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CASE No.: A 01/2010

IN THE HIGH COURT OF NAMIBIA

In the matter between:

RALLY FOR DEMOCRACY AND PROGRESS 1^st APPLICANT

UNITED DEMOCRATIC FRONT OF NAMIBIA 2^nd APPLICANT

DEMOCRATIC TURNHALLE ALLIANCE 3^rd APPLICANT

CONGRESS OF DEMOCRATS 4^th APPLICANT

REPUBLICAN PARTY OF NAMIBIA 5^th APPLICANT

ALL PEOPLES PARTY 6^th APPLICANT

NATIONAL UNITY DEMOCRATIC ORGANISATION 7^th APPLICANT

NAMIBIA DEMOCRATIC MOVEMENT FOR CHANGE 8^th APPLICANT

DEMOCRATIC PARTY OF NAMIBIA 9^th APPLICANT

HIDIPO LIVIUS HAMUTENYA 10^th APPLICANT

JUSTUS GAROEB 11^th APPLICANT

KATUUTIRE KAURA 12^th APPLICANT

BENJAMIN ULENGA 13^th APPLICANT

HENRY FERDINAND MUDGE 14^th APPLICANT

IGNATIUS NKOTONGO SHIXWAMENI 15^th APPLICANT

KUAIMA RIRUAKO 16^th APPLICANT

FRANS MIKUB GOAGOSEB 17^th APPLICANT

DAVID SALOMON ISAACS 18^th APPLICANT

and

ELECTORAL COMMISSION OF NAMIBIA 1^st RESPONDENT

SWAPO PARTY OF NAMIBIA 2^nd RESPONDENT

MONITOR AKSIEGROEP 3^rd RESPONDENT

SOUTHWEST AFRICA NATIONAL UNION 4^th RESPONDENT

NATIONAL DEMOCRACY PARTY 5^th RESPONDENT

COMMUNIST PARTY 6^th RESPONDENT

HIFIKEPUNYE POHAMBA 7^th RESPONDENT

USUTUAIJE MAAMBERUA 8^th RESPONDENT

ATTIE BEUKES 9^th RESPONDENT

CORAM: DAMASEB JP et PARKER J

Heard on: 1^st March 2010

Delivered on: 4^th March 2010

JUDGMENT:

PARKER J: [1] In this election application brought by the applicants, represented by Mr Tötemeyer SC assisted by Mr Strydom and Mr Van Vuuren, on notice of motion presented to Court on 4 January 2010, purportedly in terms of Part VII of the Electoral Act, 1992 (Act No. 24 of 1992) (‘s. 109 application’), the applicants have moved the Court for an order in the following terms:

(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 held on 27 and 28 November 2009 made on 4

December 2009 and published in Government Notice No. 4397 dated 18

December 2009 null and void and of no legal force and effect.

(2.2) Ordering the first respondent to recount in Windhoek the votes cast 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 exercise their rights in regard to such counting as provided for in the said Act.

(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 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.

(4) That insofar as it may be necessary non-compliance with the rules of Court regarding service of this application on 5^th respondent be condoned.

(5) Ordering the first respondent to pay the costs of this application including the costs consequent upon the employment of one instructing and two instructed counsel (and ordering any other respondents who may oppose this application to pay such costs together with the first respondent jointly and severally, the one paying the other to be absolved).

(6) Further and/or alternative relief.

On 14 January 2010, the applicants filed of record an ‘’amplified notice of motion’’ in the following terms:

(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 setting aside the said election.

(2) Alternatively to prayer 1 above-

(2.1) An order declaring the announcement of the election results for the National Assembly election held on 27 and 28 November 2009 made on 4 December 2009 and published in the Government Notice No 4397 dated 18 December 2009 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 ninth respondents to exercise their rights in regard to such counting as provided for in the said Act.

(3) An order declaring the election for the President of Namibia held on 27 and 28 November 2009 null and void and of no legal force and effect and setting aside the said election.

(4) Alternatively to prayer 3 above -

(4.1) An order declaring the announcement of the election results for the Presidential election held on 27 and 28 November 2009 made on 4 December 2009 and published in the Government Notice No 4397 dated 18 December 2009 null and void and of no legal force and effect.

(4.2) 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 ninth respondents to exercise their rights in regard to such counting as provided for in the said Act.

(5) Granting the applicants leave to supplement their papers (as per the affidavits and documents attached hereto) and to amend their notice of motion (as per this amplified notice of motion) on or before the expiry of the 10 day period contemplated in section 113 of Act 24 of 1992, such 10 day period having commenced on the date when the election application was presented to the Registrar of the High Court as contemplated in section 110 of the said Act, and to – ex post facto – accept the affidavits and documents attached hereto as well as this amplified notice of motion to form part of the applicants’ founding papers of record in this matter.

(6) Only insofar as it may be necessary, granting the applicants leave – ex post facto – to have joined the 10^th to 18^th applicants and 7^th to 9^th respondents as parties to these proceedings and by virtue of this amplified notice of motion.

(7) That insofar as it may be necessary, condoning the applicants’ non-compliance with the rules regarding service in respect of the 5^th respondent and granting the applicants leave to have served these papers by way of electronic mail on the 5^th respondent at the following e-mail address: ndppartv@yahoo.com or in such other manner as may be necessary.

(8) Ordering the first respondent to pay the costs of this application including the costs consequent to the employment of two instructed counsel and one instructing counsel (and ordering any other respondent who may oppose this application to pay such costs together with the first respondent jointly and severally, the one paying the other to be absolved).

(9) Further or alternative relief as the Court may deem fit.’

[2] The 1^st respondent, represented by Mr Maleka SC, assisted by Mr Hinda, Mr Narib and Mr Namandje and the 2^nd respondent, represented by Mr Simenya SC, assisted by Dr Akweenda and Mr Shikongo have moved to reject the application. It seems to us clear that no order is sought against the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th respondents although the 7^th respondent will be directly affected by any adverse order against the first respondent on the merits. As I see it, those respondents have been cited as parties to the application because they have an interest in the outcome of the application. Howsoever that may be, the 2^nd respondent has filed an answering affidavit which in the main iterates some of the preliminary objections raised by the 1^st respondent in its answering affidavit deposed to by the 1^st respondent’s Director. On that score, the 2^nd respondent makes common cause with the 1^st respondent as respects those preliminary objections. For the sake of convenience, therefore, where the context requires, any reference to ‘respondents’ hereinafter means the 1^st and 2^nd respondents.

[3] I find it necessary to set out in brief now the relevant facts that are either not in dispute or are indisputable. The last Presidential election and the National Assembly election – two distinct elections, as the name of each election indicates – took place on two consecutive dates, namely, 27 and 28 November 2009. The official results of the two elections were announced on 4 December 2009; in the case of the Presidential election in terms of s. 5 of the Electoral Amendment Act, 1999 (Act No. 19 of 1999), and in the case of the National Assembly election in terms of s. 6 of that Act. Thereafter, the applicants brought application in terms of s. 93 of the Electoral Act, 1992 (Act No. 24 of 1992), as amended, (‘the s. 93 application’) in which this Court granted an order on 24 December 2009 whereby the applicants were granted permission to inspect or produce certain election materials which the applicants required for the purpose of an election application in terms of s. 109 of the Electoral Act, 1992 (‘s. 109 application’). The present proceedings are in respect of an s.109 application.

[4] Counsel on both sides have referred plenteous authorities to us: we are grateful for their industry. I have not overlooked those authorities. I do not think I should adorn this judgment with copious extracts from all the authorities that are of real assistance on the points under consideration.

[5] Although by agreement the parties argued the entire application, the respondents have raised several preliminary points in the form of notices to strike and in limine objections. The points in limine, the respondents maintain are, individually or collectively, dispositive of the application without the Court having to consider the merits of the application. On the papers the respondents raised three crucial points in limine which they maintain render the applicants’ application a nullity. The first relates to improper or non-service on some of the respondents. The second relates to the presentation to Court of the election application outside the statutorily prescribed deadline; and the third, a variant of the second, relates to the manner in which the applicants went about challenging the outcome of the presidential election. I have no good reason to decline the respondents’ invitation to first deal with those of their objections which are potentially dispositive of the election application without us having to consider the merits of the matter.

[6] Mr Tötemeyer for the applicants has submitted that to the extent that there are factual disputes the version of the applicants must prevail when I am considering the points in limine and the application to strike out (they being in the nature of interlocutory disputes). He relies for the proposition on Webster v Mitchell 1948 (1) SA 1186 (W), 1189, SOS Kinderhof International v Effie Lentin Architects 1992 NR 390 (HC), 399B-C, and Hepute and others v Minister of Mines and Energy 2007(1) NR 124 (HC), 130A-I. Counsel for the 1^st and 2^nd respondents made no specific reference in rebuttal of this submission. Mr Totemeyer’s submission on this score is not supported by authority, as is more fully set out in the supporting reasons under the hand of the Judge-President.

[7] In the view that I take of the matter in respect of the points in limine, I find it unnecessary to first deal with the notices to strike certain matter from the applicants’ papers before I deal with the crucial points in limine.

Defective service

[8] The first respondent complains that there was defective service of the application. The first point in limine therefore concerns service of the application on some respondents; In the case of the 4^th and the 8^th respondents, improper service, and in the case of the 3^rd and 5^th respondents non-service,

[9] In an s. 109 application service of the application is regulated by s. 113 of the Electoral Act, read with rule 4 of the Rules of Court. It is common cause that in the case of the 4^th and 8^th respondents, service was effected on a Mr Christiaan at the offices of the 6^th respondent, and Mr Christiaan states in an affidavit that he is on the 4^th respondent’s Party List for the National Assembly elections, and he had been duly authorized by the 4^th respondent to accept service of process in this matter on behalf of both the 4^th and 8^th respondents. The affidavit evidence has not been challenged by these respondents. There is evidence on the papers that the 4^th and 8^th respondents received the papers and they do not oppose the application; and so, as Mr Tötemeyer submitted, no prejudice has been occasioned to those respondents. The same submission was made in relation to the 5^th respondent. As respects the 5^th respondent, service was carried out on 22 January 2010; that is, outside the time limit of 14 January 2010. Mr Lukato, a representative of the 5^th respondent, has stated that he had not been prejudiced by the late service and improper service (via email facilities) of process on him, and that he was not opposing the application. The respondents allege that no service was carried out on the 3^rd respondent. That is not correct, as the respondents contended. I am satisfied on the papers that proper service was carried out by the deputy sheriff on the 3^rd respondent. In the affidavit of return of service, the deputy sheriff states that she served the process on the chairperson of the 3^rd respondent at a specified address in Olympia, Windhoek.

[10] As a result of the aforementioned defective service of process, the respondents submit that ‘this application cannot and will not proceed without proper service on those respondents’. As I have demonstrated above this submission affects only the 4^th, 5^th and 8^th respondents. I do not think the respondents’ submission has merit. The applicants do not, as I have intimated previously, seek any order from the 4^th, 5^th and 8^th respondents. In their condonation application filed on 24 February 2010, the applicants have, in any case, applied to the Court to condone the applicants’ non-compliance with service of the applicants’ application on the 4^th, 5^th and 8^th respondents. Indeed, it is our view that this is the kind of defect that this Court, on the authority of Re Pritchard [1963] 1 All ER 873 (referred to by Mfalila J in Pio v Smith 1986 (3) 145 (ZH)), infra, has ample jurisdiction to condone. Additionally, in a matter like the present, when there has not been proper service on a particular respondent among a multiplicity of respondents, the Court, in a proper case, could order that any order made by it would not bind such respondent. I do not think such infraction of the Rules of Court is capable of rendering the application nugatory. I am fortified in this conclusion by the first respondent’s own admission in the affidavit of its Director that such non-service or improper service ‘does not ... primarily affect the first respondent’. Accordingly, I reject the respondents’ first point in limine.

Lodgement of the election application

[11] I pass on to consider the respondents’ second point in limine. It concerns the lodgement of the applicants’ election application.

[12] Election applications are governed by Part VII of the Electoral Act. For our present purposes, it is important to signalize the irrefragable statutory stipulation that an s. 109 application must, without any allowance of discretion whatsoever, begin with the ‘presentation of election application’ in accordance with s. 110 of the Electoral Act, 1992. Section 110 provides:

(1) An election application shall be represented (it is clear by meaning and context, the last word should read ‘presented’) within 30 days after the day on which the result of the election in question has been declared as provided in this Act.

(2) Presentation of the application shall be made by lodging it with the registrar of the court.

(3) (a) At the time of the presentation of the application or within five

days thereafter, security for the payment of all costs, charges and expenses

that may become payable by the applicant –

1. to any person which may be summoned as a witness on his or her behalf; and

(ii) to the person, or, in the case of an election on party lists, the political party whose election or return is complained of (hereinafter referred to as the respondent)

shall be furnished by or on behalf of the applicant.

(b) The security shall be for an amount determined by the registrar of the court and shall be furnished in money or by recognizance to the satisfaction of the said registrar.

(c) If the applicant complies with the provisions of paragraph (b), the application shall be deemed to be at issue, or, if there is no such compliance, no further proceedings shall be had on the application. (Emphasis added)

[13] Section 110 (1) provides that an s. 109 election application must be presented within 30 days after the date on which the results of the election in question are announced; and additionally, the statutorily prescribed mode of presentation of an election application in terms of s. 110 of the Electoral Act, 1992, is by the lodgement of the application with the Registrar of the Court.

[14] In casu, on the papers, it is not in dispute that 4 January 2010 was the 30^th day; that is, the last day the applicants had to lodge their application with the Registrar. And if s. 110 (1) is read with Rule 3 of the Rules of Court, as it should, seeing that Part VII of the Electoral Act, 1992, does not provide for its own rules, the applicants were obliged by both the enabling Act and the Rules of Court to have lodged their application not later than 15h00 on 4 January 2010 within the meaning of rule 3 of the Rules of Court, which must apply in the circumstances. Thus, I hold that 15H00 on 4 January 2010 are the critical time and date in the present matter. Rule 3 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. (Emphasis added)

[15] In this regard, I find on the papers that it is indisputable that the applicants lodged their application with the Registrar of the Court in terms of s. 110 of the Electoral Act, 1992, at 16h30 on 4 January 2010; and according to the respondents, the applicants’ disobedience of s. 110(2) of the Electoral Act, 1992, and rule 3 of the Rules of Court should result in nullification of the application.

[16] In the replying papers the applicants’ Mr Haufiku filed of record an affidavit by their instructing counsel, Mr. Louw, in which he purports to state that when he presented the application to Court on 4 January 2010 he had ‘personally arranged with the acting registrar that was on duty for that day, for the filing of the applicants’ application, which I informed her was an election application. She was made aware of the fact that it had been prepared under severe time constraints. The said acting registrar agreed to the arrangement.’) No such allegation was made in the founding papers and, besides, the assistant registrar is not named nor does she confirm that allegation pertaining to her.

[17] The gravamen of the applicants’ argument in response to the respondents’ second point in limine is that in her discretion, the Registrar may accept documents at any time. In this regard, the applicants submitted further, ‘This is a matter which falls entirely within the discretion of the Registrar. In doing so, he requires no intervention or direction of the Court.’ That may be so, but what the applicants’ counsel forgets is that the Registrar’s discretion under the said rule 3 is not an absolute or unfettered discretion; it is, rather, a guided and fettered discretion. The words ‘in exceptional circumstances’ indicate the lines on which the Registrar’s mind must naturally proceed in exercising the discretion which rule 3 confers on her. (See The Government of the Republic of Namibia v Uvhungu–Vhungu Farm Development Corporation Case No. I1332/2009 (judgment on 7 October 2009) (Unreported) at p. 3, applying dictum by Innes CJ in Rood v Wallach 1904 TS 257 at 258. The upshot of this qualification is that the exercise of the Registrar’s discretion is also fettered inasmuch as she can only lawfully and properly exercise the discretion and accept documents at any time outside the prescribed time limit, as she did in the present case, only if exceptional circumstances existed. That is what rule 3 requires.

[18] In their answering papers, the respondents placed in issue the exercise of the registrar’s discretion; that is to say, the respondents, in a way, contended that there were not in existence exceptional circumstances, within the meaning of rule 3, upon which the registrar, acting properly, could have been satisfied, entitling her to accept the applicants’ application after 15H00 on 4 January 2010. The applicants bore the onus on that issue. In that event, I hold that it was reasonably incumbent on the applicants to place sufficient evidence in their founding papers indicating what information they submitted to the Registrar which constituted the lines on which the registrar’s mind naturally proceeded in finding that exceptional circumstances existed when exercising the discretion which rule 3 confers on her. Contrary to Mr Tötemeyer’s suggestion to the contrary, it was necessary to file a confirmatory affidavit by the Registrar to confirm that she had been apprised of the exceptional circumstances and that she in light thereof exercised her discretion.

[19] As matters stand, there is no such evidence on the papers. In this regard, I do not think the applicants are entitled to assume that just because the Registrar accepted the papers at that late hour, she must have exercised her discretion properly. That is challenged by the respondents.

[20] Mr. Tötemeyer submitted that simply because the Assistant Registrar (for the Registrar) accepted the documents, the Assistant Registrar (whose identity is up to now unknown) exercised his or her discretion in terms of rule 3. If in their founding affidavit, the said ‘arrangement’ had been adverted to, the respondents could have taken the necessary steps to refute the applicants’ contention. But then Mr. Tötemeyer submitted that the challenge to the exercise of discretion by the Registrar was only brought to the knowledge of the applicants in the respondents’ founding affidavit. If that was the case, the applicants should have dealt with the challenge in their replying affidavit, by identifying the said Assistant Registrar. If that had happened, the respondents, too, would have had the opportunity to take the necessary steps to test any such reply; for example, by filing (upon leave of the Court) further affidavits to deal with such response.

[21] As the Court asked during Mr. Tötemeyer’s oral submission, what was so difficult for the applicants to have given the name of the particular Assistant Registrar in their affidavit to enable the respondents to test the veracity and credibility of the applicants contention by an affidavit that prior arrangements had been made between the applicants’ instructing counsel and the nameless Assistant Registrar who exercised his or her discretion before accepting the documents? Concomitantly, not only credible evidence of any such prior arrangement but also the information that was received by the Assistant Registrar that constituted the lines on which the Assistant Registrar’s mind proceeded in exercising his or her discretion, as he or she allegedly did, under rule 3. (See The Government of the Republic of Namibia v Uvhungu-Vhungu Farm Development Corporation supra, loc. cit).

[22] I therefore on this point accept Mr. Maleka’s submission that transparency and public accountability require that the information that was given to the Assistant Registrar by the applicants’ instructing counsel that apparently formed the lines on which the Assistant Registrar’s ‘mind naturally proceeded in exercising’ the guided and fettered discretion given to the Registrar by rule 3 of the Rules of Court should have been shown for all to see, particularly the respondents so as to enable them to decide whether to challenge it. As I have said ad nauseam, the discretion in terms of rule 3 of the Rules of Court is not an absolute or unfettered discretion; it is a guided and fettered discretion; that is, guided and fettered by the same rule. In sum, the Registrar would be said to have exercised her discretion properly if she had done so in strict accordance with the provisions of rule 3. There is no credible evidence that she did. I am fortified in my conclusion by Bezuidenhout v A. A. Mutual Insurance Association Ltd 1978 (1) SA 703 (A) which Mr. Tötemeyer referred to us. Unlike in the present case, in Bezuidenhout v A. A. Mutual Insurance Association Ltd information constituting ‘special circumstances’ was given to the exerciser of the discretion (i.e. the authorized insurer) under the applicable statute, namely, s. 24 (2) of the Compulsory Motor Vehicle Insurance Act, 1972 (Act 56 of 1972); that is, information forming the lines on which the authorized insurer’s ‘mind naturally proceeded in exercising the discretion’ which s. 24 (2) of Act 56 of 1972 conferred on the authorized insurer.

[23] Mr. Tötemeyer submitted that if the respondents contended that the Registrar had exercised her discretion improperly, the respondents ought to have brought an application to review the Registrar’s decision in terms of the Rules of Court. I do not know of any rule of law – and none was pointed out to us by Mr. Tötemeyer – that a party cannot challenge the exercise of discretion in an ongoing matter in which the exercise of discretion is at issue.

[24] It was Mr. Tötemeyer’s further submission that rule 3 of the Rules of Court and s. 110 (2) of the Electoral Act, 1992, are separate provisions, and therefore one should ‘not conflate’ those provisions of the Act and those of the Rules. With the greatest deference, Mr. Tötemeyer misses the crucial point. In these proceedings the Court is not called upon to merely interpret s. 110 (2) and rule (3), and stop there. Doubtless, any such exercise will be of no use to anyone. The Court is rather asked to both interpret the provisions of s. 110 and those of rule 3 and also apply those provisions together in order to determine the present application. (The words ‘interpret’ and ‘apply’ are italicized for emphasis.) Indeed, in a way, that is exactly what the applicants have done: they have brought the present s. 109 application through the interpretation and application of s. 110 (2) and rule 3; otherwise the applicants could not have succeeded in bringing the present application, if they had merely interpreted those provisions and stopped there. Section 110 (2), in effect, says so: in an s. 109 application, s. 110 (2) and rule (3) of the Rules of Court must be interpreted and applied together. Significantly, s. 110 (2) provides: ‘Presentation of the application shall be made by lodging it with the Registrar of the Court.’ (Emphasis added) In sum, in my view if the provisions of s. 110 (2) and rule 3 of the Rules of Court are not interpreted and applied together, there can never be an s. 109 application for the Court’s determination.

[25] It appears to us clear that rule 3 imposes two peremptory requirements, and either of them must – and I use the word ‘must’ advisedly – be satisfied before the lodgement of an election application in terms of s. 110 of the Electoral Act, 1992, can be said to be proper in the eyes of the law. In this regard, I do not have one iota of doubt in my mind that the relevant provisions of s. 110 of the enabling Act and those of rule 3 of the Rules of Court are couched in clear peremptory terms. In this regard, I underline the following indicative clauses in s. 110: ‘An election application shall be presented …’ (subsection (1)) and ‘Presentation of the application shall be made …’ (subsection (2)) (Emphasis supplied). I also signalize the following indicative clauses in rule 3 of the Rules of Court: ‘the offices (i.e. of the Registrar) shall be open from 9 am to 1 pm and from 2 pm to 3 pm’; and ‘the registrar … shall do so when directed by the court or a judge.’ (My emphasis)

[26] When a provision of a legislation or a subordinate legislation is passed for the purpose of enabling something to be done, and such provision prescribes the way in which it is to be done, that provision may be either an absolute provision or a directory provision; the distinction is reflected in the use of ‘shall’ to signify an absolute provision and ‘may’ a directory provision. And the difference is that an absolute provision must be obeyed or fulfilled exactly, but it is sufficient if a directory provision be obeyed or fulfilled substantially; a priori, the act permitted by an absolute provision is lawful only if done in strict accordance with the conditions annexed to the statutory permission. (SGG Edgar, Craies on Statute Law (7^th edn.): p. 260, and the cases there cited) In this regard, it was stated in Hercules Town Council v Dalla 1936 TPD 229 at 240 that –

‘there seems to be one rule that stands clear, and that is that provisions with respect to time are always obligatory, unless a power of extending the time is given to the Court.’

I respectfully accept the above dictum in Hercules Town Council v Dalla as a correct statement of law, and so I adopt it.

[27] On the point under consideration; delivering the unanimous judgment of a Full Bench of this Court in DTA of Namibia and another v SWAPO Party of Namibia and others 2005 NR 1, Silungwe J applied at 11A-B thereof the above-quoted dictum in Hercules Town Council v Dalla supra. Ten years after Hercules Town Council v Dalla, in Volschenk v Volschenk 1946 TPD 486 at 490, the same Court as in Hercules Town Council v Dalla modified, by way of a qualification, the observation that Court had made in Hercules Town Council v Dalla thus:

I am not aware of any decision laying down a general rule that all provisions with respect to time are necessarily obligatory and that failure to comply strictly therewith results in nullifying all acts done pursuant thereto. The real intention of the Legislature should in all cases be enquired into and the reasons ascertained why the Legislature should have wished to create a nullity.

[28] Silungwe J applied the above-quoted dictum in Volschenk v Volschenk, too, in DTA of Namibia and Another v SWAPO Party of Namibia and others supra at 11A-B; and relying on Volschenk v Volschenk in that case, the learned judge opined at 11C that there was ‘a tendency towards flexibility’ in the application of the Hercules Town Council v Dalla principle. That may so; but in my opinion the irrefragably preponderant consideration in all this is what the intention of the Legislature or the rule maker of the statutory instrument (in casu, the rule 3 ) is, as clearly expressed in the wording of the particular provision of the statute or statutory instrument in question. I stress ‘as clearly expressed in the wording of the particular provision’ for a purpose: it is to show that the intention of the statute maker or rule maker can only be gathered from the wording of the provision in question. Relying on the authorities, this Court observed as follows in Jacob Alexander v The Minister of Justice and Others Case No. A210/2007 (judgment on 2 July 2008) (Unreported) at p. 21, which the Court applied in Rally for Democracy and Progress and others v Electoral Commission of Namibia and others Case No. A432/09 (judgment on 24 December 2009) (Unreported) at pp 14 – 15:

The stupendous difficulty, which faces any argument that claims better knowledge of what the Legislature intended than what the Legislature actually had in mind when it expressed itself clearly as it did in the … Act, is to put forward without any justification, the unexpressed intention of the Legislature.

[29] In the instant case, I have shown above in the indicative provisions in s.110 (2) and rule 3 that the word ‘shall’ is used in either case. The use of the word ‘shall’ by Parliament in s. 110(2) of the Electoral Act, 1992, and by the rule maker in rule 3 of the Rules of Court shows what Parliament and the rule maker, respectively, had in mind when they expressed themselves clearly as they did in the said respective provisions, namely, that those provisions are absolute and peremptory. (See SGG Edgar, Craies on Statute Law supra; Hercules Town Council v Dalla supra.) And it is my view that failure to obey the peremptory provisions in s. 110(2) of the Electoral Act, 1992, and rule 3 of the Rules of Court, is fatal.

[30] The absoluteness and peremptoriness of those two provisions, which must be applied together in an s. 109 application, as aforesaid, loom large because of ‘the expeditious nature that the Legislature attached to election applications’ (DTA of Namibia and Another v SWAPO Party of Namibia and Others supra at 11G). Thus, apart from the wording of s. 110(2) of the Electoral Act, 1992, and rule 3 of the Rules of Court, which as I have held previously, is expressed in peremptory terms, the circumstances which weigh heavily with me in favour of a mandatory construction in respect of those two related provisions, are the interests of the public that an electoral matter be speedily determined. (Nair v Teik [1967] 2 All ER 34 (Privy Council) at 40B). Besides, the need for flexibility adverted to by this Court (per Silungwe J) in DTA of Namibia and Another v SWAPO Party of Namibia and Others supra, relying on Volschenk v Volschenk supra (as aforesaid), is satisfied in the application of rule 3 of the Rules of Court because rule 3 – and this is important – is not harsh and inflexible: the rule has a built-in flexibility mechanism inasmuch as the Court may direct the Registrar to issue process and accept documents at any time outside the prescribed time limits. Accordingly, on this score, it is my opinion that DTA of Namibia and Another v SWAPO Party of Namibia and others supra and Volschenk v Volschenk supra do not in any way detract from the conclusion I have already reached about the consequence for an application that disobeys the time limits prescribed by s. 110(2) of the Electoral Act, 1992, read with rule 3 of the Rules of Court; that is to say, nullification for disobedience.

[31] I am fortified in this conclusion by the following. That the provisions of s. 110 (2) of that Act and rule 3 of the Rules of Court are absolute and peremptory and that disobedience must, without any allowance, result in nullification of the application in question is put beyond doubt when one takes into account the fact that the time limits in those provisions bind not only litigants but also the Court itself. According to s.116 (3) of the Electoral Act, 1992, the Court must determine an s.109 application within 60 days from the date of the presentation of the application to the Registrar unless special circumstances dictate otherwise.

[32] It follows that the applicants’ submission that they had only seven days ‘up to 4 January 2010’ to inspect the election materials as ordered by this Court on 24 December 2009, as aforementioned, cannot take their matter any further. As I have noted previously, rule 3 of the Rules of Court is not inflexible. The applicants could have approached the Court to direct the Registrar to issue process and accept documents after 15h00 on 4 January 2010. That, the applicants did not do: it is too late in the day for the applicants to seek succour in the alleged situation in the present proceedings. In any case, as this Court held in Rally for Democracy and Progress and others v Electoral Commission of Namibia and others Case NO. A432/09 supra at p. 22, it is not a precondition that an s. 109 application may only be made after an s.14 (of the Electoral Amendment Act, 1998 (Act No. 30 of 1998)) application has been made; and so, as I see it, nothing prevented the applicants from lodging an s.109 application timeously in the present matter.

[33] On the point under consideration, Mr. Tötemeyer referred the Court to Suidwes -Afrikaanse Munisipale Personeel Vereniging v Minister of Labour and Another 1978 (1) 1027 (SWA). Mr. Tötemeyer was particularly enamoured with the following observation by Hart AJP at 1038A-B:

These authoritative views are most germane in deciding the present issue. This decision was referred to with approval in Meintjies v H. D. Combrinck (Edms.) Bpk, 1961 (1) SA 262 (AD), and Regal v African Superslate (Pty) Ltd, 1962 (3) SA 18 (AD) both of which admittedly concerned late compliance with the Appellate Division Rules of Court but the principle in my opinion has now been firmly established that, in all cases of time limitations, whether statutory or in terms of the Rules of Court, the Supreme Court has an inherent right to grant condonation where principles of justice and fair play demand it to avoid hardship and where the reasons for strict non-compliance with such time limits have been explained to the satisfaction of the Court. Other useful examples are to be found in Sithole v Sekretaris van Binnelandse Sake en ‘n Ander, 1960 (4) SA 105 (T), where the Court condoned a delay of s long as four and a half years in regard to a statutory limitation of 30 day within which an appeal could be brought.

[34] The ‘issue’ which, according to Hart AJP, ‘the authoritative views (he referred to earlier) are most germane’ concerned the prosecution of an appeal by a single individual, one Konrad Lilienthal, involving a contract of employment, that is to say, the issue involved private contract and the prosecution of an appeal concerning some aspect of that private contract. Besides, Hart AJP was only able to refer to a solitary case, that is, Sithole v Sekretaris van Binnelandse Sake en ‘n Ander, supra as containing ‘other examples’. In my view, if Lilienthal delayed in bringing an appeal or Sithole delayed for four and half years or more to prosecute an appeal, that is of no moment; it is a private concern of Lilienthal or Sithole. There was no national and public interest involved. There was no ‘expeditious nature that the legislature attached to’ either appeal. (See DTA of Namibia and Another v SWAPO Party of Namibia and Others supra). (My emphasis) The delayed appeals by Lilienthal or Sithole did not engender any ‘interests of the public that (the matter) be speedily determined’. (See Nair v Teik supra.) It follows that in my view Suidwes -Afrikaanse Munisipale Personeel Vereniging v Minister of Labour and Another supra cannot be put up as authority contrariwise to the view that the Electoral Act, 1992, read with the provisions of rule 3 of the Rules of Court, are peremptory, and disobedience of them must as a matter of law result in nullification of the application concerned. The applicants cannot be rescued by that case. In my judgement, the applicants were required to file the election application not later than 15h00 on 4 January 2010.

[35] From all the above, I discern a clear intention on the part of the Legislature and the rule maker that the Legislature and the rule maker, respectively, wished to create a nullity when there has been disobedience of s 110(2) of the Electoral Act, 1992, and rule 3 of the Rules of Court, respectively.

[36] In virtue of the aforegoing conclusions and reasoning, I hold that China State Construction Engineering Corporation South Africa (Pty) Ltd v Pro Joinery CC 2007 (2) NR 675 (HC) and the cases there relied on are not of real assistance on the point under consideration because that case dealt with irregular proceedings within the meaning of rule 30 of the Rules of Court. We are in the present proceedings rather concerned with disobedience of peremptory and absolute provisions of a statute and a rule of the Rules of Court applicable thereto and the lack of evidence on the papers that a guided and fettered discretion was exercised in accordance with the guidance provided in the said rule. I hesitate not in noting that, in any case, the time limits regulating election applications do not fall within the provisions of the Court regulating its own procedures. (Reinecke and another v Nel and another 1984 (1) SA 820 (Head note); Ipland v Veldman and another 1983 (1) SA 520 (Head note))

[37] As I have held previously, the condition attached to the statutory permission that will enable the Registrar to issue process and accept documents at any time outside the statutorily prescribed time is when exceptional circumstances exist or when the Court directs the Registrar to issue process and accept documents at any time outside the prescribed time. Furthermore, I have already found that there is no evidence whatsoever on the papers that establishes to our satisfaction that in the opinion of the Registrar exceptional circumstances existed or that a Judge directed the Registrar to issue process or accept documents after 15h00 on 4 January 2010. In this regard, it has been held that ‘it is a principle of our law that a thing done contrary to the direct prohibition of the law is generally void and of no effect; the mere prohibition operates to nullify the act.’ (Watson NO and another v Shaw NO and others 2008 (1) SA 350 (C) at 360H, applying dictum at 188A-B in Metro Western Cape (Pty) Ltd v Ross 1996 (3) SA 181 (A) and dictum at 109 in Schierhout v Minister of Justice 1926 AD 99). I respectfully accept the aforementioned dictum in Watson NO and another v Shaw NO and others supra as a correct statement of law, and so I adopt it.

[38] In casu, the Registrar was prohibited from issuing process and accepting documents after 15h00 on 4 January 2010 when, as I have found above, no exceptional circumstances existed and when the Court or a Judge had not directed her to act as she did.

[39] But, that is not the end of the matter. The applicants submit that there was the ‘undisputed agreement between the parties to extend ‘the 30 (-) day period beyond 4 January 2010’. This argument does not even begin to get off the starting-blocks. Doubtless and with the greatest deference, the entire submission is a fallacy. It is only the Legislature which has got the Constitutional legislative power to amend s. 110 so as to extend the thirty-day time limit for the presentation of an election application under Part VII of the Electoral Act, 1992; not even any of the two other organs of State can lawfully do that. In any case, it has been held in a long line of cases that an individual cannot waive a matter that the Legislature has enacted for the public good; that is, a matter in which the public have an interest. (E.g. Ritch and Bhyat v Union Government (Minister of Justice) 1912 AD 719; S v Nzuza 1963 (3) SA 631 (A); Hunt v Hunt 31 LJ, Ch p. 175; R v Perkins 1920 AD 307; SA Eagle Insurance Co. Ltd v Bavuma 1985 (3) SA 42 (A); Graham v Ingleby 1 Exch, p. 657; Pio v Smith 1986 (3) SA 145 (ZH)).

[40] A dictum in Ritch and Bhyat supra that is apropos to the matter now before us, and which I accept as a correct statement of law, is at p. 735. There, Innes ACJ stated:

… the same principle (i.e. the principle that an individual cannot waive a matter in which the public have an interest) must necessarily apply where the result of a renunciation by an individual would be to abrogate the term of a statute which in their nature are mandatory and not merely directory … Because otherwise the result would be not merely to destroy private rights, but to defeat the provisions of an enactment intended on general and public grounds to be peremptory and binding on all concerned.

[41] On this point, the dictum by Mfalila J in Pio v Smith supra at 151C is also apposite. There, the learned judge said:

That is to say, if the provision is for the public interest and it is contained in a peremptory enactment, then it must be complied with exactly and to the letter, whereas if the provision is for the personal interest of the respondent or the plaintiff then even if contained in a peremptory enactment, it can be waived at the instance of the person concerned. (Emphasis added)

[42] It follows that the argument founded on the terms of counsel’s submissions meant to be the applicants’ additional response to the respondent’s second point in limine , falls away. The provisions of s. 110(2) of the Electoral Act, 1992, and rule 3 of the Rules of Court are, in my view, as I have demonstrated previously, intended on general and public grounds to be peremptory and binding on all concerned.

[43] Having come to the conclusion that the presentation of the election application in respect of the National assembly election is a nullity, it becomes unnecessary to decide whether there is properly a condonation application before us and whether or not it must succeed.

[44] In view of the aforegoing conclusions and reasoning, I am impelled to the inevitable conclusion that the respondents’ second point in limine has a great deal of merit, and so I uphold that point in limine. In the face of all that, I do not think I am entitled to decide otherwise; armed with the Court’s inherent power or not. I therefore hold that the registrar’s acceptance of the presentation of the election application in terms of s. 110 of the Electoral Act, 1992, read with rule 3 of the Rules of Court, after 15h00 on 4 February 2010 is void and of no effect; a priori, I hold that in the eyes of the law no election application has been presented by the applicants within 30 days after the results of the Presidential and National Assembly elections were declared, within the meaning of s. 110 of the Electoral Act, 1992.

Is there an application properly before the Court challenging the result of the Presidential election?

[45] It is my view that the aforegoing conclusions also effectively dispose of any contentions as to whether this Court may permit amplification of the applicant’s application after 15H00 on so as to challenge the result of the Presidential election, too. It is rudimentary logic that one cannot naturally amplify that which does not exist. I have already held that there is no s. 109 application properly before the Court. That being the case, there cannot in law and in logic be any amplified application, which seeks to amplify that which does not exist, ad which this Court can take cognizance of.

[46] A further reason why I cannot accept the amplification of the applicant’s application filed after 15h00 on I 4 January 2010 is grounded firmly on the interpretation and application of s. 110, read with s. 113, of the Electoral Act, 1992.

[47] I have set out the provisions of s. 110 above, and so I do not need to rehash them here. And s. 113 provides:

Notice in writing of the presentation of an election application, accompanied by a I copy of the application and a certificate of the registrar of the court stating that the I amount determined by him or her as security has been paid or sufficient I recognizance has been furnished in respect of that amount contemplated in I section 110 (3), shall within ten days after the presentation of the application, be served in accordance with the rules of the court on a respondent.

[48] The following emerges from the interpretation and application of those provisions. The election application that was presented by the applicants to the Registrar in terms of s. 110 (2) of the Electoral Act, 1992, and based on which the Registrar determined the amount of security that should be furnished in terms of s. 110 and for which she issued a certificate did not include the applicants’ challenge to the result of the Presidential election. It follows indubitably that if I accepted the so-called ‘amplified application’, I would be acting in breach of the applicable statutory provisions, namely, s. 110 and 113 of the Electoral Act, 1992, because no certificate of the Registrar stating that the amount determined by her as security has been paid or sufficient recognisance has been furnished to the Registra’s satisfaction would have been issued for such application. In other words, the amount of security determined by the Registrar and paid by the applicants and in respect of which a certificate was issued did not cover the ‘amplified application’. In my judgement, I cannot accept the applicants’ amplified application without rendering s. 110 and 113 nugatory. I can accept the ‘amplified application’, as the applicants have urged the Court to do, only if authorized to do so by the Act.

[49] Accordingly, I do not find De Visser v Fitzpatrick 1907 TS 298 of any real assistance on the point under consideration. In De Visser v Fitzpatrick, a petition (the forerunner of an application) charging corrupt and illegal practices containing certain particulars relating to those charges was duly filed. After the expiration of the prescribed period the petitioner applied for leave to add further particulars relating to the charges contained in the petition. The Court in De Viser v Fitzpatrick allowed the proposed amendments because they did not amount to a new general charge. That is not the issue in the present proceedings. The challenge to the result of the Presidential elections can never be an amendment to the challenge to the result of the National Assembly election. The two elections, as I have mentioned previously, are very different by all accounts.

[50] I have no doubt in my mind that the so-called ‘amplified application’ is a totally different application from the application concerning the challenge to the result of the National Assembly elections: it was a new application on every count, as Mr Simenya submitted. That being the case that application should be subjected to the peremptory requirements of s. 110, and for our present purposes, s. 110 (3) concerning the payment of security and the issuance of the Registrar’s certificate ‘stating that the amount determined by him or her as security has been paid or sufficient recognizance has been furnished in respect of that amount as contemplated in section 110 (3)’.

[51] Relying on the conclusions and reasoning above respecting the interpretation of s. 110 (2) of the Electoral Act, 1992 and rule 3 of the Rules of Court, I conclude that the provisions of s. 110 (3) of that Act has not been complied with thereanent the challenge to the results of the Presidential results. For the sake of convenience, I will not repeat the conclusions and reasoning here.

[52] The considerations that must be signalized in order to dispose of Mr. Tötemeyer’s arguments on the point is as follows. In terms of s. 113, the papers that must – and I use ‘must’ advisedly – be served on the respondents are these: (1) the notice in writing of the presentation of an election application, (2) a copy of the application, and (3) a certificate of the Registrar stating that the amount determined by him or her as security has been paid or sufficient recognizance has been furnished in respect of that amount as contemplated in section 110 (3). If even one of items (1), (2), and (3) is missing, no amount of legal sophistry can persuade me that there is an application properly filed and served on the respondents. This conclusion is borne out by the clear, unambiguous and imperative provisions of s. 110 (3) (c). As Mr. Simenya submitted, it is only when an applicant complies with the furnishing of security or sufficient recognizance to the satisfaction of the Registrar and the Registrar has issued a certificate acknowledging either act that, in the words of s. 110 (3) (c), ‘the application shall be deemed to be at issue, or, if there is no such compliance, no further proceedings shall be had on the application’.

[53] The intention of the Legislature is crystal clear: no furnishing of security or sufficient recognizance; no further proceedings ‘shall be had on the application’. As respects the challenge to the result of the Presidential elections, item (3) (see my presentation above) is missing. That being the case ‘no further proceedings shall be had on the application’ within the meaning of s. 110 (3) (C) of the Electoral Act, 1992; and this Court cannot condone the applicants non-compliance with the imperative and peremptory provisions of s. 110 (3). I should have said so even if I had not looked at decided cases on the issue. But when I look at DTA of Namibia and Another v SWAPO Party of Namibia and others 2005 NR 1, I feel bound to say that the applicants’ non-compliance with s. 110 (3) of the Electoral Act, 1992, cannot be condoned. In my opinion, no amount of judicial activism based on the inherent power of the Court can overrule the intention of the Legislature expressed so clearly in the wording of s. 110 (3) in such an important matter as the election of the Head of State and Government.

[54] Mr. Tötemeyer submitted that the furnishing of security is for the benefit of the respondents, and taking out of the equation the 1^st respondent, the other respondents have not opposed the application and so non-compliance with rule 110 (3) ought to be condoned. The 2^nd respondent has opposed the application; but then Mr. Tötemeyer says that no relief is sought from the 2^nd respondent. Mr. Tötemeyer’s argument, with the greatest deference, is a weak one. When the applicants presented the application challenging the result of the Presidential election, the applicants did not know the respondents would not oppose the application; neither did the Registrar. Security is required regardless of whether or not a respondent later opposes the application. In the present case the applicants chose not to comply with the peremptory requirement of obtaining the Registrar’s certificate. They also failed to comply with item (3) of the aforementioned items required to be served on the respondents in terms of s. 113 of the Electoral Act, 1992. It follows that the respondents’ point in limine succeeds. In the face of the aforegoing conclusions and reasoning, I feel bound to hold that there is no application properly before the Court respecting a challenge to the result of the Presidential elections.

[55] For all that I have held above, it need hardly saying that it is otiose on any pan of scale to consider the rest of the respondents’ preliminary objections. It will also be superlatively senseless and illogical to consider any striking out application targeting certain matters in the papers filed of record and, indeed, any other aspects of the present application.

[56] Mr Simenya for the second respondent had in argument raised the issue of non-joinder of the members of the National Assembly declared duly elected in terms of their respective party lists. He argued that their non-joinder is fatal and that the election application challenging the National assembly Election stands to be struck from the roll on that basis alone. Although the point raised is an important one, we prefer not to decide it in these proceedings, not least because it was raised for the first time, without warning, in oral argument. In view of the conclusions to which I have come on the other preliminary points which effectively dispose off that application, any views on the issue raised would be obiter in any event. In the light of the submission by Mr Strydom for the applicants that the point raised is not valid because in an earlier election challenge no such issue was raised but the Court regardless proceeded to set the election aside that we wish to warn that nothing prevents any party to in future raise a point of law that had not been raised in earlier litigation.

[57] The parties are in agreement that costs should follow the event and that it should include costs occasioned by the employment of all instructed counsel on either side. We have no reason to think otherwise and would so order.

[58] In the result, I make the following order:

1. The election application, lodged on 4 January 2010 challenging the results of the National Assembly Election held on 27 and 28 November 2009 and declared on 4 January 2010 in Government Notice 246 (Government Gazette No. 4397) (2009), is struck from the roll, with costs, including costs occasioned by the employment of four (4) instructed counsel in the case of the first respondent and two (2) instructed counsel in the case of the second respondent. The applicants are liable to pay such costs jointly and severally, the one paying, the other to be absolved.

2. The election application, lodged on 14 January 2010, challenging the Presidential Election held on 27 and 28 November 2009 and duly declared on 4 January 2010 in Government Notice 246 (Government Gazette No.3497) (2009), is struck from the roll with costs, including costs occasioned by the employment of four (4) instructed counsel in the case of the first respondent and two (2) instructed counsel in the case of the second respondent.

________________________

PARKER J

ON BEHALF OF THE APPLICANTS: Adv. Tötemeyer SC

Adv.Strydom

Adv. Van Vuuren

Instructed by: Theunissen, Louw & Partners

ON BEHALF OF THE 1^ST RESPONDENT: Mr Maleka SC

Mr Hinda

Mr Namandje

Mr Narib

Instructed by: The Government Attorney

ON BEHALF OF THE 2^ND RESPONDENT: Mr Simenya SC

Dr Akwenda

Instructed by: Shikongo Law Chambers

3^RD – 9^TH RESPONDENTS: No appearance

CASE No.: A 01/2010

REPORTABLE

IN THE HIGH COURT OF NAMIBIA

In the matter between:

RALLY FOR DEMOCRACY AND PROGRESS 1^st APPLICANT

UNITED DEMOCRATIC FRONT OF NAMIBIA 2^nd APPLICANT

DEMOCRATIC TURNHALLE ALLIANCE 3^rd APPLICANT

CONGRESS OF DEMOCRATS 4^th APPLICANT

REPUBLICAN PARTY OF NAMIBIA 5^th APPLICANT

ALL PEOPLES PARTY 6^th APPLICANT

NATIONAL UNITY DEMOCRATIC ORGANISATION 7^th APPLICANT

NAMIBIA DEMOCRATIC MOVEMENT FOR CHANGE 8^th APPLICANT

DEMOCRATIC PARTY OF NAMIBIA 9^th APPLICANT

HIDIPO LIVIUS HAMUTENYA 10^th APPLICANT

JUSTUS GAROEB 11^th APPLICANT

KATUUTIRE KAURA 12^th APPLICANT

BENJAMIN ULENGA 13^th APPLICANT

HENRY FERDINAND MUDGE 14^th APPLICANT

IGNATIUS NKOTONGO SHIXWAMENI 15^th APPLICANT

KUAIMA RIRUAKO 16^th APPLICANT

FRANS MIKUB GOAGOSEB 17^th APPLICANT

DAVID SALOMON ISAACS 18^th APPLICANT

and

ELECTORAL COMMISSION OF NAMIBIA 1^st RESPONDENT

SWAPO PARTY OF NAMIBIA 2^nd RESPONDENT

MONITOR AKSIEGROEP 3^rd RESPONDENT

SOUTH WEST AFRICA NATIONAL UNION 4^th RESPONDENT

NATIONAL DEMOCRACY PARTY 5^th RESPONDENT

COMMUNIST PARTY 6^th RESPONDENT

HIFIKEPUNYE POHAMBA 7^th RESPONDENT

USUTUAIJE MAAMBERUA 8^th RESPONDENT

ATTIE BEUKES 9^th RESPONDENT

CORAM: DAMASEB JP et PARKER J

Heard on: 1^st, 2^nd March 2010

Delivered on: 4^th March 2010

JUDGMENT:

DAMASEB, JP: [1] I wish to record at the outset that I concur with the result proposed by Parker J at the end of his judgment. Considering that I come to the same result for slightly different reasons, especially with the respect to the challenge to the result of the National Assembly Election, I thought it appropriate to make a few remarks of my own; not least also in view of the importance of the grounds on which the two election applications in this case stand to be disallowed.

[2] The statutory bases for the National Assembly election and the Presidential election are amply set out in the judgment of Parker J. I do not wish to repeat that because I am in agreement with the way Parker J deals with that matter. I only wish to echo that the two are separate and distinct elections.

The challenge to the presidential poll

[3] It is common cause that the election application ‘’presented to court’’ (infra) on 4 January 2010 related only to the National Assembly elections. In his founding affidavit, Mr Libolly Haufiku, who deposed to the main affidavit on behalf of all the applicants, stated that the papers may in due course be ‘’amplified’’ on account of the alleged non co-operation of the first respondent in allowing access to election material pursuant to an order of this Court granting access to such material in terms of sec.93 of the Electoral Act . No.24 of 1992, as amended (‘’the Electoral Act’’). In his founding affidavit , Mr Haufiku stated that the applicants intended to “amplify” the election application after its “presentation to court”.

[4] Section 110 of the Electoral Act states as follows:

(1) An election application shall be presented within 30 days after the day on which the result of the election in question has been declared as provided in this Act.

(2) Presentation of the application shall be made by lodging it with the registrar of the court.

(3) (a) At the time of the presentation of the application or within five

days thereafter, security for the payment of all costs, charges and expenses

that may become payable by the applicant –

(i) to any person which may be summoned as a witness on his or her behalf; and

(ii) to the person, or, in the case of an election on party lists, the political party whose election or return is complained of (hereinafter referred to as the respondent)

shall be furnished by or on behalf of the applicant.

(b) The security shall be for an amount determined by the registrar of the court and shall be furnished in money or by recognizance to the satisfaction of the said registrar.

(c) If the applicant complies with the provisions of paragraph (b), the application shall be deemed to be at issue, or, if there is no such compliance, no further proceedings shall be had on the application.’’ (Emphasis added)

Section 113 states:

“Notice in writing of the presentation of an election application, accompanied by a copy of the application and a certificate of the registrar of the court stating that the amount determined by him or her as security has been paid or sufficient recognizance has been furnished in respect of that amount as contemplated in section 110(3), shall within ten days after the presentation of the application, be served in accordance with the rules of the court on a respondent.”

[5] It is common cause that two separate elections took place on 27 and 28 November 2009: the National Assembly Elections and the Presidential Elections. The results of both of polls were announced on 4 December 2009. On 4 January 2010 the applicants presented to Court an application in terms of Chapter VII (sec.110 , supra )of the Electoral Act , challenging the National Assembly elections only. Security for cotss was determined and duly paid in respect of that election application.

[6] In the election application presented to Court on 4 January 2010, Mr Haufiku for the applicants stated in his founding affidavit that:-

“the purpose of the application was to have the elections of the National Assembly held on 27 and 28 November 2009, declared null and void and set aside, alternatively, to have the elections results announced on 4 December 2009 ... nullified and to have the ballots cast and election recounted.” (Emphasis supplied)

[7] That the applicants sought relief only against the result of the National Assembly elections is borne out by the fact that in the 4 January application, none of the presidential candidates were cited either as applicants or respondents. They are now cited in the “amplified notice of motion” (infra). No assertions are made in the papers filed on 4 January 2010 relative to the presidential poll’s invalidity. This much was conceded by Mr Totemeyer in oral argument.

[8] On 14 January 2010, before service on the respondents of the election application as presented to Court on 4 January 2010, the applicants filed further papers referred to as the “amplified notice of motion”, together with further affidavits. These papers are aimed at:

i) adding additional grounds for challenging the National Assembly elections; and

ii) mounting a challenge against the Presidential Election.

[9] From the above , two issues arise: the first is the applicant’s assumption that their indication in the founding papers that they may in due course amplify their papers entitled them to include a challenge against the presidential poll in the “amplified” papers. The second is the applicants’ assumption that it is competent under the Electoral Act to “amplify” (or amend) an election application which had already become at issue in terms of sec. 110 (3) of the Electoral Act, by adding additional grounds to an earlier application. This judgment does not address the last-mentioned assumption.

[10] The first and second respondents have raised objection to the applicants launching a challenge against the presidential poll in the “amplified notice of motion” filed on 14 January 2010. They premise the objection on the legal submission that the challenge to the presidential poll was brought beyond the 30-day period and is accordingly prescribed. In addition, they submit, being a separate and substantive application challenging the presidential poll, the applicant’s failure to have provided security in respect of the presidential poll’s challenge makes it a nullity in terms of sec. 110 (3)(c) of the Electoral Act.

[11] The applicants respond that, first, the Court must extend the 30-day time period for the lodging of the election application challenging the Presidential Election in view of the time pressure under which they had to prepare the papers, and the fact that they were obstructed in that endeavour by the first respondent’s failure to give them timeous access to election material in the wake of this Courts’ order of 24 December obtained in terms of sec.93 of the Electoral Act. Secondly, they say that in respect of the challenge to the presidential poll security is not an issue as it has become academic in the light of the fact that none of the persons cited as respondents in the presidential poll challenge had opposed that relief.

Requirement for security before service of election application

[12] The Electoral Act is silent on what is meant by “presentation of the application. The Concise Oxford English Dictionary defines the noun “presentation” as ‘“the manner or style in which something is presented; a formal introduction”. It then defines the verb ”’present’’ as ‘“give formally or ceremonially; formally introduce to someone’’. The Electoral Act goes on to provide that service of the application on the respondents shall be effected within 10 days after its presentation to the Court. The scheme of the section is tolerably clear in my view: the first step in an election application is its presentation to Court. The reason is obvious: it is to afford the Registrar the opportunity to acquaint herself with the nature of the application as regards the number of applicants, respondents and the complexity of the matter. Based on that, the Registrar is to make an assessment of the security payable (if any). It is only then that the second step is taken, that of service on the respondents “in accordance with the rules of the court.”

[13] There can therefore be no doubt that the determination of security, who must pay it and in what amount, is a very important aspect of the election application procedure envisaged in Part VII of the Electoral Act . If the applicant complies with the security required by the Registrar the application is deemed to be at issue, and if no security is paid no further proceedings shall be had on the application and non- compliance cannot be condoned. That much is now settled. See the decision of the Full Bench of this Court in DTA of Namibia and Another v Swapo Party of Namibia and Others 2005 NR 1 at 11J/ 12A-D from which it is clear that the payment of security in terms of sec.110(3) of the Act is a conditio sine qua non to the pursuit of an election application where a person is cited who stands the risk of being unseated in the event of the challenge being successful. Security is determined by the Registrar at the time of the presentation of the application to Court or within 5 days of such presentation, but before service on a respondent, i.e. even before it is known which of the respondents will oppose the relief sought.

[14] The sole criterion for the determination of security payable is that a respondent is “a person whose election or return is complained of’’. It is neither here nor there that the person whose election or return is complained of does not upon service on him oppose the relief sought. No further proceedings shall be had on an election application in respect of which security has not been paid. The applicants’ reply that the security issue had become moot because none of the respondents had sine opposed it is, therefore, bad in law.

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

The in limine point raised in respect of the National assembly election challenge: non-compliance with rule 3 of the Rules of the High Court, read with sec. 113 of the Electoral Act

[16] Section 113 of the Electoral Act requires that an election application be served on the respondents ‘’in accordance with the Rules of Court’’. Service is governed by Rule 4 and, in this context, nothing turns on it. The relevant rule for our present purposes is rule 3 which 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. ‘’ (Emphasis added)

[17] It is common cause that the applicants’ election application challenging the outcome of the National assembly Election was launched after 16h00 on 4 January 2010. The first respondent has taken the point that the application purportedly lodged in terms of sec.110 on 4 January 2010 is a nullity because it was presented to Court irregularly. For this stance the first respondent draws inspiration from the terms of Rule 3 which I have already quoted.

[18] Parker J comes to the conclusion that the challenge to the National Assembly election lodged at 16h30 on 4 January 2010 is a nullity because it ought to have been filed at 15h00, unless there were ‘’exceptional circumstances’’ for its acceptance by the Registrar after the period stipulated in rule 3 of the Rules of Court. He holds that the applicants failed to make the necessary averments in their founding papers to satisfy the Court that exceptional circumstances existed for the acceptance of the application by the Registrar after 15h00.

[19] The applicants maintain that the Registrar had at the time exercised her discretion to accept the papers and that she was satisfied about the existence of ‘’exceptional circumstances’’ to trigger the operation of rule 3.

[20] Rule 3 prohibits the filing of process after 15H00, unless there are ”’exceptional circumstances’’ It is the applicant who relies on the existence of such special circumstances. I am in agreement that unless there were exceptional circumstances the acceptance of the application by the Registrar was a nullity and there could have been no valid election application before Court. I am also in agreement therefore that it ought to have been presented as part of the applicants’ case. The attempt to introduce evidence in the replying papers to the effect that the Registrar agreed (being satisfied of the exceptional circumstances) to accept the election application is not permissible. Since the applicants had acted contrary to law they were required to place on record in the founding papers, those exceptional circumstances which excused their prohibited conduct. The attempt to cure that in the replying papers does not avail the applicants. This proposition is settled and requires no citation of authority. I do not accept Mr Totemeyer’s submission that the applicants were not required at all to allege in their papers that the Registrar had been apprised of the existence of exceptional circumstances for filing papers after 15H00 and that she had thereafter exercised her discretion in accepting them.

[21] Rule 3 applies not just to the applicants but also to the Registrar. She cannot act as she pleases. The public must know why she acted in the way she did. It cannot lie in the mouth of the applicants or the Registrar to say: ‘’ Look I [she] had the discretion; I [she] exercised it, cadet questio.’’ I am afraid that is an invitation to lawlessness.

[22] The applicants bore both the evidentiary burden and the legal burden in respect of the existence of exceptional circumstances which justified prohibited conduct.. They should have placed on record the evidence that demonstrates such circumstances so that it can be objectively assessed as to qualifying as such. That is no mere formality: Mr Totemeyer made this look like some trivial matter that can be overlooked “in the interest of justice’’. With the greatest respect, he is wrong. Rules exist to promote predictability and certainty. The public expect their enforcement and ‘’justice’’ demands that the law is complied with. It is not that the applicants had no other recourse: the Court or a judge could have been approached to come to their assistance.

[23] On two occasions the Full Bench of this Court emphasised the importance of the Rules of Court: Swanepoel v Marais and Others 1992 NR 1 at 2I-J and 3E-F; Ark Trading v Meridien Financial Services Namibia (Pty) Ltd 1999 NR 230 at 238D-H. In the Swanepoel matter, Levy J writing for the Court put it thus:

‘’The Rules of Court are an important element in the machinery of justice. Failure to observe such rules can lead not only to inconvenience of immediate litigants and the Courts but also to the inconvenience of other litigants whose cases are delayed thereby. It is essential for the proper application of the law that the Rules of Court, which have been designed for that purpose, be complied with. Practice and procedure in the Courts can be completely dislocated by non-compliance.’’

[24] I cite the above dicta not so much to show that the respondents were prejudiced in this case by the applicants’ non-compliance with rule 3, but to show that compliance with Rules of Court is no trivial matter and that a very good basis must exist for a departure from the Rules.

Should condonation be granted for the failure to comply with rule 3?

[25] I have considered the approach adopted by Parker J in respect of the admitted non-compliance with rule 3. I do not wish to adopt the approach that such non-compliance rendered the application a nullity. I would rather assume, without deciding, that the combined effect of sec.113 and rule 3 is not peremptory but directory and that non-compliance in the circumstances before us , is amenable to condonation by the High Court. ( See: DTA of Namibia , supra, at 12 F – H).

[26] In oral argument, Mr Totemeyer confirmed that there is no formal application before Court seeking condonation for the admitted late lodgement of the election application. He submitted that the applicants’ position is that no condonation is required as they complied with rule 3. It is only if the Court were to find that they did not so comply that he, in the alternative and from the Bar, seeks such condonation in view of the admission by Mr Namandje for the first respondent that the first respondent does not rely on prejudice.

[27] Mr Totemeyer submits that the Court has an inherent power to grant condonation after expiry of a relevant statutory time limit with or without a prior formal application to do so. He cited Mc Gill v Vlakplaats Brickworks (Pty) Ltd, 1981 (1) SA 637(W), 634; Hessels Cash and Carry v S A Commercial Catering and Allied Workers Union, 1992 (4) SA 593 (E), 599; Federated Insurance Co. Ltd v Malakwana, 1986 (1) SA 751 (A).

[28] The first respondent opposes any condonation being granted to the applicants for the late filing of the application on 4 January - although they do not rely on any prejudice. Being satisfied that the applicants did not comply with rule 3, I must now consider the application for condonation made ‘’in the alternative’’ by Mr Totemeyer from the Bar.

Important considerations in considering the ‘’alternative’’ application for condonation

[29] I must stress at once that the parties directly locked in horns in an election application are not the only ones with an interest in its outcome. An election application has a far wider public interest and that must be placed in the scale in assessing whether or not condonation for the non-compliance with rule 3 read with s. 113 should be allowed.

[30] This court is required under the Electoral Act to determine (i.e. finalise) an election application “within 60 days from the presentation of an election application to the registrar of the court or within such longer period as special circumstances may require”. The law thus requires all processes attendant upon an election application after presentation to Court, i.e. exchange of pleadings and, crucially, preparation by both the Court and the parties, to take place in a rather compressed time frame. Expedition therefore lies at the heart of an election application as recognised by the Full Bench in DTA of Namibia and Another (supra) at 11G. I might add , predictability by all involved as to when defined activities will take place is equally an important matter; and understandably so: There is a clear public interest that election disputes are quickly resolved so that there is certainty: either that there will be an orderly re-election or recount as directed by a Court in the event it finds irregularities, or validating the election and thus bestowing legitimacy on those elected to proceed with the business of governing the nation. For this purpose, at the Court administration level, entertaining election applications involves making special arrangements in respect of the normal Court Roll, not without insignificant inconvenience and cost implications for other litigants. In the present matter, it involved removing other matters already enrolled and advising parties who had already prepared that their matters would not proceed so that a Bench could be constituted to hear the application: a very challenging task in a jurisdiction with a Bench as small as ours.

[31] Compliance with time prescriptions in the Electoral Act is therefore not comparable to the ordinary Rules of Court devised by the court for its run- of- the -mill business. I am not aware of any other legislation in this country, and none has been cited to us, which contains a regime for the disposal of causes, similar to that provided in the Act. The two examples¹ cited by Mr Totemeyer at the request of the Court are not comparable. Not only does the Electoral Act contain a statutory limitation (which is not unusual) for the launching of an election application, but it uniquely requires that such an application must be finalised within a stated period. If one discounts the 10-day window provided for determination of security- and payment thereof before service, the law in reality only provides for 50 days within which pleadings must be exchanged, the matter heard and a judgment given. That is no mean feat even by the standards of the most hardened trial judge or trial lawyer.

[32] It must be borne in mind that a respondent is not entitled to the election application until actual service on it after presentation to Court and determination of security by the Registrar. The applicant in an election matter therefore has a head-start over a respondent: The applicant knows what facts it will rely on and what grounds it will advance. It alone knows whether it will ask for the setting aside of an election or only a recount. It alone knows whether it will be in respect both the Presidential election and the National Assembly election. It alone knows whether only some or all constituencies will be the subject of challenge.

[33] On the contrary, the respondent can only sit and guess what next where, as here, (and it is a matter of public notoriety) an election application is threatened. This has implications for a respondents’ trial preparation in an election application : Until it is actually served with the application, a respondent would not know the nature of the case against it; which witnesses will be required to rebut any complaints: the documents to be relied on in rebuttal; verifying the complaints by the applicant(s) , etc. In the case especially of the first respondent, the problem can be serious. It will, as said in its papers before us by its Director, Mr Ndjarakana, have to recall officials who conducted the elections in order to consult. What if they have gone on leave or cannot be traced reasonably soon? And then the process of consulting, preparation of answering papers, cross-checking averments and doing confirmatory affidavits and so on must be had regard to. Before that counsel must be engaged: A decision must be taken not only of the seniority of counsel but also of their experience in such matters. There may be a clash with diaries- a factor not uncommon in litigation.

[34] For the reasons I take the view that litigation in terms of Part VII of Electoral Act must be distinguished from ordinary litigation and for that reason the ratio decidendi discernable from the cases cited by Mr Totemeyer must be approached with great caution. Even then, it is clear from all of the above authorities cited by Mr. Totemeyer that ‘’good cause’’ must be shown before the Court can grant condonation for the non-compliance with the Rules of Court.

Was good cause shown by the applicant? The factual matrix

[35] I remind myself that in considering in what circumstances to grant condonation for non-compliance with rule 3 read with sec 113 of the Electoral Act, one cannot use the same interpretative template as would be applicable in the consideration of a condonation application germane to other causes that come before this Court; for the latter are not subject to the same strictures as the time limits imposed for the finalisation of an election application.

[36] Before I consider the factual basis for the condonation sought ‘’in the alternative from the Bar’’ , I will start by quoting Mr. Totemeyer’s submission in his heads of argument, repeated in oral argument, on the approach we must take in resolving factual disputes on the preliminary points raised by the respondents. In paragraph 8 of the written heads he states:

“In considering the striking-out and the various in limine issues raised, it should be pointed out that in the case of factual disputes arising in these interlocutory matters, it is the version of the applicants which should prevail. Webster V Mitchell, 1948 (1) SA 1186 (W), 1189; SOS Kinderdorf International v Effie Lentin Architects, 1992 NR 390 (HC), 399 B – C; Hepute and Others v Minister of Mines and Energy, 2007 (1) NR 124 (HC), 130 A-1 ‘’.

[37] Mr Totemeyer is plainly wrong: None of these cases are authority for this proposition. The two South African cases, at the pages he cites, do not at all deal with the issue of how to resolve factual disputes when it comes to determining applications to strike, and points in limine. Of the Namibian cases, the first, SOS Kinderhof, is relevant in so far as it rejected the argument by counsel ‘’that in terms of Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd ... and similar cases , the Court a quo was obliged to accept [the respondent’s version] and could not have regard to the applicant’s version’’. The Court stated:

“There is no substance in this argument. The Stellenvale type of case relates to applications where the applicant is asking for final relief. In an application to set aside a default judgment, should the applicant be successful, the matter is not finally decided.’’

[38] It is worthy of note that in in the case before us, the applicants seek final relief to set the National Assembly election aside. Hepute holds that in an ‘’interlocutory procedure’’ relating to whether or not security should be granted:

‘’ the Plascon -Evans rule does not apply and the court should approach the ‘application’ and all the affidavits as a whole to ascertain whether the second respondent (as applicant in this rule 47 application has made out a case for the order sought in terms of rule 47.’’

Hepute is therefore against Mr. Totemeyer’s proposition.

[39] I see no reason in principle why the respondents’ version should be disregarded in the determination of the preliminary points raised in an application seeking final relief. That is not a path that leads to justice. I think it is only proper to have regard to all averments and to determine whether or not the applicants’ papers establish a good basis for granting condonation for the lodgement of the election application contrary to rule 3, read with sec. 113.

[40] The applicants’ position seems to be that ‘’ good cause ‘’ lies therein that in the founding papers it was alleged the election application papers were prepared under extreme time pressure and that they had limited time to inspect the election material obtained following a Court order. This, they say, was compounded by the first respondent’s non- co-operation during the inspection process.

[41] The first respondent not only denies frustrating the applicants in the inspection process, but states that they had already - even before the Court order under sec.93 - begun to make certain election material available to the applicants who in any event had threatened to challenge the election results soon after its announcement and therefore ought to have been prepared.The first respondent maintains that the root cause of the applicants’ failure to meet the deadline was on account of their having tried to access too much information and that they were not properly equipped for the task.

[42] As the first respondent’s Director Mr Ndjarakana puts it:

‘’the applicants wanted initially to go through electoral materials constituency by constituency, but later realised that they did not have sufficient time and capacity to go through all electoral materials. The applicants requested the first respondent’s officials to only provide them with specific documents relating to specific constituencies and or polling stations. I emphasise that the court order could only be implemented from 28 December 2009 being the ensuing working day after court order was granted. This being a holiday period, the Electoral Commission also had to contact relevant officials who were scattered outside Windhoek for them to report to the Warehouse where the electoral materials were kept so that they could assist with disclosing the materials to the applicants. Finally I point out that even though the applicants intended to challenge the elections, even before the announcement of the results on 4 December 2009 they waited until 16 December 2009 to launch the section 93 application. This did not work in their favour as the application could only be heard on 24 December 2009 and the ensuing court order could only be given effect to from 28 December 2009. I refer to the confirmatory affidavits of Mr Shigwedha and Farmer.’’

[43] The applicants’ Mr Haufiku replies to this allegation in the following terms:

‘’I find it significant that the deponent now raises a number of excuses as a basis for alleging that the applicants were unable to conduct a proper inspection of the required electoral material. The deponent in making these statements loses sight of the fact that the presentation of this election application from the onset was a tremendous exercise which could only be properly executed with the proper and diligent assistance of the first respondent and its officials. To subsequently come and blame the applicants for not being able to gain access to all the documents in time only underscores the fact that the first respondent seemingly falls to appreciate the seriousness of the application and its role as a public entity to ensure transparency and accountability in a process such as this. What is more is that the first respondent – as already stated unilaterally decided to terminate the inspection process on the 3 of January 2010, well-knowing at the time that the applicants still did not have access to all the documents concerned. It further follows that the issues raised by the deponent pertaining to the timing of the applicants’ application launched In terms of section 93 and the fact that the matter was only heard on the 24^th of December 2009 in all respects do not hold water and clearly only serve to illustrate and underscore the applicants’ frustration with the way in which the first respondent conducted itself during these proceedings.’’

[44] The first respondent’s Director also maintains that at no stage did they frustrate the applicants access, but that the first respondent’s concern was to make sure that the election material in the custody of the first respondent was not compromised during the inspection process. That the first respondent had the duty to make sure election material is not compromised is not seriously disputed, and seems self-evident to me.

[45] On a perusal of the papers, the applicants do not really undermine the assertion by the first respondent that they sought to obtain too much material and were ill-equipped to sift through it in good time; that the applicants underestimated the size of the task of inspecting the material to be obtained as a result of the Court order ; that they ought to have been on time because the decision to challenge the elections was taken very soon after the election; and that the first respondent begun to cooperate with the applicants even before the Court order of 24 December.

[46] The applicants in my view do not make out a case on the papers that they were in any way frustrated by the first respondent in accessing election material. I cannot see any unreasonableness in the first respondent taking such steps as were necessary to make sure that election material was not compromised. If that delayed the applicants somewhat ( and on the facts it seems very insignificant) the applicants must accept it as a necessary part of the order they obtained to access election material.

[47] One gets the very distinct impression that the applicants genuinely underestimated the labour that would be involved in going through what must have been masses of documents they obtained in the attempt to buttress their complaints of electoral irregularities. That to me is no basis for claiming ‘’exceptional circumstances’’ in terms of rule 3; nor is it the basis for granting condonation for the failure to have lodged the application on time. Those who approach court under sec.93 to obtain information in order somehow to (in the mass of paper) find the proverbial ‘’smoking gun’’ that makes out the case for nullifying an election, do so at their own peril.

[48] In considering Mr Totemeyer’s alternative application for condonation from the Bar, the overriding consideration is whether in the public interest the applicants’ failure to lodge the election application ought to be given. In view of the predictability that one expects in litigation in electoral matters, I take the view that it is not - for the reasons that I have given. The applicants make out no good case why they were not able to file the papers on time on 4 January 2010. It is apparent that their failure to come to Court on time related substantially to the fact that they wished to access too much information , and were overwhelmed by the information they obtained in the process. To grant condonation in those circumstances would not advance the general public interest as it has the potential for encouraging ‘’fishing expeditions’’ before challenging election results. This is the basis on which I exercise my discretion against granting condonation as sought “in the alternative” and from the Bar.

[49] The attitude taken on behalf of the applicants creating confusion about whether or not such condonation is required, fortifies me in this view: Condonation is in the discretion of the Court and to justify it, a litigant must show good cause and bona fides. The applicant had notice of the respondents’ point in limine when the answering papers were filed on 12 February 2010 and the replying papers on 19 February 2010. The applicants persisted even after that that the papers were properly lodged on 4 January 2010. No attempt at all was made at the reply stage to seek the Court’s condonation in any shape or form. Because applicants’ counsel takes the view that it is not necessary, no substantive application for condonation was filed fully setting out the reasons why the applicants filed their papers out of time to enable this Court to properly apply its mind to the matter.

[50] I am therefore unable to give the applicants condonation for the late lodgement of the application on 4 January 2010. Being satisfied that the registrar improperly accepted the application on 4 January 2010, and being satisfied that no proper case is made out for the Court granting condonation for its late filing, the application for condonation stands to be dismissed and the election application filed on 4 January 2010 challenging the National Assembly election struck from the roll.

Costs and order

[51] It is for these reasons that I too would strike the election application challenging the National Assembly Election and the one challenging the Presidential Election- both announced on 4 January 2010, with costs including one instructed counsel and four instructed counsel for the first respondent; and two instructed counsel for the second respondent. Such costs are against the applicants jointly and severally, the one paying, the others to be absolved.

________________

DAMASEB, JP

ON BEHALF OF THE APPLICANTS: Mr. Tötemeyer SC

Assisted by: Messrs Strydom and Van Vuuren

Instructed by: Theunissen, Louw & Partners

ON BEHALF OF THE 1^ST RESPONDENT: Mr Maleka SC

Assisted by: Messrs: Hinda, Namandje and Narib

Instructed by: The Government Attorney

ON BEHALF OF THE 2^ND RESPONDENT: Mr Semenya

Assisted by: Mr Akweenda

Instructed by: Shikongo Law Chambers

3^RD – 9^TH RESPONDENTS: No appearance

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