to lodge the record of appeal within
the three month period prescribed by Rule 5(5)(b). In addition, they neither sought
nor obtained the respondents consent in writing for an extension of that period as
contemplated in paragraph (c) of the sub-rule.42 The record was eventually only
lodged on 24 May 2011 – 5 days out of time. As a result, the appeal lapsed by
operation of law and could 'only be revived upon the appellant applying for - and
the court granting - condonation for the non-compliance and reinstatement of the
appeal'.43 The assistant registrar of the Court notified the applicants accordingly
41
Rule 5(4)(a) reads: 'If the notice of appeal or of cross-appeal is lodged by a legal practitioner, he
or she shall within 21 days thereafter lodge with the registrar a power of attorney authorising him or
her to prosecute the appeal …'.
42
The relevant parts of Rule 5(5)(b) and (c) read: 'After an appeal has been noted in a civil case
the appellant shall, subject to any special directions issued by the Chief Justice … within three
months of the date of the judgment or order appealed against or … within such further period as
may be agreed to in writing by the respondent, lodge with the registrar four copies of the record of
the proceedings in the court appealed from, and deliver such number of copies to the respondent
as may be considered necessary…'
43
See Ondjava Construction CC v HAW Retailers t/a Ark Trading 2010 (1) NR 286 (SC) at 288C,
para [2] and the authorities referred to therein. Compare also: Channel Life Namibia (Pty) Ltd v
Otto 2008 (2) NR 432 (SC) para 39 and Namib Plains Farming & Tourism CC v Valencia Uranium
(Pty) Ltd & Others 2011 (2) NR 469 (SC) at 475H para 18
22
on 27 May 2011 and, in response, the applicants immediately apprised the
registrar and the respondents of their intention to seek condonation and
reinstatement of the appeal. We shall deal with this application and the application
to condone the late filing of the applicants’ powers of attorney later in this
judgment under the heading: 'Application for Condonation and Reinstatement of
the Appeal'.
[24]
To make matters worse, the applicants were alerted by an objection raised
in the Commission's heads of argument that the record of appeal was incomplete.
The record did not include the respondents' notices to strike out portions of the
applicants' affidavits in the election application. As a result, the applicants were
constrained to bring an application for leave to supplement the record of appeal
and for condonation of their omission to include those notices in the record. This
application will be considered later in this judgment under the heading: 'Application
for Condonation and Leave to Supplement the Record of Appeal'.
[25]
Adding to the self-inflicted procedural challenges they already faced, the
applicants failed to comply with a directive issued by the Chief Justice that their
heads of argument had to be delivered before noon on 19 August 2011. Although
the applicants' heads of argument on the merits of - and prospects of success in the appeal were lodged timeously, their heads of argument on the application for
condonation and reinstatement of the appeal were delivered one day late. This
non-compliance necessitated yet a further application for condonation which we
shall deal with under the heading: 'Application for Condonation: Late Delivery of
Applicants' Heads of Argument'.
23
[26]
Before we turn to consider these applications, we must briefly deal with -
and dispose of - the Commission's cross-appeal. Rule 5(6) regulates the
prosecution of cross-appeals in circumstances where, as has happened in this
case, the main appeal has not been prosecuted within the contemplation of Rule
5(5). It reads:
'(a)
If an appellant who has withdrawn his or her appeal or has failed to lodge
the record of the proceedings in the court appealed from, or, if an appellant is in
terms of paragraph (b) deemed to have withdrawn his or her appeal, a respondent
who has noted a cross-appeal may, within 21 days of the date of receipt by the
respondent or his or her attorney of notice of withdrawal by the appellant or of the
date upon which the appellant is so deemed to have withdrawn his or her appeal,
as the case may be, notify the registrar in writing that he or she desires to
prosecute the cross-appeal, and such respondent shall thereupon for the purposes
of sub-rule (5) be deemed to be the appellant, and the periods prescribed in
paragraphs (a) and (b) thereof shall be calculated as from the date on which the
appellant withdrew his or her appeal or on which the appeal is so deemed to have
been withdrawn.
(b)
If an appellant has failed to lodge the record within the period prescribed
and has not within that period applied to the respondent or his or her attorney for
consent to an extension thereof and given notice to the registrar that he or she has
so applied, he or she shall be deemed to have withdrawn his or her appeal.'
[27]
In the matter of Channel Life Namibia (Pty) Ltd v Otto 44 this Court had
occasion to deal with the interpretation and application of this sub-rule. The
reasoning in the judgment follows a line of authorities45 on the interpretation of a
44
Supra, in paragraphs [27] – [41].
Compare: Santam Versekeringsmaatskappy Bpk v Pietersen, 1970 (4) SA 215 (A) 217C – G;
Moraliswani v Mamili, 1989 (4) SA 1 (A), Court v Standard Bank of SA Ltd; Court v Bester NO and
Others, 1995 (3) SA 123 (A); Mamabolo v Rustenburg Regional Local Council, 2001 (1) SA 135
45
24
similarly worded sub-rule46 which applied in South Africa (and in this Court47 until
its repeal by Rule 19 of the current Rules48) and concluded49 that paragraph (b) of
the sub-rule 'applies to regulate the period within which a cross-appeal is to be
prosecuted and that it does not apply to the present instance where an appellant
failed to deliver the record of appeal timeously as provided for by rule 5(5).'
[28]
Well knowing that the applicants failed to lodge the record of appeal within
the period prescribed by Rule 5(5)(b); that they did not within that period seek the
respondents’ consent to an extension of the time period or notified the registrar
accordingly, the Commission must have appreciated that, for purposes of the
prosecution of its cross-appeal within the time periods prescribed under Rule
5(6)(a), the applicants' appeal was deemed to be withdrawn in terms of paragraph
(b) of the sub-rule on 27 May 2011. Its knowledge of the deemed withdrawal
notwithstanding, the Commission failed to notify the registrar in writing during the
21 days that followed that it intended to prosecute the cross-appeal. In the result,
the Commission's cross-appeal also lapsed50.
[29]
Mr Tötemeyer, who (together with Mr Strydom) appeared for the applicants,
submitted with reference to the sub-rule that the conclusion was inescapable.
Moreover, relying on Rule 5(3), he submits that the notice of cross-appeal lacks
particulars 'in respect of which the variation of the judgment or order of the court
(SCA) and Uitenhage Transitional Local Council v South African Revenue Service, 2004 (1) SA
292 (SCA) ([2003] 4 All SA 37.
46
Rule 5(4)(bis)(a) and (b) of what was previously known as the Rules of the Appellate Division of
the Supreme Court of South Africa.
47
By virtue of the transitional provisions in Article 138 of the Constitution.
48
By Government Notice No. 56 of 8 October 1990.
49
Per Strydom AJ in para [39].
50
See: Ondjava Construction CC v HAW Retailers t/a Ark Trading, supra, para [7].
25
appealed from is sought' and that it was in any event defective for that reason.
Finally, he submitted that the cross-appeal was directed at an order of costs made
by the High Court and that, in terms of s18 of the High Court Act, 1990, the order
was not appealable without leave of the High Court or failing, leave of this Court –
which had neither been sought nor obtained by the Commission.
[30]
Counsel for the Commission, Mr Maleka SC (assisted by Mr Namandje),
conceded without cavil that there was no longer a cross-appeal before the Court.
He confirmed that, even if the Court were to reinstate the applicants' appeal, the
Commission would not seek to prosecute the cross-appeal. With that concession
in mind, we do not find it necessary to deal with the other grounds on which Mr
Tötemeyer is challenging the cross-appeal. We did not understand him to seek an
order of costs on behalf of the applicants in respect of the cross-appeal and,
therefore, we do not propose to make such an order. With the cross-appeal out of
the way, we now turn to consider the applicants' condonation application for the
late filing of their heads of argument on the application for condonation and
reinstatement of their lapsed appeal.
D
Application for Condonation: Late Delivery of Applicants' Heads of
Argument
[31]
The applicants are seeking condonation for the late delivery of the heads of
argument advanced by them on the application for condonation and reinstatement
of the appeal. Mr Louw, applicants' instructing counsel, explained that he had
briefed instructed counsel to prepare and complete the applicants' heads of
argument in good time to comply with a Directive of the Chief Justice to the effect
26
that the applicants’ Heads had to be delivered by noon on 19 August 2011.
Unbeknown to him, instructed counsel prepared two sets of Heads, the one
dealing with the application for condonation and reinstatement of the appeal and
the other with the merits of the appeal (if reinstated). The latter set was e-mailed
to his secretary shortly after the commencement of business on the morning of 19
August 2011, printed, copied and filed well in time. The Heads comprised some
118 pages and, due to the urgency which attended to the filing thereof, he had no
time to peruse and inform himself of the matters addressed therein. Later that
morning, a second set of heads was e-mailed to his secretary. Given her
understanding of an earlier telephone conversation which she had with instructed
counsel’s secretary, she mistakenly thought that the attachment to the e-mail was
merely a duplication of the Heads previously mailed to her. Hence, she did not
attend to it any further. She only realised her mistake on 22 August 2011 when
instructed counsel enquired about the second set of Heads during a telephone
conversation. She immediately alerted Mr Louw who lost no time to print, process
and file the heads of argument later the same day and to launch an application for
condonation on the next day.
[32]
Only the second respondent opposed the application for condonation. In an
affidavit filed on its behalf, the second respondent claims that the applicants and their
counsel were grossly negligent and alleges that they wilfully failed to comply with the
Directive of the Chief Justice. It maintains that it was prejudiced because the delay
necessitated the incorporation of amendments to the second respondent’s heads
of argument which were under preparation and had to be filed on 23 August 2011.
It prayed that the application for condonation should be refused with costs,
27
inclusive of the cost of one instructing and three instructed counsel and contended
that the applicants' application for condonation and reinstatement of the appeal
should therefore also be struck off the roll.
[33]
The objection first raised on affidavit was subsequently pursued in the
second respondents heads of argument with reference to the authority in Johnson
v Indingo Sky Gems (Pty) Ltd 51 where the High Court (per Gibson J) held as
follows:
'Today at the hearing, argument has turned substantially on the fact that the delay
was minimal, that no prejudice was occasioned to the respondent by the delay.
Even if I accept that the delay may not have resulted in a great deal of prejudice to
the respondent, what has been of concern to me in this application is whether or
not given that minimal delay (if it is the case, and I do not so find), the applicant's
legal practitioners would have been entitled simply to sit back and ignore the Rules
which he well knew he should have followed.' (at 240G-H) and
'The crux of the matter is that there appears to have been a flagrant breach of the
Rules of Court. Given that course of conduct, my attitude is that the Court can only
ignore such attitude at its peril and to its own prejudice in the running and
administration of the Court's business. Thus my view is that such failure cannot be
overlooked in the circumstances of this case because to do so would be to
encourage laxity in the preparation of Court pleadings. The orderly arrangement of
Court proceedings as presently known, will be a thing of the past. If rules are only
to be followed when a legal practitioner sees fit to do so, then the Rules may as
well be torn up.' (at 241G-H)
[34]
The 'flagrant breach of the Rules of Court' which was discussed in this
judgment related to the failure of the applicant, who knew full, well that its heads of
argument were filed out of time, to bring 'a proper application for condonation'
51
1997 NR 239 (HC]
28
timeously or at all as required by a Practice Directive of the High Court. Instead of
following the prescribed procedure, the applicant’s counsel sought to move
condonation from the Bar. It must immediately be apparent that the level and type
of disregard of procedure which concerned the High Court in Johnson’s case is
entirely different and distinguishable from the circumstances which pertain to the
application at hand. Given the extensive explanation of Mr Louw for the
misunderstanding and the supporting documents and affidavits referred to by him,
the second respondent’s characterisation of his (and applicants) conduct as 'wilful
non-compliance' with the Directive and 'grossly negligent' oversight occasioned by
a 'lack of diligence and a laid-back approach' is entirely unjustified and, to say the
least, a disparaging exaggeration of the events.
[35]
Moreover, there is no evidence that the applicants knew of - or could
conceivably be blamed for - the administrative mistake attributable to their counsel
and, if the short period of the delay occasioned by it is considered, the dilatory
effect of the non-compliance on the preparation and finalisation of the second
respondent’s heads of argument must have been minimal. It is probably for these
reasons that, when the application was moved on behalf of the applicants during
argument, the second respondent's counsel informed the Court that, although the
objection had been taken on the papers and in the heads of argument, the second
respondent no longer intended to 'press the point'.
[36]
We are satisfied that the applicants have given an adequate explanation for
the delay and have shown sufficient cause for the non-compliance to be condoned
under Rule 18. In our view, such an order must follow.
29
[37]
The applicants’ notice of motion contains a tender for the costs of the
application for condonation but only if it is not opposed. It gave notice that, if
opposed, the applicants would pray for the costs occasioned by the opposition.
For the reasons given, we regard the second respondent's initial opposition to the
application to be unreasonable under the circumstances. Moreover, the overly
severe, unsubstantiated and injurious exaggeration of applicants’ counsel’s
conduct, we regret to note, is an example of the unreasonably unyielding and
uncompromising attitudes exhibited by some of the litigants in the conduct of this
litigation. We understand that such intransigent attitudes may well be appropriate
or even necessary for survival in the cauldron of political contests. But, once the
contest moves from a political to a legal forum, the rules of engagement are
different; the adjudication of their disputes is informed by legal – not political –
considerations and unreasonable intransigence hinders rather than facilitates, the
judicial process to resolve them.
[38]
Given the costs occasioned by the second respondent’s unreasonable
opposition to the application – underscored by the belated abandonment thereof in
argument - we are of the view that the second respondent should bear the costs
occasioned by its opposition. All other costs attendant to the application for
condonation must be borne by the applicants.
E
Application for Condonation and Reinstatement of the Appeal
[39]
The applicants' appeal against the order of the High Court dismissing the
election application lapsed as a result of their failure to lodge the record of appeal
30
within the time period prescribed by Rule 5(5)(b). Without reinstatement of the
appeal, no further consideration may be given to it. In addition, the applicants
admit that their legal representatives failed to timeously lodge with the registrar the
powers of attorney authorising them to represent the applicants. In seeking to
redress the consequences of their non-compliance, the applicants brought an
application in which they are seeking orders in the following terms:
'1.
Condoning the appellants' non-compliance with Rule 5(4)(a) … pertaining
to the late filing of the appellants' Powers of Attorney.
2.
Condoning the appellants' non-compliance with Rule 5(6), alternatively
Rule 5(5) … pertaining to the late lodging of the record of proceedings in the Court
a quo.
3.
Directing and ordering that the appellants' appeal under Case No.
SA12/2011 be reinstated.
4.
Costs of the application (only in the event of it being opposed by any of the
respondents).'
[40]
The application is founded on an affidavit deposed to by Mr Haufiku, the
Secretary for International Relations of the first applicant, and supported by the
affidavit of Mr Louw, the applicants' instructing counsel. The application is opposed
by the respondents. In addition to the respondents’ numerous challenges to the
merits of the application, they have also noted a number of objections that must be
decided at the outset.
[41]
The first point raised in limine is that Mr Haufiku lacked authority to institute
and prosecute the application on behalf of all the applicants. On this issue, the
respondents launched a two pronged attack: the first is that the resolutions of the
applicants relied on, authorise the noting of an appeal but fall short of the authority
31
required to bring an application for condonation and reinstatement once the appeal
has lapsed. The second is that those resolutions do not suffice as authority for Mr
Haufiku to launch the application on behalf of the applicants because, on the face
thereof, the resolutions authorised named individuals other than Mr Haufiku to sign
the necessary documents and affidavits on applicants’ behalf. In what follows, we
shall briefly reflect on the general principle that an individual must be authorised to
act on behalf of juristic persons in legal proceedings; the response required if the
claimed authority is challenged and, thereafter, we shall deal with the respondents’
challenges to Mr Haufiku’s authority.
[42]
It is, of course, trite law that '(u)nlike an individual, an artificial person can
only function through its agents and it can only take decisions by the passing of
resolutions in the manner provided by its constitution'. 52 It follows that if legal
proceedings are instituted (or opposed) in the name of a juristic person, the
proceedings must, as a general rule 53 , be properly authorised. In motion
proceedings it will normally suffice if the individual who institutes the proceedings
on behalf of the artificial person states under oath that he or she has been duly
authorised to do so.54 Salutary as the practice may be to support an allegation to
that effect by attaching a certified copy of the resolution of the juristic person
authorizing the institution of the proceedings by the individual at its instance, it is
52
Per Watermeyer J in Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C) at
351E. Compare also: AJ Jacobs t/a Southern Engineering v The Chairman of the Nampower
Tender Board and Another (unreported judgment of the High Court in Case No A 140/07 delivered
on 11 March 2008).
53
It is not necessary for purposes of this judgment to consider permissible exceptions to this
general rule.
54
Cf Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at 615H
32
not usually required. 55 In civil practice and procedure legal challenges to the
asserted authority of individuals purporting to act on behalf of juristic persons are
not infrequent and range in force and scope from bare denials to incontrovertible
evidential proof that the action taken has not been authorised. The nature of the
response expected by the Courts of the individual purporting act on authority of the
artificial person depends on the evidential substance of the challenge. It is trite that
not any challenge will suffice. The High Court recently dealt with challenges of that
nature in the following manner:56
'It is now settled that in order to invoke the principle that a party whose authority is
challenged must provide proof of authority, the trigger-challenge must be a strong
one. It is not any challenge: Otherwise motion proceedings will become a hotbed
for the most spurious challenges to authority that will only protract litigation to no
end. This principle is firmly settled in our practice. It was stated as follows in Scott
and Others v Hanekom and Others 1980 (3) SA 1182 (C) at 1190E – G:
"In cases in which the respondent in motion proceedings has put the
authority of the applicant to bring proceedings in issue, the Courts have
attached considerable importance to the failure of the respondent to offer
any evidence at all to suggest that the applicant is not properly before the
Court, holding in such circumstances that a minimum of evidence will be
required from the applicant. This approach is adopted despite the fact that
the question of the existence of authority is often peculiarly within the
knowledge of the applicant and not his opponent. A fortiori is this approach
appropriate in a case where the respondent has equal access to the true
facts." (Own emphasis added and footnotes omitted.)
55
See: Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk, supra, at 352A. Compare also:
Wlotzkasbaken Home Owners Association and Another v Erongo Regional Council and Others
2007 (2) NR 799 (HC) at 805F - 806C and Otjozondu Mining (Pty) Ltd v Purity Manganese (Pty)
Ltd 2011 (1) NR 298 (HC) at 312H para 53 where Damaseb JP held: 'It is now trite that the
applicant need do no more in the founding papers than allege that authorisation has been duly
granted.'
56
In Otjozondu Mining (Pty) Ltd v Purity Manganese (Pty) Ltd , supra, at 312E-I
33
It is now trite that the applicant need do no more in the founding papers than
allege that authorisation has been duly granted. Where that is alleged, it is open to
the respondent to challenge the averments regarding authorisation. When the
challenge to the authority is a weak one, a minimum of evidence will suffice to
establish such authority: Tattersall and Another v Nedcor Bank Ltd 1995 (3) SA
222 (A) at 228J – 229A.'
[43]
The respondents rely on the resolutions belatedly lodged in the appeal by
the applicants’ legal representatives for their contention that the purpose and
scope of the authority contemplated therein fell short of what was required to
authorise the institution of an application for condonation and reinstatement of the
lapsed appeal on their behalf. The relevant parts of the separate, but similarly
worded resolutions passed by the applicants read as follows:
'Resolved:
A.
That an appeal be lodged in terms of Rule 5(2) of the Rules of the
Supreme Court of Namibia against the whole of the judgment or order…delivered.
. . on 14 February 2011 and generally for effecting the purposes aforesaid, to do or
cause to be done whatsoever shall be requisite, as fully and effectually, for all
intents and purposes, as…we might or could do if personally present and acting
herein – hereby ratifying, allowing and confirming and promising and agreeing to
ratify, allow and confirm all and whatsoever my said…agent(s) shall lawfully do, or
cause to be done, by virtue of these presents.
B.
That (name of the agent appointed by the applicant concerned) be and he
is hereby authorised with power of substitution to institute such appeal and to sign
all the necessary documents, affidavits and powers of attorney on behalf of (the
name of the applicant concerned)'(emphasis added)
34
[44]
Mr Namandje argued this point on behalf of the first respondent at the
hearing and submitted that the authority contemplated in the resolutions expired at
the time the applicants’ appeal lapsed or, as Mr Semenya SC (assisted by Mr
Akweenda) put it on behalf of the second respondent: when the appeal lapsed, the
authorities collapsed. For that reason, he contended, further substantive
resolutions had to be passed to specifically authorise the institution of the
application for condonation and reinstatement of the appeal on the applicants’
behalf. When he was invited to comment on the fact that individuals in leadership
positions within the applicants had filed affidavits in reply to the respondents’
challenge in which they stated that Mr Haufiku had been authorised to do
whatever might be necessary to prosecute the appeal and, in terms of (or pursuant
to) that authority, also had the authority to launch the application for condonation
and reinstatement on the applicants’ behalf, he submitted that the applicants
should have made out a case to that effect in the founding papers. Although
similar challenges to the authority of Mr Haufiku were also raised by the second
respondent, it was not vigorously pursued in argument.
[45] It is clear from the language used in the resolutions adopted by the various
applicants that they authorised, in terms of the widest possible amplitude, the
institution and prosecution of an appeal to the Supreme Court against the High
Court’s dismissal of the election application. To that end, the resolutions
mandated in general terms whatever is required to be done and specifically
contemplate that the persons authorised to act on their behalf, could sign 'all the
necessary documents, affidavits and powers of attorney'. The applicants’ intention
behind the language used is clear: to present the appeal against the dismissal of
35
the election application for adjudication to the Supreme Court. We do not find any
support in the language used to suggest that they intended to stop short of that
objective.
[46]
The fact that the appeal lapsed does not imply that it has come to an
inexorable end57 or that it cannot be revived if reinstated with leave of the Court.
Rule 18 contemplates that the non-compliance which resulted in the appeal’s
lapse, may be excused and that the Court 'may give such directions in matters of
practice and procedure as it may consider just and expedient under the
circumstances'. Those directions may include an order that the appeal be
reinstated. 58 As it is, the ordinary meaning of the word 'reinstate' conveys the
notion of 'restoring or replacing in a lost position'. 59 The 'reinstatement' of an
appeal therefore implies that the lapsed appeal be restored to its position prior to
the lapsing thereof. It follows that a reinstated appeal may be prosecuted on the
strength and within the ambit of the original Notice of Appeal and on the basis of
the authority which mandated its institution and prosecution at the outset: there
would be no need to lodge a fresh Notice of Appeal or, for a juristic person to
adopt yet another resolution mandating its institution and prosecution.
[47]
For these reasons, we are satisfied that an application to condone an
appellant’s non-compliance which resulted in the lapsing of an appeal and for the
57
In Channel Life Namibia (Pty) Ltd v Otto, supra, para [33] this Court held as follows: '…failure to
file an appeal record on time, or to give security within the time laid down by the rules, had the
effect that the appeal lapsed, even though there was no specific rule to that effect. It did not mean
the end of the appeal and it could again be reinstated after application for condonation was made
by the appellant and granted by the court.'
58
Ibid para [39].
59
See: The Concise Oxford Dictionary, 6th ed.
36
reinstatement of the appeal constitutes a proceeding which, by its nature and
purpose, is a procedural step in the prosecution of an appeal and that, on a proper
construction of the wide language used therein, the resolutions adopted and
lodged by the applicants in the appeal contemplate and authorise proceedings of
that nature. In the result, we hold that it was not necessary for the applicants to
adopt resolutions after the lapsing of the appeal in which they specifically
mandated the application for condonation and reinstatement.
[48]
Counsel for both respondents drew our attention to a judgment by Hannah
J in Duntrust (Pty) Ltd v H Sediacek t/a GM Refrigeration60 where the High Court
rejected the applicant’s contention that an application for reinstatement of an
appeal from the Magistrate's Court to the High Court might not necessarily require
a resolution by the applicant because it was part and parcel of the appeal process.
The rejection of the submission came in rather terse terms
61
and without
reference to any authority. It is not apparent from the judgment whether the
applicant adopted a resolution authorising the appeal at all or, if it did, what the
terms thereof were. A closer reading of the judgment shows the Court's 'disquiet'
about procedural irregularities in the application that suggested that the application
had not been authorised. The case falls to be distinguished on that basis. In any
event, to the extent that the Duntrust judgment may be interpreted as authority for
the proposition that, once an appeal has lapsed, a separate and distinct resolution
authorising an application for condonation and reinstatement of an appeal must in
all instances be adopted by juristic persons, irrespective of the terms on which it
60
2005 NR 147 (HC)
At 150I-J where the Court held: 'I do not see how that can be right. The appeal has lapsed and
this is an application for its revival. That is an important, if not fundamental, step.'
61
37
authorised the appeal and prosecution thereof in the first instance, we would
disapprove of it for the reasons given earlier.
[49]
The second, but related attack on Mr Haufiku’s authority is that the
applicants’ resolutions do not authorise him by name to bring the application on
behalf of the applicants. On the face thereof, the resolutions authorised other
individuals, who are identified by name, to sign the necessary documents and
affidavits on behalf of the respective applicants. Attractive at first blush, this attack
falls to be dismissed on closer scrutiny of the resolutions and in view of the
affidavits filed in reply by the applicants. The challenge loses sight of the fact that
the persons authorised by name to institute the appeal and 'to sign all the
necessary documents, affidavits and powers of attorney' on behalf of the
respective applicants, were so authorised 'with power of substitution'. In law, the
'power of substitution' allows for the 'appointment by an agent of another person to
act in his stead as representing the principal, in virtue of a power to do so
contained in his authority as agent.'62 In all instances, the individuals so mandated
by applicants’ resolutions – all leaders or office bearers of the applicants deposed to affidavits, filed specifically to meet the respondents' challenge in reply,
that they, in turn, had appointed Mr Haufiku to act in their stead on behalf of the
applicants in launching the application for condonation and reinstatement.
[50]
Mr Namandje’s contention that these affidavits must be disregarded
because the founding papers should have included the evidence that Mr Haufiku
had been appointed by virtue of the powers of substitution cannot be sustained.
62
See: Claassen, Dictionary of Legal Words and Phrases, Vol. 4
38
We have already referred to the principle that 'in motion proceedings by an
artificial person . . . a deponent's allegation that he was duly authorised would
suffice in the absence of a challenge to his authority.'63 Mr Haufiku’s statement on
oath that he was 'duly authorised by all the appellants to bring (the) application on
their behalf' was therefore enough for the time being to bring the application on
behalf of the applicants. Mr Haufiku had no reason at that stage to anticipate that
his authority to act on behalf of the applicants would be challenged. As it were, he
was the person who, without objection, had sworn to virtually all the founding
affidavits on behalf of the applicants in multiple earlier applications entertained
both here and a quo in proceedings pertaining to the election application. It is only
when his authority was challenged in the respondents’ answering affidavits with
specific reference to the resolutions annexed to the founding papers that it
became necessary for him to expand on the basis of his authority. It is a wellsettled rule of practice that an assertion of authority made in the founding papers,
if challenged, may be expounded on in reply. 64 This is exactly what the applicants
did.
[51]
In the result, the respondents' in limine challenge to Mr Haufiku’s authority
to institute, on behalf of the applicants, an application for condonation and
reinstatement of the election appeal and the application that the founding affidavit
in the application deposed to by him should be struck, are dismissed.
63
To quote Strydom J (as he then was) in South West Africa National Union v Tjozongoro and
Others, 1985 (1) SA 376 (SWA) at 318E
64
Compare, for instance, Wlotzkasbaken Home Owners Assoc v Erongo Regional Council, supra
at para [12].
39
[52]
Before we turn to the next point taken in limine, we must first address a
further related issue: the second respondent’s application to have the applicants'
replying affidavit struck out on the ground that it was not filed within a reasonable
time.
[53]
It is common cause that the affidavit (to which numerous supporting
affidavits were annexed) was filed approximately one month after delivery of the
second respondent's answering affidavit. It is also common cause that, because
the Rules of Court do not prescribe a specific period within which an applicant
must reply to an answering affidavit, the law implies that, unless otherwise directed
by the Court in terms of its inherent powers, it must be done within a reasonable
period. What would constitute a reasonable period, it seems to us, must be
determined in the circumstances of each case, taking into account considerations
such as the scope and complexity of the matter, the availability of witnesses, the
requirements of a fair trial, prejudice occasioned by any delay, the convenience of
the Court and the interests of justice, to name but a few.
[54]
The applicants anticipated that they might be required to explain why the
replying affidavit was filed a month after receipt of the answering affidavits. Thus,
Mr Haufiku stated in the concluding paragraph of the replying affidavit that the
reply could have been delivered earlier had it not been for the challenge to his
authority which was raised in the respondents' answering affidavits. As a result, he
stated, the applicants had to obtain affidavits from the persons designated as
agents in the applicants' resolutions (most of them political leaders) to confirm that
they had appointed and authorised him under their powers of substitution to act as
40
agent for and on behalf of the applicants in the application. Two of them were
abroad at the time and only returned on the weekend of 13 and 14 August 2011.
They were only able to depose to their supporting affidavits the day following their
return. The replying affidavit was delivered two days later.
[55]
Mr Namandje, to his credit, did not question the importance of the affidavits
to the applicants’ cause. His complaint was that, although the affidavits had been
filed before the applicants' heads of argument were due, the first respondent's
Heads were under preparation and that some of the research which had been
done became obsolete when, belatedly, the replying affidavit came to hand. As a
result, he submitted, the first respondent was prejudiced.
[56]
It must be immediately clear that the prejudice which the first respondent
claims to have suffered must have been minimal - bordering, at best, on mere
inconvenience. Legal research - and adjustments to the focus of a legal
practitioner’s research as the issues evolve in any litigation - is part and parcel of
life and experience at the Bar. One would hardly expect him to complain if, in the
applicants' heads of argument (which were due to be filed even later), matters of
law were advanced which required of him to do further research and effect
additional adjustments to the first respondent's heads of argument. The claimed
prejudice pales into insignificance when compared to the importance of the
affidavits which the applicants needed to address the challenge to Mr Haufiku’s
authority.
41
[57]
Given the narrow scope of the first respondent's complaint, we do not
propose to deal in any detail with the other considerations to assess whether the
replying affidavit was filed within a reasonable time in the circumstances of this
case. Suffice it to note that the factual and legal issues raised were substantial, if
not vital to the success of the application; that affidavits from numerous individuals
had to be obtained; that the set down of the application was not affected; that the
hearing of the application was not delayed, and that the Court was not
inconvenienced.
[58]
For these reasons, we are satisfied that, in the circumstances of this case,
the replying affidavit was delivered within a reasonable time. The first respondent’s
application that the applicants’ replying affidavit should be struck off the record and
that the application should be considered as if the replying affidavit had not been
filed at all, is therefore dismissed.
[59]
Yet another matter was raised in limine in the second respondent’s heads
of argument about the status of the Namibia Democratic Movement for Change,
cited as the 8th applicant in the proceedings a quo. It was submitted that the
appeal noted by it should also be 'deemed to be withdrawn'; that it had not
joined the other applicants in seeking condonation and reinstatement of the
appeal and that it had failed to file heads of argument. For those reasons, it was
submitted that its appeal should be struck off with costs. These contentions may
be disposed of briefly. They are premised on an incorrect assumption that the 8th
applicant was a party to the lapsed appeal in this Court. Although it was cited as
the 8th applicant in the Notice of Appeal lodged on 9 March 2011, that notice was
42
withdrawn the following day and a fresh notice was lodged from which it is
apparent that it did not join in the appeal. Therefore, the 8th applicant neither was
nor is a party to the proceedings before us and it will not be appropriate to make
the order sought.
[60]
The last matter to consider before we turn to the merits of the application for
condonation and reinstatement of the appeal is the first respondent’s application to
strike out certain parts of the applicants’ papers on the ground that they contain
inadmissible hearsay evidence.
[61]
The most substantial part of the evidentiary material which the first
respondent is seeking the Court to strike out is a transcription of multiple text
messages exchanged between Mr Haufiku and Mr Louw by using the Short
Message Service (SMS) facility available on their respective cellular phones. The
text messages highlight the frequent exchanges between the two of them about
the availability of funding for the prosecution of the appeal. The complaint is that,
whoever transcribed the messages attached to the founding affidavit of Mr
Haufiku, failed to certify that the transcription was accurate. This complaint must
be considered in view of the fact that both the individuals involved in the SMS
exchanges (i.e. the authors thereof) referred to - and relied on the correctness of –
the messages in their affidavits filed of record. As a general proposition,65 'hearsay
evidence' 66 in civil proceedings is evidence of the contents of an extra-curial
65
Subject to numerous exceptions and qualifications which we need not deal with for purposes of
this application.
66
We use the phrase in parenthesis, because, as Schreiner JA remarked in Vulcan Rubber Works
(Pty) Ltd v South African Railways and Harbours 1958 (3) SA 285 (A) at 296E-F: ‘No doubt the
difference between evidence and hearsay can be said to be an illustration of a broad rule favouring
43
statement, relied on to prove what it asserts, made by a person who is neither a
party to, nor a witness who gave evidence in the proceedings. 67 In the
circumstances prevailing in this matter, where the authors of the messages refer to
- and rely on - them in affidavits filed of record, the contents of what they had
written do not constitute hearsay evidence. They should be considered no
differently than testimonies by the two of them about what the one had said to the
other. With the exchanges confirmed by them on oath, we find it difficult to
understand why they are suddenly converted into inadmissible hearsay evidence
just because a transcriber had not certified the correctness of the transcription.
[62]
The first respondent prays in the alternative that part of one of the text
messages (exchanged on 5 April 2011 at 15h57) should be struck off as hearsay.
The part reads: ‘On the other account, I learnt the party cheque from Parliament
has been delayed.’ It is common cause on the papers that payment of the
subsidy/grant by Government to parties (the ‘party cheque’) who enjoyed
representation in the National Assembly had been delayed because of an initial
boycott by the first, third and fifth applicants to take up their seats in the National
Assembly. The party cheque was only paid on 26 April 2011. Even if we accept
that the contents of the SMS was based on a report which had been made to Mr
Haufiku out of court by a person who did not confirm it on oath, it was not tendered
the use of the best evidence, but the better way of stating the position is that hearsay, unless it is
brought within one of the recognised exceptions, is not evidence, i.e. legal evidence, at all.’
67
Compare: Akuake v Jansen Van Rensburg 2009 (1) NR 403 (HC) at 406, para [13] where
Damaseb JP held: ‘Under the common-law rule against hearsay, an out-of-court statement by a
person not called as a witness is inadmissible as evidence of any fact or opinion contained in it.’
Compare also the definition referred to in S v Chanda 2005 NR 398 (HC) at 402A-B by Heathcote
AJ: ‘It would suffice to state the definition of hearsay to the following effect, and that is that 'oral and
written statements by persons who are not a party to the proceedings or who are not witnesses in
the proceedings, and who are not called, cannot be tendered as evidence for the truth of what
those oral or written statements say'.’ S v Ndhlovu 2002 (6) SA 305 (SCA) at 316A-B, para [13].
44
for the truth thereof or to prove a fact in dispute between the parties. The message
is what it purports to be and, as such, admissible to confirm the frequency of
exchanges about the availability of funding and to put the exchanges that followed
in proper context. The principle that not all reported statements fall to be
considered as hearsay evidence is well-established in our law:
‘But statements made by non-witnesses are not always hearsay. Whether or not
they are hearsay depends upon the purpose for which they are tendered as
evidence. If they are tendered for their testimonial value (ie, as evidence of the
truth of what they assert), they are hearsay and are excluded because their truth
depends upon the credit of the asserter which can only be tested by his
appearance in the witness box. If, on the other hand, they are tendered for their
circumstantial value to prove something other than the truth of what is asserted,
then they are admissible if what they are tendered to prove is relevant to the
enquiry.’68
[63]
The next target of the application is a statement in Mr Haufiku’s affidavit
which reads:
‘By this time it transpired that the employee at Shatech Printers tasked to prepare
the record of appeal, Ms Gawanas, was apparently on leave and would only return
by Monday the 16th of May 2011’.
This statement is based on - and confirmed in almost identical language in - the
affidavit of Mr Louw, which, we should point out, is not targeted by the application
to strike out. But, even if we accept in favour of the first respondent that a report
68
Per Watermeyer JA in R v Miller, 1939 AD 106 at 119. Compare also Kaputuaza v Executive
Committee of the Administration for the Herero's 1984 (4) SA 295 (SWA) where Bethune J said (at
312F): ‘For establishing that reports were made to the persons concerned, the evidence is
admissible, but in my opinion it is not admissible to prove the correctness of the contents of such
reports.’
45
was made to Mr Louw about the reason for Ms Gawanas’ absence and the
expected date of her return, it does not follow without more that the statement is
inadmissible hearsay. Mr Louw clearly tendered the evidence of what had
transpired not to rely on the truth thereof, but to explain why he had given
instructions that the record of appeal should be ready by 20 May 2011 (and not on
an earlier date).
[64]
The final sentence which the first respondent is seeking to expunge from
the record is also from the affidavit of Mr Haufiku. It reads:
‘I point out that it was expected that these monies would be paid by the end of
March 2011. However, it subsequently transpired that, for reasons unknown to the
Appellants, this payment was delayed and was only received by 26th of April 2011.’
The first respondent acknowledges that, on the face thereof, the statement does
not appear to be hearsay and, therefore, seeks to rely on the text messages to
persuade us that the statement was based on reports which had been made to
him by 'the treasurer'. We do not think that the inference is justifiable. There is only
one text message prior to 26 April 2011 in which reference is made to 'the
treasurer'. It is a message on 13 April 2011 made in response to a question by Mr
Louw whether the first applicant had 'received their allowance yet'. Mr Haufiku
responded that he did not know and would call the treasurer to find out. This he
might well have done, but the allegations which the first respondent is seeking the
Court to strike out are much wider in scope and there is nothing to suggest that he
did not acquire personal knowledge of the facts stated in his capacity as an office
bearer of the first applicant. We have also pointed out earlier in this judgment that
46
it was not disputed that the first, third and fifth applicants had not received the
grants which they had expected would be paid to them. As it is, the first
respondent stated that the grants had not been paid to them at that stage because
'they did not work' during the boycott. It is therefore evident that nothing turns on
the sentence which the first respondent is seeking the Court to strike out.
[65]
In the premise the first applicant’s application to strike out parts of the
applicants’ founding papers is dismissed. It follows from this order (and the earlier
orders made on the in limine applications to strike out the applicants' founding
affidavit and replying affidavits) that the merits of the application for condonation of
the applicants’ non-compliance with Rules 5(4) and (5) and for reinstatement of
the lapsed appeal must be considered in the form and on the facts that it was
presented in. We shall do so presently but, before we do, it is apposite to briefly
pause and reflect on the more significant considerations which must inform the
Court’s determination of applications of this nature.
[66]
The Rules of Court are devised to further and secure procedures for the
inexpensive and expeditious institution, prosecution and completion of litigation in
the interest of the administration of justice; 69 to facilitate adjudication of the
litigation in a manner that meets the convenience of, and resources available to
the Court; to allow the litigants an equal, fair and reasonable opportunity to present
their respective cases fully for final determination to the Court; to accommodate
public interest in the efficiency, regularity, orderliness and finality of the legal
69
Cf Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654C: ‘They are provided to secure the
inexpensive and expeditious completion of litigation before the courts.’ Compare also: L F Boshoff
Investments v Cape Town Municipality (2) 1971 (4) SA 532 (C); Federated Trust Ltd v Botha 1978
(3) SA 645 (A) at 654C.
47
process and, finally, to give procedural effect to the constitutional demand that, in
the determination of their civil rights and obligations, all persons shall be entitled to
a fair and public hearing.70 Some of these considerations have been eloquently
summarized by Slomovitz AJ in Khunou v M Fihrer & Son (Pty) Ltd71:
‘The proper function of a Court is to try disputes between litigants who have real
grievances and to see to it that justice is done. The rules of civil procedure exist in
order to enable Courts to perform this duty with which, in turn, the orderly
functioning, and indeed the very existence, of society is inextricably interwoven.
The Rules of Court are in a sense merely a refinement of the general rules of civil
procedure. They are designed not only to allow litigants to come to grips as
expeditiously and as inexpensively as possible with the real issues between them,
but also to ensure that the Courts dispense justice uniformly and fairly, and that
the true issues which I have mentioned are clarified and tried in a just manner.’
[67]
Given the importance to further these objectives and interests, there are
compelling reasons why the Court, as a general rule, would not countenance nonadherence to its procedures in the absence of sufficient cause. 72 The Rules,
however, ‘are not an end in themselves to be observed for their own sake.’73 It has
often been said, that the Rules ‘exists for the court, not the court for the rules’74
and that the Court will not ‘become the slave of Rules designed and intended to
70
See: Art 12(1)(a) of the Constitution.
1982 (3) SA 353 (W) at 355F-H
72
We were reminded of the remarks of Friedman JP in Molebatsi v Federated Timbers (Pty) Ltd
1996 (3) SA 92 (B) quoted with approval in S v Kakololo, 2004 NR 7 at 10C-E)where he said at
96H-H para 32: ‘The Rules of Court contain qualities of concrete particularity. They are not of an
aleatoric quality. Rules of Court must be observed to facilitate strict compliance with them to ensure
the efficient administration of justice for all concerned. Non-compliance with the said Rules would
encourage casual, easy-going and slipshod practice, which would reduce the high standard of
practice which the Courts are entitled to in administering justice. The provisions of the Rules are
specific and must be complied with; justice and the practice and administration thereof cannot be
allowed to degenerate into disorder.’ See also: Swanepoel v Marais and Others 1992 NR 1 (HC) at
p 2 l-J.
73
Per Van Winsen AJA in Federated Trust Ltd v Botha, supra, at 654D
74
Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA
773 (A) at 783A; Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA) at
377B para [32].
71
48
facilitate it in doing justice’.75 It will interpret and apply them, not in a formalistic
and inflexible manner, but in furtherance of the objectives they are intended to
serve. But, because the Rules cannot conceivably be exhaustive and cater for
every procedural contingency that may arise in the conduct of litigation76, the Court
may draw on its inherent powers77 to relax them78 or, on sufficient cause shown,
excuse non-compliance with them 79 to ensure the efficient, uniform and fair
administration of justice for all concerned.80
[68]
What would constitute 'sufficient cause' for the Court to grant condonation
for the non-compliance with the Rules in any given instance, must be determined
with reference to the facts and circumstances of each case. The factors which the
Court will normally consider in deciding a condonation application are the extent of
the non-compliance with the rule in question, the reasonableness of the
explanation offered for the non-compliance, the bona fides of the application, the
prospects of success on the merits of the case, the importance of the case, the
75
Per Van Winsen J in Riddle v Riddle, 1956 (2) SA 739 (C) at 748.
Khunou v M Fihrer & Son (Pty) Ltd, where it was pointed out (at 356 in fine): ‘Of course the Rules
of Court, like any set of rules, cannot in their very nature provide for every procedural situation that
arises. They are not exhaustive and moreover are sometimes not appropriate to specific cases.
Accordingly the Superior Courts retain an inherent power exercisable within certain limits to
regulate their own procedure and adapt it, and, if needs be, the Rules of Court, according to the
circumstances.’
77
The Court’s inherent power to regulate its own procedures is recognised in Art 78(4) of the
Constitution.
78
Compare s 37 of the Supreme Court Act, 1990 (dealing in subsection (1) with the power to make
the Rules of Court on the matters mentioned therein) and continuing as follows in subsection (2)
thereof: ‘Nothing in this section contained shall preclude the Supreme Court from dealing with any
matter before it, in such manner and on such principles so as to do substantial justice and to
perform its functions and duties most efficially’. The word ‘efficially’ must be understood to mean
'efficiently'. Compare: Schroeder and Another v Solomon and 48 Others 2009 (1) NR 1 (SC) at 10G
para [16] and Nationwide Detectives and Professional Practitioners CC v Standard Bank of
Namibia Ltd 2008 (1) NR 290 (SC) at 298D para [20].
79
See: Rule 18 of the Rules which reads: ‘The Supreme Court may for sufficient cause shown,
excuse the parties from compliance with any of the aforegoing rules and may give such directions
in matters of practice and procedure as it may consider just and expedient under the
circumstances.’
80
Compare: Khunou v M Fihrer & Son (Pty) Ltd, at 355H-I
76
49
respondent's (and where applicable, the public's) interest in the finality of the
judgment, the prejudice suffered by the other litigants as a result of the noncompliance, the convenience of the Court and the avoidance of unnecessary delay
in the administration of justice. 81 These factors, it has been pointed out on
numerous occasions, ‘are not individually decisive, but must be weighed one
against another’,82 and, in the final analysis, must be considered in their totality to
determine whether, as a matter of fairness to both sides83, 'sufficient' cause has
been shown for the Court to grant condonation in the exercise of its judicial
discretion.
[69]
With these observations as a ‘prelude’, we shall first proceed to apply these
considerations to the applicants’ application to condone the late filing of the record
of appeal.
[70]
The record of appeal was filed five days out of time. This is a comparatively
short delay and cannot be regarded by any measure or means as a 'substantive
failure' to comply with the Rule. It is common cause that final adjudication of the
election application is of great importance, not only to the litigants involved but
also to the country and the public at large. We have been at pains to emphasise in
the introduction to this judgment the importance of the principle of democracy and
81
The list is not exhaustive and represents a distillation of jurisprudence on considerations for
condonation most often referred to. The authorities where a more detailed exposition may be found
on the application of these considerations include Namib Plains Farming & Tourism CC v Valencia
Uranium (Pty) Ltd and Others 2011 (2) NR 469 (SC) at 475H-476D paras [18] and [19]; Kamwi v
Duvenhage and Another 2008 (2) NR 656 (SC) at 663A para [23]; Channel Life (Pty) Ltd v Otto,
supra, at 444G-445F, paras [43]-[46] and Chairperson of the Immigration Selection Board v Frank
and Another 2001 NR 107 (SC) at 165G – I.
82
Per Holmes, JA in S v Yusuf, 1968(2) SA 52 (A) at 54. By way of illustration, he continued: ‘…for
example a short delay and good prospects of success might compensate for a weak explanation.’
83
Op cit, at 53G: ‘…the Court has a discretion, to be exercised judicially, on a consideration of the
facts of each case, and in essence it is a matter of fairness to both sides.’
50
the legitimacy of the democratic institutions of State in our constitutional society.
We have referred to the indubitable and significant public interest at stake in free,
fair and transparent multiparty elections and in the assessment and adjudication of
election complaints. We acknowledged the onerous duties and responsibilities
attaching to judicial guardianship of the principles, rights and values articulated in
our Constitution. There is no need to repeat the importance of these
considerations to assess their cumulative weight comparative to a mere 5 day
delay in submitting the record of appeal.
[71]
We have also invited counsel for the respondents to draw the Court's
attention to any specific prejudice suffered by the respondents as a result of the
delay. They were unable to refer to any. Mr Maleka emphasized on behalf of the
first respondent that both the respondents and the public at large 'have an
undeniable and immeasurable interest in finality of the matter'. Mr Semenya, for
the second respondent, referred to the nature of the application and the
importance of the principles at stake to Parliament and civic society alike and, he
too, stressed that finality was in the interest of all. As general propositions, these
contentions are undoubtedly correct. But, do they establish that the applicants’
non-compliance delayed finality or the administration of justice in this instance?
We think not. Given the importance of the matter, the application was set down for
hearing on the earliest possible date in the very next term of the Court’s calendar.
Counsel were invited to address at the hearing not only the application but, on the
assumption that the appeal may be reinstated, also the merits of the appeal. Even
if the record had been filed in time, it would not have been possible to set the
appeal down for hearing at an earlier date. It follows that the 5 days delay did not
51
adversely impact on the Court’s convenience and affected neither the expedited
set down nor the hearing of the application and, if reinstated, the hearing of the
appeal.
[72]
The applicants, speaking jointly through Mr Haufiku filed an extensive
affidavit in support of the application for condonation and reinstatement in which
they seek to detail their efforts to comply with Rule 5(5)(b) and explained the
reasons for their failure to meet its time limits. Distilled to its bare essence, the
applicants allege that, once they had entered into security for the costs of the
appeal and paid outstanding fees and disbursements that had been incurred
earlier, they simply did not have sufficient funds to cover the expenses attendant
on the preparation of the record of appeal.
[73]
They were initially advised that security for the costs of the appeal was
expected to be determined by the registrar at around N$100 000 and that,
because the record to be used in the appeal would essentially be the same as the
one which had been used in the previous appeal (except for one volume which
needed to be transcribed at a cost of N$3 245,26), its preparation would not be
costly and that it would not take long. The affidavit then proceeds to catalogue a
series of financial setbacks: they learned that the costs of the record would be in
excess of N$25 000; the anticipated party subsidy from Government materialized
about a month later than expected and, due to other financial commitments, they only
had a balance of N$100 000 available which they paid over to their legal
representatives in the expectation that it could be utilized in the appeal but, in the end,
had to be applied towards the payment of outstanding legal fees and disbursements;
52
they had to incur costs in defending orders relating to taxations; only a fraction of
the costs taxed in their favour were paid and had to be applied towards the
payment of outstanding legal fees; unforeseen urgent litigation racked up a bill of a
further N$160 000; security for the costs of this appeal was eventually set at
N$150 000 (not N$100 000 as had been anticipated) and had to be entered into
within the 3 month period allowed for the lodging of the record of appeal; efforts to
raise funds from supporters yielded only N$50 000 and, if taken together with a
further contribution of N$100 000 received subsequently, they only had enough to
pay the amount of security determined for the costs of the appeal. It is evident
from the affidavit – and the supporting affidavit of Mr Louw – that the raising of
funds to meet the payment of outstanding legal fees; to cover the additional costs
which they had in prosecuting the collection of costs awarded in their favour and to
resist others; to enter into security for the appeal and to pay for the record of
appeal was a matter which received their continuing attention. These averments
are supported in part by the frequent exchanges of text messages between Mr
Louw and Mr Haufiku. Efforts were made to raise the required funds – some of
them admittedly towards the latter part of the 3 month period because of
unforeseen circumstances which resulted in unexpected expenses.
[74]
With part of the outstanding fees and disbursements due to them paid;
security for the costs of the appeal deposited in trust and a firm commitment given
to pay the disbursements required for the preparation of the record of appeal, the
applicants’ legal representatives were confident enough to issue an instruction to
the court’s transcription services on 11 May 2011 (two days before the expiry of
the 3 month period) that the record of appeal be prepared. Given the amount of
53
work required to prepare, collate, paginate and copy the record and the availability
of personnel knowledgeable about the matter, Mr Louw directed that the record
should be ready by 20 May 2011. His instruction having been complied with, the
record was lodged on the next court day.
[75]
With the benefit of perfect hindsight, the respondents criticize the
sufficiency of the applicants’ efforts; question the rationality of their expectations;
attack the authority of Mr Haufiku to speak on behalf of the applicants and cast
doubt on his knowledge about the financial affairs of the applicants (other than the
first applicant). It was argued on behalf of the respondents that litigation was a
serious matter and 'once having put a hand to the plough, the applicant should
have made arrangements to see the matter through';84 that the applicants either
had funds but that paying for the record of appeal was simply not a priority or that
they did not seek to raise funds with due diligence. Much was also made of the
applicants’ failure to seek the respondents’ consent to an extension of the 3 month
period as contemplated in Rule 5(5)(c).
[76]
It is our considered view that the applicants gave a full explanation of the
efforts which they had made to secure the funds necessary to prosecute the
appeal timeously. Unfortunately, their expectations of income from grants, the
payment of taxed bills of costs, fundraising activities and donations did not always
materialize. To the extent that it did, the income received had to be applied to
address existing obligations (mainly legal fees and disbursements incurred in the
course of earlier proceedings); to fund ongoing urgent litigation about costs in
84
With reference to the dictum of Holmes JA in United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717
(A) at 721E-F.
54
matters ancillary to earlier proceedings or had to be applied towards the payment
of the security determined in the appeal. Although, by hindsight, it might have
been prudent to launch fundraising events earlier or to have conducted or
responded to the urgent litigation about costs differently, we do not find that they
were culpably remiss in their efforts to seek and secure funding towards the
prosecution of the appeal. Once they had made payment to their lawyers in partsettlement of outstanding fees and to enter into security for the prosecution of the
appeal, they lost no time to give their lawyers adequate financial assurances to
allow for the preparation of the record of appeal.
[77]
We must also remark in passing that, given the importance of the
constitutional principles which the Election Application is seeking to vindicate, the
undeniable public interest in the running of free and fair multi-party elections on a
regular basis and the constitutional mandate of the Superior Courts in such
matters, the Court should not be unduly critical of a political party’s failure to
secure funding timeously – even less if the application is bona fide, the delay is
relatively short and has not resulted in any prejudice to the opposing parties,
inconvenience to the Court or otherwise impeded the administration of justice.
[78]
The cumulative effect of all the factors pertinent to the consideration of this
application so strongly favour condonation that we need not dwell at length on the
prospects of success. Suffice it to say that the principles at stake are important;
that complex issues are raised about the interpretation of the Act, the correct
evidential approach to the adjudication of factual issues, the onus of proof and that
the volumes of evidence to be considered is intricate in detail and touch on
55
multiple issues. This is not a matter capable of easy resolution and, although the
legal representatives confidently sought to convince the Court of the merits of their
respective clients’ cases, it would have been bold of them to suggest that the
opposing party’s contentions entertain no reasonable prospects of success.
[79]
For these reasons, we are satisfied that the applicants have shown
sufficient cause why they had failed to lodge the record of appeal within the period
prescribed by Rule 5(5)(b). Thus, it follows that their earlier non-compliance with
the sub rule must be, and is hereby, condoned and the lapsed appeal reinstated.
We shall make an appropriate order to that effect in due course. In what follows,
we shall therefore refer to the 'applicants' as 'appellants'.
[80]
The appellants are also seeking condonation for their non-compliance with
Rule 5(4)(a) pertaining to the late filing of their respective powers of attorney in the
appeal. The sub-rule requires that, if a notice of appeal is lodged by a legal
practitioner on behalf of an appellant, the appellant's legal representative must
lodge with the registrar a power of attorney within 21 days from the date on which
the notice of appeal was lodged.85 It is common cause that the appellants' powers
of attorney were not lodged within the prescribed period. Although it is evident
from the resolutions of the respective appellants authorising the appeal that they
were passed within the 21 day period and that, on the authority of those
resolutions, the powers of attorney were also executed within that period, they
were only lodged together with the record of appeal on 24 May 2011 – about a
85
The sub-rule reads: ‘If the notice of appeal or of cross-appeal is lodged by a legal practitioner, he
or she shall within 21 days thereafter lodge with the registrar a power of attorney authorising him or
her to prosecute the appeal or the cross-appeal.’
56
month and a half out of time. Mr Louw, who confirmed on oath that he had
received the powers of attorney within the prescribed period, frankly admitted that
he was at fault: he thought that they only needed to be lodged within three month
period contemplated in Rule 5(5).
[81]
Both respondents accept that the powers of attorney were executed within
the 21 day period. They were, however, unanimous in characterizing Mr Louw’s
failure to lodge them in time as 'grossly negligent'. This, the first respondent says,
was aggravated by the fact that counsel briefed all the parties shortly after the
appeal had been lodged about the procedures that needed to be followed in
accordance with the Rules. Presumably, this briefing would have included a
reference to the time limits allowed for the lodging of the powers of attorney.
Therefore, they say, Mr Louw should have been aware of it - if not by virtue of his
experience as a legal practitioner of many years standing. In argument, their
counsel referred to the dictum in Swanepoel v Marais and Others, 86 that
negligence on the part of a litigant's legal representative will not necessarily
exonerate the litigant and relied on Saloojee and Another NNO v Minister of
Community Development87 for their contention that the appellants should not be
allowed to escape the results of the legal representative's lack of diligence.
86
1992 NR 1 (HC) at 3E-F
1965 (2) SA 135 (A) where Steyn CJ said (at 141B – F): ‘I should point out, however, that it has
not at any time been held that condonation will not in any circumstances be withheld if the blame
lies with the attorney. There is a limit beyond which a litigant cannot escape the results of his
attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might
have a disastrous effect upon the observance of the Rules of this Court. Considerations ad
misericordiam should not be allowed to become an invitation to laxity.’
87
57
[82]
In the view we take, the appellants' legal representative was entirely at fault
for this non-compliance. There is nothing in the application before us to suggest
that the appellants were or should have been aware of the omission on the part of
their legal representatives. They passed the resolutions authorising the appeal and
executed the powers of attorney required for that purpose timeously. They had
every right to expect that the powers of attorney would be lodged in terms of the
rules. Unlike the other Rules relating to the institution and prosecution of appeals
which impose duties and obligations on the appellants concerned, Rule 5(4)(a)
imposes the obligation to lodge a power of attorney on the legal practitioner who
has lodged a notice of appeal on behalf of an appellant. In the circumstances,
there is no reason to attribute the legal practitioner’s mistaken understanding of
the requirement to the appellants. There is also no suggestion that the
respondents were prejudiced by the non-compliance on the part of the appellants’
legal representatives.
[83]
The object of a power of attorney is ‘... to prevent any person, whose name
is cited in the process, from thereafter repudiating the process and denying his
authority for the issue of the process . . .’.88 As a matter of record, it follows that a
power of attorney must be lodged with the registrar but the rule does not even
require that a copy of it should be delivered to the respondent. The omission did
not cause any delay or inconvenience and, in view of the importance of the case
and the prospects of success to which we have referred to earlier, we are satisfied
that sufficient cause had been shown to excuse the failure to comply with Rule
88
See: United Dominions Corporation (S.A.) Ltd. v Greylings Transport, 1957 (1) SA 609 (T) at
6l4C – D in relation to Rule 7 in that jurisdiction concerning powers of attorney. This dictum was
approved in Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O) at 752D-F and Viljoen v Van der
Walt 1977 (4) SA 65 (T) at 66A-C.
58
5(4)(a) within the 21 day period. In the result, the non-compliance in question must
be condoned and we propose to do so.
F
Application for Condonation and Leave to Supplement the Record of
Appeal
[84]
The first and second respondents delivered notices of their intention to
apply at the hearing in the High Court that parts of the appellants’ (then the
‘applicants’) papers in the election application should be struck out. These
applications were moved at the hearing of the application and the High Court dealt
with them, to the extent required, in the course of its judgment. Inasmuch as the
appeal is against the entire 'judgment or order of the High Court', it is common
cause that the notices to strike out should be included in the record of appeal. The
appellants’ legal representative claims that they were omitted as a result of a bona
fide oversight during the preparation of the record of appeal comprising more than
3000 folios. When attention was drawn to the omission in the first respondent's
heads of argument, the appellants’ legal representative immediately verified the
omission and sought to rectify it. To that end, the appellants brought an application
for leave to supplement the record of appeal by adding and incorporating the two
notices to strike out and for condonation for the failure to include them in the first
instance.
[85]
The application is opposed. In the answering affidavits filed on behalf of the
respective respondents, they seek to draw attention to the fact that an identical
mistake was made in the preparation of the record for the earlier appeal to this
Court and aver that, in the circumstances, the conduct of the appellants and their
59
legal representatives was grossly negligent, unreasonable and constituted a wilful
disregard of the rules. The first respondent also claims that it was prejudiced as a
result of the omission because it had to prepare for the appeal on a record which
was not complete. Significantly, it did not allege that it did not have copies of the
two notices available.
[86]
There is little doubt that the appellants' legal practitioners, who were
entrusted by the appellants to prepare the record of appeal, bear responsibility for
the failure to include the two notices. While we appreciate that it may be difficult to
prepare a record as substantial as the one under consideration, the appellants’
legal representatives should have been mindful not to repeat the same mistake
which had been made previously in the preparation of what, for the greater part
thereof, was essentially the same record for the earlier appeal. That said, it is
difficult to comprehend the respondents’ contention that the remissness of the
appellants’ legal representative should be imputed to the appellants and that their
appeal should be struck as a consequence. There is no evidence to suggest that
the appellants were – or should have been - aware of the omission and that they
should have acted earlier to rectify it. The compilation of a record of this magnitude
comprising hundreds of affidavits and an even greater number of annexures
requires skills which are beyond that of a layperson. That is probably why they
have given instructions to their legal representatives to attend to it.
[87] We are also not convinced that the respondents suffered any significant
prejudice as a result of the failure to include the two notices to strike out. These
notices, after all, emanated from the first and second respondents and they
60
should have had no difficulty to access copies thereof to the extent that they
required the information contained therein to prepare and submit their heads of
argument. If anything, the effort should have been little more than an
inconvenience. It is also not contended that the omission resulted in any delay in
the hearing of the appeal or had any deleterious effect on the administration of
justice. Given the importance of the case and the prospects of success, which we
have discussed earlier in this judgment, we are satisfied that there is no reason
why leave should not be granted to the appellants to supplement the record of
appeal by the addition of the first and second respondents' notices to strike out. In
our view, sufficient cause had been shown that the appellants' failure to have
them included in the first instance, should be condoned.
[88]
With the multiple ancillary and interlocutory applications disposed of –
except for the question of costs which we shall consider towards the end of this
judgment – we now turn to consider the reinstated appeal.
G
Merits - Refusal of Leave to Supplement the Election Application
[89]
In addition to the appellants' prayers in the election application presented
on 4 January 2010 that the National Assembly election be avoided, alternatively
that the results be set aside and a recount be ordered (quoted elsewhere in this
judgment), the appellants also prayed for an order in the following terms:
‘3. Granting the applicants leave to supplement their papers and to amend their
notice of motion, before the expiry of the 10 day period contemplated in section
113 of Act 24 of 1992, such 10 day period commencing on the date when the
election application is presented to the Registrar of the High Court as
61
contemplated in section 110 of the said Act, and to accept any supplementary
affidavit (or amendment of the notice of motion) already delivered at the time of the
hearing of this application (and within the aforementioned 10 day period) as part of
applicants’ founding papers of record in this matter.’
[90]
The appellants included this prayer because they admitted at the outset of
their founding affidavit that, by the end of the 30 day period within which they were
required to lodge the election application in terms of s 110 of the Act, they were
not in possession of all the relevant facts required to substantiate the numerous
grounds on which they were seeking to set aside the election. They claim that the
first respondent ‘has been the sole cause’ of their predicament. In support, they
say that they were obstructed on numerous occasions by the first respondent to
obtain discovery of and access to election materials necessary to substantiate
their complaints. In affidavits filed on their behalf, the appellants advanced a rack
of complaints against the first respondent. We pause here to note that, as is
apparent from the answering affidavits filed on behalf of the first respondent, these
allegations are vehemently denied.
[91]
As foreshadowed in prayer 3 of the election application, and admittedly
without leave, the appellants lodged an ‘Amplified Notice of Motion’ with the
registrar of the High Court on 14 January 2010. The relief prayed for in the
Amplified Notice of Motion is virtually identical to that claimed in the election
application of 4 January 2010 except in two respects: the appellants also sought to
have the Presidential election invalidated and leave was sought to serve the
papers by electronic mail on the 5th respondent. The relief sought in relation to the
Presidential election, as previously mentioned, has since been abandoned and, in
62
what follows, we shall make no further mention of the challenge to that election
and ignore the facts relied on by the appellants for that purpose. The
supplementary affidavits which were presented in support of the Amplified Notice
of Motion were extensive and, by and large, advanced further grounds on which
the appellants sought to challenge the validity of the National Assembly election.
In the appellants' heads of argument, they concede that it is apparent ‘from an
analysis of those additional facts as contained in appellants' amplifying papers . . .
that . . . the bulk of the information contained therein, contains further grounds to
challenge the National Assembly election.’ In addition, but to a much lesser extent,
the appellants sought to reinforce some of the factual allegations made in support
of the earlier election application in an apparent attempt to add more muster to
some of the grounds on which they challenged the return. The election application
presented to the registrar on 4 January 2010 and the Amplified Notice of Motion,
the supplementary affidavits and documents attached thereto and presented to the
registrar on 10 January 2010 were all served on the respondents on 18 January
2010.
[92]
The respondents not only opposed the appellants' prayer for leave to
supplement their papers and to amend the notice of motion in the election
application as prayed for, but also sought to have the Amplified Notice of Motion
as well as the amplified founding affidavit, the confirmatory affidavits and
annexures thereto struck out for want of compliance with the provisions of s 110(1)
and (3) of the Act. They maintained that the introduction of the supplementary
papers to amplify and augment the challenges relied on in the election application
of 4 January was both legally impermissible and substantively unjustifiable.
63
[93]
The Court a quo agreed with the respondents on both points. It held that s
110(1) of the Act, which provides that an ‘election application shall be presented
within 30 days after the day on which the result of the election in question has
been declared,’ is peremptory. It reasoned that the presentation of an election
application cannot be divorced from the determination and provision of security
contemplated in subsection (3) thereof. On a proper construction of the section
and the scheme contemplated by the Act, the determination and payment of
security are jurisdictional facts for the prosecution of an election application.
Inasmuch as an election application must be accompanied by affidavits to support
it, it must follow that the amount of security payable, falls to be determined by the
registrar with reference to the information contained therein. The supplementary
papers, in effect, attempted to introduce new grounds and additional evidence
upon which the appellants sought to set aside the election or obtain a recount of
the ballots cast. To that extent, it constitutes a separate and distinct election
application which is not dependent for its life on the one earlier presented. If
allowed, the Court reasoned, it would in effect circumvent the 30 day limitation
period and the determination and provision of security required by s 110 of the Act:
the appellants would be permitted to prosecute - and the respondents be
constrained to incur costs in opposition to – an amplified application brought
outside the 30-day period on facts and grounds which had not been considered by
the registrar in the determination of security which the appellants had to enter into.
Hence, the Court concluded that the amplified application could not escape the
peremptory provisions of s 110 of the Act and that the appellants had no
64
entitlement to file further papers after the election application of 4 January had
become at issue.
[94]
Without derogating from this conclusion, as we understand its reasoning,
the Court a quo held, by parity of reasoning to remarks of this Court in the
previous appeal,89 that the appellants should have brought an urgent interlocutory
application to obtain leave to amplify prior to delivery of the amplified papers. Such
a course, the Court reasoned, would have afforded the respondents the
opportunity to deal upfront with the allegations of obstruction made against them
and to resolve the issue whether admission of the amplified papers was
permissible under the Act.
[95]
On the assumption that its conclusion (that the amplified papers fell foul of
the peremptory provisions of s 110) was wrong and that it had a discretion in law
to allow the amplified papers as prayed for, the Court proceeded to examine the
evidence to assess whether it should exercise its discretion in favour of the
appellants. It reminded itself that, in deciding whether or not to allow the amplified
papers, it had to apply the principles evident from the following quotation:
‘’If a party to an application files and serves certain affidavits and files additional
affidavits before the other party has replied to them because there was not enough
time to complete all of the affidavits before a fixed time or because new matter has
been discovered or for any other good reason, a court will not reject the additional
89
Rally for Democracy and Progress and Others v Electoral Commission of Namibia and Others,
supra where this Court said the following at 530F-G para [70]: ‘Had the second respondent been
minded to challenge the validity of her decision — and we must again point out that their answering
affidavits manifest no such intention — they could have sought reasons from her for her decision
and brought an application for the urgent review thereof. The review application could have been
enrolled before the same court either before the election application or simultaneously with it.’
65
affidavits solely upon the basis of any alleged rule of practice against the filing of
more than one set of affidavits. If there is an explanation that negatives mala fides
or culpable remissness as the cause of the facts or information not being put
before the court at an earlier stage, the court should incline towards allowing the
affidavits to be filed. But there must be a proper and satisfactory explanation as to
why it was not done earlier and, what is more important, the court must be
satisfied that no prejudice is caused to the opposite party that cannot be remedied
by an appropriate order as to costs.’90
[96]
The Court a quo acknowledged that the appellants premised their
application for amplification on the need for access to the election material to bring
in the election application; the numerous allegations of obstructive conduct on the
part of the first respondent and the claimed absence of prejudice on account of the
fact that the election application only needed to be served 10 days after
presentation thereof to the registrar. It noted the strenuous denials of obstruction
and counter allegations in the answering affidavit deposed to on behalf of the first
respondent. After reference to the appellants' replying affidavit, the Court
acknowledged that there were monumental disputes of fact on about every issue.
Having earlier rejected the contention advanced on behalf of the appellants that
the Plascon-Evans approach to factual disputes on affidavit did not apply to the
determination of the issues at hand, the Court a quo accepted the first
respondent's version that it had not obstructed the appellants during the inspection
process. The evidence, it held, rather suggested that the appellants had sought to
obtain too much material; that they had been ill-equipped to sift through all the
material in good time; that they underestimated the size of the task, and that they
should have been able to file the affidavits in time because they had taken a
90
The quote is from the authoritative work of Cilliers et al, Herbstein & Van Winsen: The Civil
Practice of the High Courts of South Africa, Vol 1, 5th ed, pp 434-435.
66
decision to challenge the election application soon after the election had taken
place at the end of November 2009. To the extent that the appellants might have
been delayed somewhat because the first respondent summoned all responsible
officials to Windhoek to make sure that the election materials would not be
compromised during the inspection, the delay was necessary and not
unreasonable by any means. The Court a quo examined and rejected the
appellant's allegation that it had been an impossible task to obtain affidavits from
all party agents within the 30 day period in support of the complaint that there had
been a failure to post election results. The Court questioned how information
which had been difficult to obtain over a period of one month could all of a sudden
become available in the space of five days and why those affidavits, included in
the amplified papers could not have been included in the election application. It
analysed and demonstrated with reference to examples how substantially the
appellants’ cause of action metamorphosed between the 4th and 14th January
2010.
[97]
The Court a quo concluded as follows:
‘We are satisfied that the applicants do not make out a case that there are special
circumstances justifying ‘amplification’ or that they were in any way frustrated by
the first respondent in accessing election material. Therefore, assuming all else
was in the applicants’ favour and that success of amplification rested entirely on
the existence of special circumstances caused by the obstruction by the first
respondent, we are satisfied that the applicants failed on the papers to make out
such a case.’ (Emphasis added)
67
It consequently held that the respondents' objection against the filing of the
amplified papers was good; that those papers stood to be rejected in their entirety
and, therefore, struck them from the record.
[98]
The Court a quo's refusal to grant the appellants leave to supplement their
papers and to amend the notice of motion is part of the wider appeal before us.
Although the appellants no longer persist with most of the election complaints
enumerated in the supplementary papers, they are seeking the admission of those
papers in evidence not only in support of some of the remaining grounds in the
election application of 4 January (to be considered later in this judgment) but also
to press forward with the following three substantive grounds on which they claim
the election should be invalidated:
(a) The failure of presiding officers to comply with s 85(6) of the Act which
requires them to post a copy of the announced results at their respective
polling stations after the votes had been counted - in substantiation of which
the appellants are seeking to introduce more than 200 affidavits emanating
from 7 regions and affecting 41 constituencies;
(b)
material discrepancies in reconciling the number of ballot papers
received by presiding officers at certain polling stations in the Khomas
region as recorded on Elect-16 forms and the recorded number of ballot
papers used, not used and spoiled at those polling stations as reflected on
those forms - in substantiation of which the appellants seek to rely on a 37-
68
page affidavit dealing with the discrepancies and also detailing a number of
Elect 16 forms which were missing in respect of that region; and
(c) discrepancies between the number of ballot papers supplied to polling
stations as recorded on Elect 21-forms and the number of ballot papers
received by those polling stations as recorded on Elect 16- forms.
[99]
The appellants' principal attack on the finding of the Court a quo is that it
erred in the evidential approach which it adopted to decide the multitude of factual
disputes on the papers about the conduct of the parties during the discovery
process. They contend that, because the application to condone the filing of the
appellants' application outside the time-limit provided for by s 110(1) of the Act
was an interlocutory matter, the Court should have adopted an approach similar to
that applied in the case of interim interdicts. The approach proposed in Webster v
Mitchell91 (to assess whether an applicant has made out a prima facie case for an
interim interdict) has been formulated as follows:
‘The use of the phrase “prima facie established though open to some doubt”
indicates I think that more is required than merely to look at the allegations of the
applicant, but something short of a weighing up of the probabilities of conflicting
versions is required. The proper manner of approach I consider is to take the facts
as set out by the applicant, together with any facts set out by the respondent which
the applicant cannot dispute, and to consider whether, having regard to the
inherent probabilities, the applicant could on those facts obtain final relief at a trial.
The facts set up in contradiction by the respondent should then be considered. If
serious doubt is thrown on the case of the applicant he could not succeed in
91
1948 (1) SA 1186 (W) at 1189.
69
obtaining temporary relief, for his right, prima facie established, may only be open
92
to “some doubt”’.
Instead of this approach to the factual disputes, the appellants complain, the
Court a quo adopted and applied the Plascon-Evans93 approach. That approach
has conveniently been summarised in Republican Party of Namibia and Another v
Electoral Commission of Namibia and 7 Others94 as follows:
‘It is trite law that where conflicts of fact exist in motion proceedings and there has
been no resort to oral evidence, such conflicts of fact should be resolved on the
admitted facts and the facts deposed to by or on behalf of the respondent. The
facts set out in the respondents' papers are to be accepted unless the court
considers them to be so far-fetched or clearly untenable that the court can safely
reject them on the papers.’
[100] Even a cursory reading of these passages clearly demonstrates that the
approach proposed in Webster’s case is virtually an inversion of the PlasconEvans-approach: the one departs from an acceptance of the facts averred by the
applicant whereas the other requires that the facts set out by the respondent must
be accepted. This is so because of differences in the nature of the proceedings
and effect of the relief granted therein.
92
The approach was criticised and qualified as follows in Gool v The Minister of Justice and
Another, 1955 (2) SA 682 (C) at 688E: ‘With the greatest respect, I am of opinion that the criterion
prescribed in this statement for the first branch of the inquiry thus outlined is somewhat too
favourably expressed towards the applicant for an interdict. In my view the criterion on an
applicant's own averred or admitted facts is: should (not could) the applicant on those facts obtain
final relief at the trial.’
93
Cf Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A). See also:
Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235 E – G.
94
2010 (1) NR 73 (HC) at 109C-D; See also: Mostert v The Minister of Justice 2003 NR 11 (SC) at
21G - H
70
[101] We appreciate that Appellants’ application for leave to supplement their
papers may be interlocutory to the subject matter of the main dispute but, as to the
substance of the application, the Court must be satisfied that the explanation why
they did not put the facts or information before the Court at an earlier stage is
adequate; that it was not due to mala fides or culpable remissness on their part
and that, regard being had to all the circumstances, the affidavit should be
allowed. As Franklin J put it in Cohen, NO v Nel and Another95-
‘Where an affidavit is tendered in motion proceedings, both late and out of its
ordinary sequence, the party tendering it is seeking, not a right, but an indulgence
from the Court; he must both advance his explanation of why the affidavit is out of
time and satisfy the Court that, although his affidavit is late, it should, having
regard to all the circumstances, nevertheless be received. On any approach to the
problem, the adequacy or otherwise of the explanation for the late tendering of the
affidavit is always an important factor.’
[102] Save to the extent that the merits of the main proceedings may be a
relevant consideration in an application of this nature and require of the Court to
consider whether those proceedings enjoy reasonable prospects of success, the
determination of the substance of the application requires final adjudication of the
adequacy of the explanation and the other facts and circumstances relevant to the
introduction of further affidavits. Hence, in instances where factual disputes arise
on affidavit that are not resolved by reference to oral evidence, those disputes fall
to be determined on the approach adopted in the Plascon-Evans case in
applications of this nature. On this approach, the two authorities relied on by the
appellants are clearly distinguishable: In SOS Kinderhof International v Effie Lentin
95
1975 (3) SA 963 (W) at 966A-B
71
Architects96 the High Court dealt with an application for rescission of judgment and
in Hepute and Others v Minister of Mines and Energy 97 it dealt with a Rule 47
application for security. Hence, we agree with the Court a quo that the approach to
factual disputes applied therein does not find application to these proceedings.
[103] The second basis on which the appellants are seeking to assail the decision
of the Court a quo is that its conclusion was not justifiable if regard is had to the
following ‘overriding factors’: the fact that there was insufficient time for the
appellants to complete all their affidavits before expiry of the 30 day period; the
fact that new matter had been discovered subsequent to the institution of the
election application; the existence of an explanation which negatives mala fides or
culpable remissness on the part of the appellants pertaining to the cause why
these facts or information could not have been put before the Court at an earlier
stage; the fact that permission to amplify in essence deals with a question of
fairness to both sides and the fact that the respondent did not suffer any prejudice.
Counsel emphasized on their behalf that the respondents received the amplifying
papers simultaneously with the original papers in the election application and that,
as a consequence, neither they nor the public interest was prejudiced as a result.
They criticised the Court a quo for referring to the passage in Herbstein & Van
Winsen (quoted above) which permits the practice to file additional affidavits
before the other party has replied to them, yet failing to apply it in the
circumstances of this case.
96
97
1992 NR 390 (HC) at 399 B-C
2007 (1) NR 124 (HC), 130
72
[104] A reading of the judgment shows that the Court a quo considered most, if
not all of the factors which the appellants claim should have informed its decision.
We have already referred to some of them in summary. The Court concluded that
the appellants' inability to complete the affidavits before the expiry of the 30 day
period was mainly of their own making and not due to any obstructive behaviour
on the part of the first respondent. It quoted extensively from the affidavits and
concluded that the appellants embarked on a fishing expedition during which they
sought to trawl through too much election materials. The discovery of new matter
at a late stage was due to the fact that the appellants were ill-equipped to sift
through the election materials in good time. The Court noted that the appellants
had taken a decision to challenge the outcome of the election towards the
beginning of December 2009. During the month that followed they had more than
enough time to obtain affidavits of party agents and could have annexed them to
the original rather than to the supplementary application. The Court not only
quoted the extract from Herbstein & Van Winsen but, in its concluding remarks on
the admissibility of the amplifying papers, by implication referred to the approach
advanced therein when it decided the matter on the assumption that ‘all else was
in the applicants' favour and that success of amplification rested entirely on the
existence of special circumstances. It therefore assumed that the Court should not
reject additional affidavits solely upon the basis of an alleged rule of practice
against the filing of more than one set of affidavits; that the appellants' explanation
negatives mala fides or culpable remissness as the cause for the facts or
information not being put before the Court at an earlier stage and that the
respondents were not prejudiced.
73
[105] The Court a quo’s refusal to grant the appellants leave to supplement their
papers in the election application,
98
is premised on the assumption that the
requirement in s 110 of the Act that an election application ‘shall’ be presented
within 30 days after the day on which the result of the election in question has
been declared, is directory rather than mandatory. It approached the application
on the premise that it was within its competency to grant such an order. It
therefore had specific regard to factors which, according to the authorities, should
inform its decision in applications of that nature.
[106] The relief sought related to a matter falling within the inherent powers of the
High Court to regulate its own procedures. As such, the discretion which the Court
a quo exercised on consideration of the facts of this case, was judicial in nature99
and involved a value judgment100 on whether the appellants had given a proper
and satisfactory explanation for their failure to include the amplified papers as part
of the election application. Although a discretion of that nature is not unfettered,101
it is well settled that a Court of Appeal would be slow to interfere with it ‘unless a
clear case for interference is made out and (it) should not interfere where the only
ground for interference is that the Court of appeal might have an opinion different
from that of the Court a quo or have made a different value judgment’. 102 The
98
As prayed for in para. 3 of the election application (quoted above).
Not unlike the judicial discretion to condone non-compliance with the rules. Compare S v Yusuf,
supra at 53G.
100
Compare: Bookworks (Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council and
Another 1999 (4) SA 799 (W) where it was held (at 805G): 'It is difficult to discern a general
principle underlying all cases in which a discretion conferred on a court of first instance has been
categorised as narrow. What does seem clear is that, where the court of first instance is in a better
position than an appeal Court to decide a question which involves the exercise of a value
judgment, especially a question of procedure . . . an appeal Court will be reluctant to interfere.'
101
Ashipala v Nashilongo and Another 2011 (2) NR 740 (HC) at 748D-E para [36].
102
Per Marais J in B&W Industrial Technology (Pty) Ltd and Others v Baroutsos 2006 (5) SA 135
(W) at 139E-F para [14].
99
74
power to interfere on appeal in such instances is strictly circumscribed. 103 It is
considered a discretion in the ‘strict or narrow sense, ie a discretion which this
court as a court of appeal can interfere only if the court below exercised its
discretion capriciously or upon a wrong principle, or has not brought its unbiased
judgment to bear on the question, or has not acted for substantial reasons, or
materially misdirected itself.'104
[107] We have carefully considered the reasoning of the Court a quo on the
merits of the appellants’ application to supplement the election application to
ascertain whether it falls short of these criteria. Although we might have placed
more emphasis on the constitutional importance of the principle at stake and may
not necessarily have arrived at the same conclusion, it would not be proper for us
to interfere with the exercise of judicial discretion by the High Court simply
because we would have made a different value judgment on the facts. We are not
persuaded that the Court a quo exercised its discretion in a manner which would
justify interference on appeal when it refused the application to supplement the
election application.
103
Cf Western Cape Housing Development Board and Another v Parker and Another 2005 (1) SA
462 (C) at 466E-F para [5] and para [6] where the Court summarised the authorities referred to
therein as follows: ‘As stated by E M Grosskopf JA in Media Workers Association of South Africa
and Others v Press Corporation of South Africa Ltd ('Perskor') 1992 (4) SA 791 (A) at 800C - F, the
discretion referred to in Ex parte Neethling is a truly discretionary power characterised by the fact
that a number of courses are available to the repository of the power. As explained by the learned
Judge of Appeal, the essence of a discretion in this narrower sense is that if the repository of the
power follows any one of the available courses, he would be acting within his powers and his
exercise of power could not be set aside merely because another court would have preferred him
to have followed a different course among those available to him.’
104
Per Streicher ADP in Clipsal Australia (Pty) Ltd and Others v Gap Distributors and Others 2010
(2) SA 289 (SCA) at 298B-C para [19]. See also: Ex parte Neethling and Others 1951 (4) SA 331
(A) at 335E and Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 781H - 782A.
75
[108] In view of this conclusion, it is unnecessary for us to consider whether the
provisions of s 110 (1) of the Act are mandatory or directory and, if mandatory,
whether it would have been competent to supplement the election application
after the expiry of the 30 day period. We are indebted to counsel for the
submissions made in this regard but must emphasise that our silence on this
matter must not be understood as either a rejection or an endorsement of the
views expressed by the High Court on this point. It is also not necessary for us to
deal with the reasoning of the Court a quo that the appellants should have
brought an urgent application for amplification to allow the Court to deal upfront
with the issues raised therein. We note, however, that the procedural analogy
which the Court a quo sought to draw to the reasoning of this Court in the
previous election appeal (ie that the second respondent could have challenged
the validity of the registrar's decision in an urgent review application) is misplaced:
it loses sight of the fact that the registrar was not a party to the election
application in which the validity of her decision to receive the application outside
office hours was challenged – unlike in this case where all parties with an interest
in the relief prayed for have been cited.
H
Merits – The Election Application
[109] The Court a quo dealt extensively in a reasoned judgment with each and
every one of the specified complaints advanced by the appellants in the election
application and, in conclusion, dismissed the election application. Although the
appellants noted an appeal against the ‘whole of the judgment or order as well as
the cost orders’, it subsequently narrowed the scope of the appeal on the merits of
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the election application when their counsel recorded the following in their heads of
argument:
‘At the outset it is recorded that the appellants will no longer place reliance on the
initial complaints concerning the deficiency of the voters’ register. Accordingly
issues concerning an alleged high voter turnout, mistakes contained in the voters’
register, the admissibility of the affidavit evidence of the appellants’ witness, Mr
Götz, documents produced by him and related issues no longer arise in this
appeal. The same applies to issues previously raised concerning the manner in
which tendered votes were counted or otherwise dealt with. The issues which the
appellants will rely on, are those set out hereafter and principally concern the
following:
48.1 The absence of the entry of voter registration card numbers on 16 357 ballot
paper counterfoils;
48.2 That the results announced were of a verification process and not of the
polling station results;
48.3 The fact that in many instances elect 20 (b) Forms and elect 16 Forms do not
reconcile.’
The appellants' challenge to the validity of the National Assembly elections and its
results has thus been reduced to these 3 grounds. It is to them that we shall turn
next.
Voter Registration Card Numbers not entered on Ballot Paper Counterfoils
[110] ‘Ballot papers are bound in ballot paper books. In the interest of
transparency and accountability, the serial numbers of all the ballot papers in
those books are recorded in relation to each polling station on lists provided to
every political party taking part in the election (s 74(2)(b)); they are accounted for
by the presiding officers receiving them at such polling stations (s 85(3)); and
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verified by returning officers at counting stations (s 87(2)(a)).’105 Each ballot paper
in a ballot paper book is attached to a counterfoil. The counterfoil is a
complementary part of the ballot paper. Amongst the information of the ballot
paper printed on the counterfoil is the ballot paper number. To preserve the
secrecy of the vote, the ballot paper number is not reproduced on the detachable
part of the ballot paper which is given to a voter to cast his or her vote. Once a
ballot paper is detached from its counterfoil, it can no longer be linked to the
counterfoil on the basis of any information printed thereon.
[111] Section 82(9)(a)(i) of the Act requires of a presiding officer or polling officer
at a polling station to ‘enter the voter registration number of the voter in the ballot
paper book on the counterfoil of ballot paper which bears on the back thereof the
official mark.’ This requirement is part of the checks and balances of the electoral
process to enable verification that only registered voters have cast votes in the
election. The appellants' complaint is that 16,357 ballot paper counterfoils from
polling stations in 10 regions do not have voter registration numbers on them. This
flaw, they say, detracts from the system of checks and balances envisaged in the
Act in the interest of transparency and accountability and leaves the door wide
open for ballot box stuffing. As such, it is alleged, it constitutes a transgression of
the principles embodied in Part V of the Act. Given the number of ballots involved,
the appellants claim, it will also affect the result of the election.
105
Republican Party of Namibia and Another v Electoral Commission of Namibia and Seven
Others, supra at 101E-F.
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[112] The substance of the complaint is advanced in the founding affidavit of Mr
Haufiku. Given its importance to the discussion which will follow, it is necessary to
reproduce it verbatim.
‘In having regard to the counterfoils given to the applicants by the first respondent
it transpired that 16 357 of these did not contain the required voter registration
numbers which is peremptory in terms of section 82(9)(a) of the Act. I respectfully
point out that the reports verifying this are contained in the file which contains
approximately 500 pages and which shall be made available to the respondents
opposing this application as well as will be filed with the court. A copy of the report
verifying this figure and compiled by Mr Visser is annexed hereto and marked
“LH8”’.
In his confirmatory affidavit, Mr Visser confirms the correctness of the affidavit of
Mr Haufiku insofar as it relates to him and continues:
‘I further respectfully confirm that I have compiled the file which contains the
source documents referred to in the report next to the affidavit of Mr Haufiku. I am
advised that this file shall also be presented to the Registrar in due course as part
of the election application although it is not expressly attached as annexure to the
papers.’
[113] Both respondents took issue with these allegations. It is evident from their
responses that neither had sight of the 500 page-file containing the ‘source
documents’ which the appellants undertook to present to the Registrar. The first
respondent objected to the allegations and annexure ‘LH8’ as inadmissible
hearsay and points out that neither Mr Haufiku nor Mr Visser alleged that they had
personally investigated and inspected the counterfoils.
79
[114] It became clear when the appellants lodged their replying affidavits that the
allegations in the founding and confirmatory affidavits as well as the annexure
were based on hearsay. It was then disclosed by Mr Haufiku that he had tasked a
certain Mr Gurirab to copy some of the documents discovered for inspection. The
ballot paper counterfoils were still bound in ballot boxes and could not be properly
copied. He therefore required of Mr Gurirab ‘to have all the serial numbers of the
booklets containing these blank counterfoils written down and he thereupon
provided same to Mr Visser.’ In his affidavit Mr Gurirab said the following:
‘3. I further confirm that I was personally present at the inspection of the election
materials. I confirm that I personally oversaw the recordal of serial numbers of
counterfoils of empty ballot paper books where such counterfoil contained no entry
of a voter registration number. I confirm that they were at least 16,357 of such
instances.
4. I confirm that I oversaw the copying of the documentation obtained during the
said inspection process by the applicants. I also ensured that the information
obtained and recorded (including the information referred to in the previous
paragraph), and those copied were provided to Mr Johan Visser, which information
he bases his findings on and was incorporated into his reports, which he has
prepared as alluded to in the applicants' founding papers’.
[115] We have a number of concerns about the veracity and admissibility of the
allegations proffered in support of this complaint. The first is that both Mr Haufiku
and Mr Visser state unambiguously in the first paragraphs of their respective
affidavits that they are ‘personally acquainted with the facts set out hereinafter
unless the contents or context indicates otherwise or the contrary appears
therefrom and the same being both true and correct.’ With full knowledge that they
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did not have personal knowledge of the facts on which this complaint is based,
they failed to qualify their assertions accordingly.
[116] The second is that Mr Visser stated in his confirmatory affidavit that he had
compiled a file which contained the ‘source documents’ referred to in the reports
annexed to the affidavit of Mr Haufiku. Yet, we learn from the replying affidavit of
Mr Haufiku (lodged at least a month later) that the source documents (the
counterfoils) for this complaint (and on which annexure LH8 was based) could not
be properly copied as a result whereof the serial numbers had to be written down.
It follows, that the statement of Mr Visser that he had already compiled a file which
contained the source documents at the time the election application was brought
was clearly not true. This concern about his credibility also impacts on the
reliability of the report compiled (annexure ‘LH8’) - more so, because it later
appeared from the affidavit of Mr Gurirab that Mr Visser had not been in
possession of any source documents on which he could have based his report and
if one considers the extraordinary co-incidence – and statistical improbability - that
the sum of uncompleted counterfoils for at least nine polling station are expressed
in exact multiples of a hundred (ie 1300, 100, 500, 600, 100, 100, 200, 200, and
900).
[117] A most disconcerting and potentially misleading feature of Mr Visser’s
untruthful statement about the compilation of the file containing the source
documents, is the impression created that the file would be made available to the
Registrar of the High Court. The respondents were entitled to act on the
assumption that the appellants would follow through on that undertaking. There
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was thus no need for the first respondent to sift through the ballot paper
counterfoils of the constituencies mentioned in the report to verify the allegations
contained in ‘LH8’. At the end of the day, neither the file nor the source documents
were made available to substantiate this complaint - not even a list of the recorded
serial numbers of the uncompleted ballot paper counterfoils.
[118] We are satisfied that the allegations made in the founding papers about this
complaint and the ‘report’ of Mr Visser (annexure ‘LH8’) constitutes hearsay106 and
'hearsay, unless it is brought within one of the recognised exceptions, is not
evidence, ie legal evidence, at all' 107 . For these reasons, we agree that this
complaint must be rejected.
Results Announced were of the Verification Process and not Polling Station
Results
[119] The appellants contend that, on a proper interpretation of ss 85, 87, 89 and
92 of the Act, the results of votes counted must be announced by presiding
officers at the polling stations where the counts have taken place; that the
aggregate of the votes so announced at polling stations within a particular
constituency must determine the results for that constituency; that the ultimate
results of the election must also be compiled and based on the aggregate of votes
106
S v Ndhlovu 2002 (6) SA 305 (SCA) at 316A-B, para [13]. Long before the Constitution came
into effect the common law was alert to the dangers such an approach would have entailed. Not
only is hearsay evidence - that is, evidence of a statement by a person other than a witness which
is relied on to prove what the statement asserts - not subject to the reliability checks applied to firsthand testimony (which diminishes its substantive value), but its reception exposes the party
opposing its proof to the procedural unfairness of not being able to counter effectively inferences
that may be drawn from it.’
107
Per Schreiner JA in Vulcan Rubber Works (Pty) Ltd v South African Railways and Harbours
1958 (3) SA 285 (A) at 296F.
82
counted and announced at polling stations and that the results announced at
polling stations cannot be changed by the process of verification. To assess the
correctness of these contentions, we must briefly refer to the relevant provisions of
the Act.
[120] Section 85 of the Act deals with the closing of polls at polling stations, the
counting of votes, the sealing of ballot boxes and packets and the rendering of
ballot paper accounts. Subsections (1), (2), (3), (4) and (5) deal with the counting
of votes at the polling station under supervision of the presiding officer in the
presence of election agents. Subsection (6), which deals with the announcement
of the results once the count has been completed is perhaps most pertinent to the
appellants’ submission. It reads:
‘(6)
The presiding officer shall, when the counting of votes have been
completed, announce in the prescribed manner the result of such count and inform
the returning officer thereof and post a copy of the results at the polling station
concerned, but in the case of a mobile polling station the results of all the polling
stations for that mobile polling station shall be posted at the polling station used at
the closing of the poll where the votes are counted.’
Subsections (7), (8) and (9) require of the presiding officer at a polling station to
prepare a return of the result of the poll at that station and to deliver the return
together with sealed packets of the ballots counted and other election material to
the returning officer for the particular constituency.
[121] Section 87 of the Act provides for the verification of ballot paper accounts
by returning officers appointed for each constituency, including the returns
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furnished to them in terms of s 87(9) by the presiding officers at polling stations
within their respective constituencies. Section 87 (2) (a) and (b) provides as
follows regarding the duties of the returning officers:
‘(2) The returning officer shall(a)
open all the ballot boxes and sealed packets relating to a particular
polling station received from the presiding officer in terms of section 85 and
remove there from the counted, unused and spoilt ordinary ballot papers, the
counted results of the poll in the case of voting machines and the counted
tendered vote ballot papers and counted ballot papers in the authorisation
envelopes and verify the correctness of the return furnished by the presiding
officer concerned in terms of subsection (9) of that section;
(b)
after such verification(i)
prepare a report on the results thereof;
(ii)
allow any counting agent or candidate to make copy of the
report; and
(iii)
cause the report to be delivered or transmitted to the
Director.’
[122] Section 89 deals with the determination and announcement of results in
National Assembly elections. Most relevant are subsections (1) and (2) thereof:
‘(1) At an election for members of the National Assembly a returning officer shall,
when the counting of votes in accordance with section 85 has been completed,
and whether or not the return referred to in section 85(9) was found to be correct,
announce in the prescribed manner the result of such count and inform the
Director thereof.
(2) The Director shall in accordance with the results received by him or her from
returning officers in terms of subsection (1), determine in the manner provided in
Schedule 4 to the Namibian Constitution the number of candidates of each political
party to be declared duly elected as members of the National Assembly.’
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[123] An analysis of these sections shows that a presiding officer must announce
the results of the votes counted at that polling station in terms of s 85(6) and, in
terms of subsection (9) thereof, furnish a return of the result of the poll at that
polling station to the returning officer for the constituency within which that polling
station is situated. In the case of National Assembly elections, the returning officer
must announce the result of the count done by the presiding officer at the polling
station in terms of s 85 irrespective of whether the return of the result of the poll
furnished to him or her in terms of s 85(9) was found to be correct. The returning
officer for a constituency must, in turn, furnish the Director with the results
announced in respect of the polling stations within that constituency (ie the results
of the count at the respective polling stations announced in terms of s 85(6) of the
Act). The Director must transmit the results received by him to the Commission as
is required by s 89(5) and the Commission must cause the publication of any
announcement made and transmitted to it in terms of s 85(6) – ie the results
announced at polling stations by presiding officers.
[124] We are therefore in agreement with the proposition advanced on behalf of
the appellants. This was also the view taken by the High Court and, from what we
understand, it is not disputed by counsel for the respondents. Mr Tötemeyer drew
attention to a paragraph in the first respondent's answering affidavit which, he
contends, must be understood that the first respondent had a different
understanding of the Act and that he maintained that the results which had to be
announced were those determined in the course of the verification process. The
paragraph reads as follows:
85
‘”63.1 It is correct that the results announced by the returning officer is the collation
of the results announced by the presiding officers of the various polling stations, of
the constituencies for which the returning officer is appointed. However it is
incorrect to state that the results announced are not of any verification process.
The first respondent has two Elect Forms for announcement of results by the
presiding officer and by the returning officer Elect 20 (b) is an announcement of
the results by the presiding officer. This Form is made available to the returning
officer for purposes of verification. Elect 20 (b) is the Form used by the presiding
officer to announce the results at the polling station, and to the returning officer.
Elect 20 is the Form used by a returning officer to announce the results after
verifying the results of all the polling stations of the constituency and consolidating
such results into this single form, Elect 20. Thus the results announced by the
presiding officer are the same results (subject to verification), consolidated into
Elect 20, announced by the returning officer. The applicants’ interpretation of the
relevant provisions of the Act is with respect absurd. I must also point out that at
every stage of the electoral process, at the polling stations presided over by
presiding officers and at the verification center presided over by the returning
officer, the applicants were either represented or entitled to be represented by
party agents. For each constituency, one polling station was converted or was
used as verification center where the returning officer executed his functions as
per the provisions of section 87 of the Act. The verification centers were not secret
as was made out in, various newspaper reports. Party agents had access thereto.
The applicants’ polling agents at both polling stations and verification centres,
were largely unprepared and in some cases their polling agents left polling stations
and verification before counting and verification was respectively completed.’
[125] Counsel for the appellants submits that the use of the double negative in
the second sentence of the quoted response by the first respondent must be
understood that the results announced were those of the verification process.
Moreover, the qualifications suggesting that the results announced are subject to
verification, must also be understood to mean that, should the results change as a
consequence of the verification process, it is the changed results which would then
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be announced. This inference, he contends is supported by the first respondent's
allegation that the appellants' interpretation of the provisions of the Act is ‘absurd’.
That, he says clearly implies that the appellants' interpretation of the Act (ie that it
is the polling station results that form the basis of the ultimate result announced on
a national level) is wrong. Based on this interpretation, he contends that the first
respondent's misunderstanding of the Act had a direct bearing on the manner in
which the election was conducted, how the votes were processed and which
results were ultimately used to determine the outcome of the election.
[126] It seems to us that the interpretation which counsel for the appellants is
urging upon us may be somewhat uncharitable to the first respondent. The results
of National Assembly elections can be announced at three levels: the results of
counts at individual polling stations in terms of s 85(6); the aggregate of the results
of all the polling stations within a constituency as the election results for that
constituency in terms of s 89(1) and, finally, the national aggregate of the results of
all the polling stations as the national result of the election in terms of s 89(2). It is
therefore to be expected that the returning officer will collect and collate the results
of the various polling stations within the constituency as part of the verification
process to announce the election results for that constituency as required by s
89(1). Moreover, s 85(6) requires of the presiding officer to inform the returning
officer of the results announced at the polling station and it is only to be expected
that the returning officer will verify it against the return of the result of the poll at
that polling station when he receives it together with the other election material. If,
for instance, it is established during the verification process that, due to an
erroneous entry on the return submitted by a presiding officer, the result of the
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count differs from that which was actually announced at the polling station and
communicated by the presiding officer to the returning officer in terms of s 85(6),
the returning officer will be mindful not to use the erroneous entry for purposes of
the constituency's collated result. ‘Verification’ in this sense simply means to
establish the correctness of a fact. It does not perforce imply that, if the fact cannot
be verified, the verification process requires that it must be corrected.
[127] The first sentence of the quoted passage is a strong indication that this is
also how the first respondent understood the process. He makes it clear that the
results announced by a returning officer are a collation of the results announced
by the presiding officers of the various polling stations falling within the
constituency for which the returning officer has been appointed. He then
continues: ‘However, it is incorrect to state that the results announced are not of
any verification process.’ If, as we have pointed out in the previous paragraph, the
collation of results for purposes of an announcement on a constituency level is
regarded as part of the verification process, then the sentence - however
inelegantly it might have been worded - makes perfect sense. The same applies to
the qualification: ‘subject to verification’ used elsewhere in the text. It is not clear
precisely which part of the interpretation which the appellants placed on the Act
was considered by the first respondent to be ‘absurd’. We do not know whether
the deponent does not perhaps consider as ‘absurd’ an interpretation which
excludes the collation of results as part of the verification process on a
constituency level.
88
[128] What is more, notwithstanding the fact that the appellants had numerous
party agents in the field, they could not refer to a single incident where the results
announced by a presiding officer at a polling station differed from those which
were used for purposes of an announcement on constituency or national level.
This, it seems, is also what the first respondent in effect alleges and what the
Court a quo found to be the case.
[129] We are therefore of the view that the interpretation which the appellants are
seeking the Court to attach to the quoted passage from the first respondent's
statement is not the only reasonable interpretation and does not necessarily imply
that the result announced in the National Assembly election was not the aggregate
of the results announced at the various polling stations but different results created
by the process of verification instead. In the absence of any evidence that a result
different to any of those announced at polling stations were used, this complaint
must fail.
Reconciliation between ‘Elect 20(b)’ and ‘Elect 16’ Forms
[130] In order to manage and administer the electoral process, the first
respondent designed various electoral forms designated by the abbreviation ‘Elect’
and followed by a number, identifying the purpose for which that form has been
designed. These forms can be classified into two distinct categories, i.e. those
designed for administering the electoral process and those designed as official
returns to be used, as required by the Act, to communicate election results to
returning officers, the Director of Elections and the Chairman of the first
respondent. The forms have been designed to complement one another and to
89
create a transparent paper trail as part of the wider range of the checks and
balances built into the election process. The two forms referred to in this complaint
may both be classified as ‘election returns’ as contemplated under the Act.
[131] The Elect 16 form is titled ‘Ballot Paper Account by the Presiding Officer’. It
is divided into three parts: Part A requires of presiding officers to enter the number
of ballot papers (and their serial numbers) received prior to or during the election
at their respective fixed or mobile polling stations. Part B is intended to be an
account of the ballot papers done after the voting process and requires of
presiding officers to enter information about the number of ballot papers in the
ballot box, the number of spoiled ballot papers (which have not been placed in the
ballot box) and the number of unused ballot papers. This information is required in
terms of s 85(2) of the Act. The total number of ballot papers accounted for under
Part B must be reconciled with – and should be identical to - the total number of
ballot papers received under Part A. We note that the number of voters who cast
their votes at a particular polling station, may also be ascertained with reference to
the number of ‘ballot papers in the ballot box’ as accounted for in Part B. Part C
allows the presiding officers to record the number of voters who had voted with
valid voter registration cards but whose names did not appear on the voters'
register.
[132] The Elect 20(b) form is titled ‘Announcement of Results’. It must be
completed by presiding officers after they have counted the votes at their
respective mobile or fixed polling stations. It is drafted in the form of a declaration
to announce the results of the votes counted at the polling station in terms of s 85
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of the Act. It requires of Presiding Officers to enter, among other things, the
following information for purposes of the announcement: the number of ballot
papers rejected; the number of votes counted and the number of votes counted
which have been allocated to each of the political parties that participated in the
National Assembly election.
[133] It must be immediately evident that the sum total of ballot papers rejected
and votes counted at a particular polling station as recorded by a presiding officer
on the Elect 20(b) form should be the same as the number of ‘ballot papers in the
ballot box’ recorded in respect of that polling station in Part B of the Elect 16 form.
(For the sake of brevity we shall refer to the sum of ballot papers rejected and
votes counted as recorded in the Elect 20(b) forms simply as ‘votes counted’ in the
discussion of this complaint). The appellants' complaint is that these numbers do
not reconcile at 33 polling stations. The appellants detailed the discrepancies
alleged in respect of each polling station in a report prepared by Mr Visser. In
summary, the report shows that at 10 of the polling stations a total number of 2334
more votes were counted (according to the Elect 20(b) forms) than the number of
ballots which should have been in the ballot boxes (according to the Elect 16
forms). In respect of the other 23 polling stations the converse applies: the number
of ballots which should have been in the ballot boxes (according to the Elect 16
forms) exceeded the number of votes counted from those ballot boxes (according
to the Elect 20(b) forms) with 5613.
[134] The first respondent points to some errors in the report which, even if
accepted, would not have a substantial effect on the discrepancies asserted. It
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was constrained to acknowledge, through the answering affidavit deposed to by its
Director of Elections, that ‘there were mistakes here and there’ and that ‘the
elections were not without flaws’ but maintained that the results of the election
were reliable ‘except for the few discrepancies’. Elsewhere in the answering
affidavit, the first respondent also acknowledges human errors and ‘administrative
hiccups’ but he strongly denies that they constitute evidence that the elections
have been ‘rigged’ or that ballot boxes have been ‘stuffed’. It proceeds to detail at
length the security measures in place and refers to the transparent and
accountable manner in which the election has been conducted. We shall return
later to consider some of these aspects in greater detail.
[135] The Court a quo rejected this complaint on a premise not advanced by any
of the parties. Mr Visser’s report, the Court held, refers to ‘Elect 20’ forms. These
forms are used by returning officers to announce the results in respect of the
election for members of the National Assembly per constituency (not per polling
station, as Elect 20(b) does). As a result, the Court reasoned, it was not supported
by the allegations in the appellants’ affidavits and could not be used for
comparative purposes. The Court, therefore, rejected the complaint.
[136] It is clear, as counsel for the appellants argued in this Court that the
reference to ‘Elect 20’ in Mr Visser’s report should have been a reference to ‘Elect
20(b)’. It was at all relevant times read and understood by all the litigants in that
manner. In argument before this Court counsel for the respondents sought to
defend the approach which the Court a quo had taken to this complaint - even
though it is not one which they have proposed in the proceedings a quo. We must
92
immediately say that we do not propose to adopt the same approach. The
underlying principles and values at stake in applications of this nature, as we have
pointed out at the outset of this judgment, are too important to reject an election
complaint, properly understood and fully addressed by all the litigants, on what
might have been a typographical error or an innocent misstatement. It has always
been the approach of this Court to look at substance rather than form, more so,
when the matter is of great importance and the public’s interest is at stake. We
shall therefore proceed to decide the complaint on the premise that Mr Visser
intended to refer to the Elect 20(b) forms.
[137] The view taken in the first respondent's answering affidavit to the particulars
contained in the report is not that it lacked the source documents relied on for its
compilation or that it was based on hearsay. Although it reserved its rights to apply
that it be struck out, the first respondent nevertheless dealt with the information
contained in the report head on. It alleged that the report was ‘riddled with
mistakes as follows . . .’ but then proceeded only to refer to 3 errors. These errors,
even if corrected in the manner proposed by the first respondent will reduce the
discrepancies earlier referred to from 2334 to 1892 and the other from 5613 to
5502. On the Plascon-Evans approach to factual disputes, discussed in greater
detail elsewhere in this judgment, we must accept that the appellants have at least
proven the discrepancies to the extent that they have not been contested by the
first respondent.
[138] On that basis we must accept that the ballot boxes of 10 polling stations
had 1892 more ballot papers in them than the number that should have been there
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according to the Elect 16 forms completed for those polling stations and that 23
polling stations had 5552 ballot papers less in them than the number that should
have been there according to the Elect 16 forms for those polling stations. Does
this constitute evidence of electoral fraud in the National Assembly election or
should it be considered as evidence of administrative ineptitude on the part of the
presiding officers concerned?
[139] Other than generalised allegations raising the possibility of ballot box
stuffing in respect of some complaints, we do not find any allegation of that nature
specifically linked to the discrepancies under this complaint. To the extent that it is
required, however, we must briefly consider the first respondent's denial that
electoral fraud of that nature could have been committed, given the unprecedented
nature of control and security measures which had been in place during the
election. Its Director of Elections also claims that the process was completely
transparent. He states that every fixed polling station was staffed by eight polling
officials (each mobile polling station had six polling officials) and that political party
agents observed the elections at each and every polling station. The political party
agents were provided with seals and were entitled to affix their own seals to the
ballot boxes. The presiding officer had his or her own seal with a unique number
which was used to seal the ballot boxes in the presence of the party agents. Seals
were only removed from ballot boxes by the presiding officer in the presence of the
other staff and the party agents. The ballot boxes and ballot papers were at all
times in the custody of, or under guard by, members of the Namibian police. The
effect of the evidence is that, due to the security measures in place, it was
impossible to remove ballot papers from boxes or to ‘stuff’ them.
94
[140] Insofar as these allegations are at odds with the appellants' general
allegations of electoral fraud and ballot box stuffing, the disputes of fact evident
on the papers must be resolved with regard to the Plascon-Evans rule. In the
judgment handed down by this Court in the previous appeal it was expressly
foreseen that the appellants might wish to reconsider their position and that they
might seek for those disputes be referred to oral evidence for determination. That
was one of the express reasons why this Court remitted the matter for further
adjudication to the High Court. The remarks of this Court notwithstanding, the
appellants elected not to adopt that course. The inescapable inference to be
drawn from their attitude, is that they abided by the determination of the factual
disputes with reference to the Plascon-Evans approach. It is on this basis that we
must evaluate the evidence.
[141] On the evidence presented by the first respondent we therefore conclude
that only ballots cast by voters were deposited in the ballot boxes and that, once
deposited, none of those ballots was removed before they were counted. The
difficulty to reconcile the contents of the returns in question, it follows, resulted
from administrative errors in the compilation of those returns and not from any
fraudulent conduct or illegal and corrupt practices. We shall assume, without
deciding, in favour of the appellants that the discrepancies are ‘mistakes’
contemplated in s 95 of the Act, which reads:
‘No election shall be set aside by the court by reason of any mistake or noncompliance with the provisions of this Part, if it appears to that court that the
election in question was conducted in accordance with the principles laid down
95
therein and that such mistake or non-compliance did not affect the result of that
election.’
[142] Counsel for the appellants drew our attention to the analysis of a similar
provision in the matter of Putter v Tighy, 108 where the Court held (at 408) as
follows:
‘Reverting to our sec. 91, in my opinion, its true interpretation is that which I have
indicated above, namely that where there has been a mistake, or even a noncompliance with Chapter III amounting to an infringement of a principle laid down
by that chapter, the Court shall not set aside the election if it is satisfied (1) that the
election as a whole was substantially conducted in accordance with the principles
laid down in Chapter III and (2) that such non-compliance did not affect the result
of the election. On this view of sec. 91 the question whether the mistake or noncompliance is sufficient to prevent the curative provision from operating becomes a
matter of degree’.
The Court continued (at 410):
‘Passing to the onus of proof under sec. 91, it seems to me clear that, once it has
been shown by the petitioner that a non-compliance with the provisions of Chapter
III has occurred, the onus lies on the respondent to prove that both conditions
mentioned in the curative section have been satisfied.’
Similar views were expressed in Scott & Others v Hanekom & Others109 and
approved in Republican Party of Namibia v Electoral Commission of
Namibia.110
108
109
110
1949 (2) SA 400 (A)
1980 (1) SA 1182 (C) at 1198 E- H
Supra at 106J – 107E.
96
[143] The administrative mistakes made by the presiding officers who completed
the returns in question undoubtedly bears on the checks and balances provided
for in Part V of the Act. However, when considered against the total number of
polling stations and ballots cast in the National Assembly election, those errors,
preventable as they were, are not so serious that they detracted from or
diminished that or any other of the principles in accordance with which the
National Assembly election had to be conducted under Part V of the Act. We are
also satisfied - and this follows from our earlier findings of fact - that the first
respondent has proven on a balance of probabilities that the result of the National
Assembly election was not affected by the mistakes.
I
Costs
[144] Administrative mistakes of this nature in the conduct of elections are a
matter which also received attention from the Court a quo. Court noted as follows:
‘It will be unfortunate if the people responsible for the lapses are allowed to
participate in the conduct of elections and to unnecessarily put the country through
the same controversy and suspicion that had characterised the aftermath of the
2009 (National Assembly) election. It will be a sad day indeed for this fledgling
democracy if, after this verdict, those who manage elections think that they have
been completely vindicated, and therefore to continue with business as usual.’
We have noted the other reasons and considerations why that Court found it
necessary to make a special order of costs and, although we do not find it
necessary to repeat them for purposes of this judgment, we nevertheless endorse
those views. Those considerations apply with equal force to this case. The
responsibilities cast by the Act on the Commission are onerous but they must be
97
executed with impartiality and efficiency. Hence, we intend to make a similar order
of costs.
[145] In the result, the following orders are made:
1. The applicants’ failure to timeously deliver and file their heads of argument in
respect of the application for condonation and reinstatement is condoned.
2. The first and second respondents’ in limine application that the appellants'
founding affidavit in the application for condonation and reinstatement of the
appeal be struck out on account of lack of authority, is dismissed with costs,
such costs to be paid by the first and second respondents jointly and severally,
the one paying the other to be absolved.
3. The first respondent’s in limine application that the applicants' replying affidavit in
the application for condonation and reinstatement of the appeal be struck out on
the ground that it was not filed within a reasonable time, is dismissed with costs.
4. The first respondent’s application to strike out certain parts of the applicants'
papers in the application for condonation and reinstatement of the appeal on
the ground that they contain inadmissible hearsay evidence, is dismissed with
costs.
5. The applicants’ non-compliance with –
5.1
rule 5(4)(a) pertaining to the period within which they had to file their
respective powers of attorney in the appeal and
5.2
rule 5(5)(b) pertaining to the period within which they had to file the
record of appeal
is condoned and the applicants' appeal is reinstated.
98
6. The appellants’ non-compliance with the period within which they had to file
their heads of argument on the merits of the appeal is condoned.
7. The appellants in the applications for condonation referred to in paragraphs 1,
5 and 6 are ordered, jointly and severally, the one paying the other to be
absolved, to pay the costs of the applications excluding the costs occasioned
by the respondents' opposition to the applications, which, in respect of the
application referred to in paragraph 1 shall be paid by the second respondent
and, in respect of the applications referred to in paragraphs 5 and 6, shall be
paid by the first and second respondents jointly and severally, the one paying
the other to be absolved.
8. The appeal is dismissed.
9. The appellants are ordered to pay the costs of the second respondent in the
appeal.
10. No order of costs is made as between the appellants and the first respondent
in the appeal.
11. All the cost orders shall include the costs consequent upon the employment of
one instructing and two instructed counsel.
________________________
SHIVUTE CJ
________________________
MARITZ JA
99
________________________
MAINGA JA
________________________
CHOMBA AJA
________________________
MTAMBANENGWE AJA
100
APPEARANCES:
1st, 2nd, 3rd,4th, 5th,6th, 7th and 9th
R Tötemeyer
APPELLANTS:
(with him J A N Strydom
Instructed by Theunissen , Louw & Part
1st RESPONDENT:
I V Maleka SC
(with him S Namandje)
Instructed by Government Attorney
2nd RESPONDENT:
I A M Semenya SC
(with him S Akweenda and E N
Shikongo
Instructed by Shikongo Law Chambers