DAVID SALOMON ISAACS 18th Appellant and ELECTORAL COMMISSION OF NAMIBIA SWAPO PARTY OF NAMIBIA MONITOR AKSIEGROEP SOUTH WEST AFRICA NATIONAL UNION NATIONAL DEMOCRATIC PARTY COMMUNIST HIFIKEPUNYE POHAMBA USUTUAIJE MAAMBERUA BEUKES 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent 7th Respondent 8th Respondent 9th Respondent Coram: SHIVUTE, C.J., MARITZ, J.A., CHOMBA, A.J.A, MTAMBANENGWE, A.J.A. et LANGA, A.J.A. Heard on: 2010-05-31 Delivered on: 2010-09-06 APPEAL JUDGMENT ________________________________________________________________________ THE
- presiding officers at polling stations in terms of s. 85 of the Act. In addition to these complaints, they also rely on other claimed irregularities: the existence of ballot paper books with a different print and numbers to the official ones; the late completion of Elect 16 returns and, in certain instances, the failure to sign or return them altogether; allowing supporters of the second respondent to vote on behalf of other persons; asking certain voters to publicly demonstrate their political affiliation at the polling stations before they were allowed to vote; mobile stations forwarding sealed ballot boxes to verification centres instead of to the polling stations to which they had been assigned; allowing certain voters to vote twice; allowing political campaigning inside polling stations; allowing persons to vote without their identities having been verified; denying party agents permission to enter certain polling stations; adding votes cast for the first appellant to those cast for the second respondent and counting them in favour of the second respondent; allowing persons who were not registered on the voters roll to vote and using ink which could be washed off easily, thereby creating the potential that persons could vote more than once. These alleged malpractices, the appellants contend, allowed for the potential circumvention of the checks and balances put in place by the Act in the interest of accountability; undermined transparency in the electoral process; diminished the value of the verification process; opened the door
Rules of Court are couched in clear peremptory terms" and that they were "absolute". Failure to obey them, he concluded, was fatal and their “disobedience must, without any allowance, result in nullification of the application”. More so, he reasoned, because of the expeditious nature that the Legislature attached to election applications and the public interest in a speedy determination. Hence, he discerned a clear intention on the part of the Legislature and the "rule maker" that they wished to create a nullity where there has been disobedience of s 110(2) of the Act and rule 3 of the Rules of Court. On that basis, he sought to distinguish judgments which held that there was "a tendency towards flexibility" in the application of time periods. He noted that, “in any case, the time limits regulating election applications do not fall within the provisions of the Court regulating its own procedures” and that it was not necessary for him to decide whether there was properly a condonation application before the Court. The learned Judge a quo recognised that the registrar, in her discretion, could have accepted the late submission of the application but, he reasoned, the words “in exceptional circumstances” in rule 3 fettered the ambit of the discretion accorded to her. He held that the appellants bore the onus of proof on that issue; that it was incumbent on them to place sufficient evidence in the founding papers to show that the
“… 1. Whether the Election Application was properly and timeously presented as contemplated in the Act; … 2. If not, whether the presentation thereof, after 15h00, resulted in a nullity, unless appellant could show “exceptional circumstances” and whether they have shown “exceptional circumstances” on admissible evidence; … 3. If not, whether the Court could have condoned the presentation of the Election Application after the hours as contemplated in Rule 3 of the Rules of the High Court; and … 4. If so, whether the Court a quo, should have granted such condonation. … 5. In the that the Supreme Court finds that the Election Application should not have been struck – … 5.1 whether the Supreme Court should remit the matter to the High Court to decide the balance of the issues, already argued before the High Court; or … 5.2 whether the Supreme should entertain argument both on the application to strike out certain affidavits or portions thereof, as well as argument on the merits of the application.” These, then, set the lines of contention at the hearing of the appeal. The merits of the election application and the other preliminary