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[2012] ZAKZPHC 71
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Buthelezi v MEC for Co-Operative Governance and Traditional Affairs, Kwazulu-Natal and Others (995/2012) [2012] ZAKZPHC 71 (2 March 2012)
1
NOT REPORTABLE
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO: 995/2012
In the matter between:
PRINCE MANGOSUTHU BUTHELEZI
............................................
Applicant
and
MEC FOR CO-OPERATIVE
GOVERNANCE AND TRADITIONAL
AFFAIRS, KWAZULU-NATAL
..............................................
First
Respondent
DEPARTMENT OF CO-OPERATIVE
GOVERNANCE AND TRADITIONAL
AFFAIRS, KWAZULU-NATAL
.........................................
Second
Respondent
ELECTORAL COMMISSION
................................................
Third
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
On 6 February 2012, the applicant launched an urgent
application for the following relief:
‘
1. The failure on the part of the First and
Second Respondents to comply with the requirements of the
KwaZulu-Natal Traditional
Leadership Regulations, 2006, published in
PN 1646 of 2006 in the Provincial Gazette 6509 of 15 September 2006
(“
the Regulations
”)
and Chapter 2 of the Electoral Act 73 of 1998 ("
the
Electoral Act
"
;) in preparing the
voters’ roll for the KwaZulu-Natal Traditional Council
Elections to be held on 19 February 2012 is declared
irregular and
unlawful.
The First and Second Respondents are interdicted and restrained
from:
holding the KwaZulu-Natal Traditional Council Elections on 19
February 2012; and from
holding the KwaZulu Natal Traditional Council Elections on any
other date, until the procedural requirements for the compilation
of a voters’ roll as set forth in the Regulations and the
Electoral Act have
been complied with.
The First and Second Respondents are directed to pay the costs of
this application jointly and severally on the attorney and
client
scale, such costs to include the costs consequent on the employment
by the applicant of two counsel.
In the event of the Third Respondent opposing the relief sought by
the Applicant herein, the Third Respondent is directed to
pay the
costs of this application, such costs to include the costs
consequent on the employment by the applicant of two counsel,
jointly and severally with the First and Second Respondents.’
The application was opposed by the first and second
respondents. The third respondent delivered a notice of intention to
abide
the outcome of the application. Although the third respondent
was represented at the hearing of the application, no submissions
were made and nothing further need be said about its involvement. As
a result, I shall refer to the first and second respondents,
where
they are dealt with jointly, simply as ‘the respondents’.
The matter came before me as an urgent opposed application
on 15
February 2012. Counsel for both the applicant and the respondents
requested that I make an order on that occasion, even
if reasons
could not be given at the time, since the Traditional Council
Elections were scheduled to be held on 19 February 2012.
I ordered
on that day that the application be dismissed with costs. The
reasons why I made this order follow.
Traditional councils are established in this province
pursuant to s 6 of the KwaZulu-Natal Traditional Leadership and
Governance
Act 5 of 2005 (the KZN Act). This provides that, except
in specified circumstances, women must make up at least one-third of
the members of each council. The
Inkosi
of the traditional
community selects 60 percent of the members. Section 6(3)(b) of
the KZN Act provides as follows:
‘
[T]he remaining members of that traditional
council, who must constitute 40 percent thereof, must be elected from
other members
of that traditional community, in a democratic manner,
at an
imbizo
specially convened for that purpose, and called by
Inkosi
concerned’.
The Act does not further specify how elections are to be
held and who should be included on the voters’ roll but
provision
is made for Regulations to be promulgated in this regard.
It is clear from the notice of motion that the
substantive relief sought was twofold; namely a declaration of
rights and an interdict
based on that declaration of rights. In
application proceedings, the affidavits form both the pleadings and
the evidence.
1
The Notice of Motion sets out the relief claimed which
flows from the pleadings and evidence. As such, any party opposing
those
proceedings is entitled to address only those issues pleaded,
namely, those raised in the affidavits which support the relief
claimed in the Notice of Motion. It should be said that the founding
affidavit, after setting out a history of objections by the
applicant to the procedures adopted by the respondents for the
traditional council elections, contained largely legal assertions
with very little evidence of events that had taken place, other than
the exchange of correspondence.
Part C of the KwaZulu-Natal Traditional Leadership
Regulations of 2006 promulgated under the KZN Act deals with
elections. Both
sets of counsel agreed that the crisp issue in the
matter related to the interpretation of Regulation 25(2). Regulation
25 is
headed ‘Registration of voters and compilation of the
voters’ roll’ and reads as follows:
A voters’ roll must be compiled by the Department for each
voting station before the date of the elections is proclaimed
by
the MEC: Provided that the voter registration must be conducted
per
isigodi
in each traditional community
.
The Department must, in compiling a voters’ roll, take into
account the provisions of Chapter 2 of the
Electoral Act.
>
The voters’ roll compiled in terms of sub regulation (1)
above must be certified by the MEC on the date contemplated
on
the election time table.
In particular, what is in issue is what is meant by the
words in sub paragraph (2) ‘must… take into
account’.
The case made out by the applicant appears from a
number of places in the papers. The first is in paragraph 36 of the
founding
affidavit where the applicant states that a letter sent by
his attorney drew to the attention of the first respondent ‘that
the provisions of the Regulations and the
Electoral Act had
not been
complied with concerning the publication and notice requirements of
the voters’ roll…’ The second
is in paragraph 40
of the founding affidavit where the applicant says the following:
‘…
I am informed that the fact that
the Regulations refer to chapter 2 of the
Electoral Act means
that
the voter registration process must follow the same procedure as set
out in the
Electoral Act.’
Further
averments are made in paragraph 47 of the
founding affidavit to the following effect:
‘
This further demonstrates the failure of
the Respondents adequately to educate and encourage voter
registration for the elections.
Without such education and without
following the lawful process as envisaged in chapter 2 of the
Electoral Act, the
2012 elections will not be legitimate, and will
not be democratic.’
The failure by the respondents to apply ss 14(2), 15 and
16 of the Electoral Act 73 of 1998 (the
Electoral Act), which
fall
within chapter 2, is then criticised. All of this is consonant with
the specific relief sought which, both in the declaratory
relief and
the interdict, claim relief because the respondents have not
complied, inter alia, with chapter 2 of the
Electoral Act.
It
is clear therefore that the case made out by the
applicant on the founding papers is that the provisions of chapter 2
in general,
and
ss 14(2)
,
15
and
16
in particular, of the
Electoral Act must
be applied in order to give effect to
Regulation
25(2).
This was the narrow case which the respondents address in the
answering affidavit. There they dispute the legal contentions made
by the applicant in paragraph 36. They also dispute the averments
contained in paragraphs 40 and 47 of the founding affidavit
as well
as that the provisions of the
Electoral Act ‘prescribed
the
procedure to be followed’ as is claimed by the applicant. The
deponent indicates that the second respondent took into
account the
provisions of chapter 2 of the
Electoral Act but
that ‘the
rigid requirements of Chapter 2 were seen as being inappropriate to
this kind of election’. On a conspectus
of the answering
affidavit, it is clear that the respondents deal only with the case
made out by the applicant in the founding
papers. They do not
attempt to define what is meant by the relevant words in
Regulation
25(2).
This is because, on the pleadings, they were not required to
do so. They were called to answer to the application and
deliberately
tailored their opposition accordingly.
In argument, counsel for the applicant made much of the
failure of the respondents to take steps to provide for an objection
procedure
to the voters’ roll on the basis that such a
procedure is provided for in
ss 14
and
15
of the
Electoral Act. It
may be that the words ‘must…take into account’
will ultimately be held to require some form of specified procedure
to object to the voters’ roll but that was not the question
before me and I specifically decline to decide it. As I have
already
mentioned, the respondents, as they were entitled to do on the
papers, do not attempt to specify what is meant by those
words or
even what they understand is meant by them. They do set out the
background and context and aspects of the Traditional
Council
Election which they contend is unique to an election of this nature.
All that I was called on to decide in this application,
therefore,
was whether those words mean that chapter 2 of the
Electoral Act
must
be applied to the compilation of the voters’ roll or
whether something less than the application of that chapter is
intended.
There are certain conflicting provisions relating to
the compilation of a voters’ roll in chapter 2 of the
Electoral Act and
in the Regulations. In the first place,
s 5
of the
Electoral Act provides
that the chief electoral officer much
compile and maintain a national common voters’ roll whereas
Regulation 25(1)
requires the second respondent to compile a
voters’ roll for each voting station. Secondly, the persons
who qualify to
vote differ since
Regulation 20(1)(b)
requires
that the voter be a resident of the traditional community concerned
which does not find echo in
s 6
of the
Electoral Act.
Counsel for the applicant conceded in argument that,
where there is already provision in the regulations relating to
matters of
compiling the voters’ roll, that must prevail over
similar provisions in the
Electoral Act where
they are not
identical. This is an obvious and correct concession but it
immediately means that the case relied on by the applicant
on the
papers was not made out. On any interpretation of statutes approach,
in any event, if the legislature had meant the provisions
of chapter
2 to apply
mutatis mutandis
to elections of traditional
councils, it would have said so rather than require only that the
provisions of the chapter be ‘taken
into account’.
Counsel submitted that the case made out is that
ss 14(2)
,
15
and
16
of the
Electoral Act should
apply. This case is not, however,
reflected in the founding affidavit and Notice of Motion. In any
event, the reference in
Regulation 25(2)
is not to these
sections but to chapter 2 as a whole. As counsel for the respondents
submitted, to require compliance with these
sections only is
arbitrary, contrary to principle and contrary to the case which the
applicant attempted to make out on the papers.
Even if the fallback
submission by the applicants can be considered, this was to the
effect that the words mean that where there
is no specific provision
in the regulations, the provisions of chapter 2 will apply. The
difficulty with this submission is twofold.
First, it was not the
case relied upon and answered to by the respondents. Secondly, if
the regulations intend this, they would
be formulated to say so.
Instead they say that the second respondent must ‘take into
account’ chapter 2, not apply
it where the Regulations make no
specific provision for matters dealt with in chapter 2. Again, on a
basic approach to the interpretation
of statutes, it follows that
‘take into account’ means something less than the
straightforward application of chapter
2 of the
Electoral Act, even
where the regulations do not themselves contain provisions similar
to those in chapter 2.
As I have said above, if the case of the applicant was
that this meant something less than the application of chapter 2,
this
should have been made out on the papers. If that were done, it
may have been possible to argue that the manner in which the
respondents
went about the compilation of the voters’ roll did
not ‘take into account’ the provisions of chapter 2.
That
was not the issue before me and I therefore cannot, and do not,
decide that question. At least one reason for not doing so is that,
if the issue had been formulated in that fashion on the papers, the
respondents may well have put up a fuller answering affidavit
dealing with those contentions. As I have already said, it is quite
clear that the respondents consciously limited their answering
affidavit to the specific case set up by the applicant. There is
therefore no basis for finding that the pleadings have been
broadened to include that issue. The attack on the failure of the
respondents to apply the provisions of chapter 2 of the
Electoral
Act must
therefore fail.
The second substantive point relied on by the
respondents was that
Regulation 25(3)
requires that the voters’
roll must be certified by the MEC on the date contemplated on the
election timetable and that
no date for such certification was
provided for and no such certification has therefore taken place. It
must be said that this
argument was advanced with considerably less
force than that based on chapter 2 of the
Electoral Act. The
founding papers even concede that in the language of the
Regulations, publication of the timetable is permissive rather than
peremptory. The answer given by the respondents in the answering
affidavit is that the certification of the voters’ roll
took
place on 21 November 2011 and that the election timetable was
published on 22 November 2011. Regulation 19(2) provides that
the
‘proclaimed day and date of the election must be published in
the
Gazette
allowing at least sixty days for compliance with
the election timetable’. This is the only publication
required. Regulation
25(1) provides that the voters’ roll must
be compiled before the date of the election is proclaimed. The
respondents submitted
that, if the voters’ roll had not been
certified before the publication of the date of the elections, they
would have been
attacked as having published the date before it
could be said that the voters’ roll was properly and finally
compiled because
it had not been certified and would have been
subject to amendment. There is much force in this submission. In any
event, as
was submitted by the respondents, even if it was
notionally possible to certify after publishing the date of the
election, no
prejudice ensues by the fact that certification took
place before publication. Because certification took place
beforehand, therefore,
no date for certification needed to be
mentioned in the timetable. This ground of attack of the applicant
must therefore also
fail.
Even if I am wrong on the point regarding
certification, the relief sought in both the declaration and
interdict required a finding
that the applicant had proved both
grounds of attack. Because the first ground dealt with in this
judgment was manifestly not
proved, the relief sought could not be
granted.
The respondents raised a number of points
in limine
such as the non-joinder of the Traditional Councils, that the
applicant had a domestic remedy which had not been exhausted and
that the applicant was himself to blame for the urgency with which
the application was brought. Although such points are normally
dealt
with at the outset of a judgment and, only if the applicant passes
these hurdles is the substantive case addressed, I do
not see that
approach as appropriate in these circumstances. Here the substantive
case was clearly not made out and the substance
of the application
deserved to be dealt with. As a result, this judgment should not be
construed as deciding these points one
way or the other.
For these reasons, the application was dismissed with
costs.
DATE OF HEARING: 15 February 2012
DATE OF JUDGMENT: 2 March 2012
FOR THE APPLICANT: V Gajoo SC and D Tobias, instructed
by
Lourens de Klerk Attorneys, locally represented by Hay
and Scott Attorneys
FOR THE FIRST AND
SECOND RESPONDENTS: AJ Dickson SC, instructed by PKK
Attorneys
FOR THE THIRD
RESPONDENT: VE Nkosi, attorney of Shepstone & Wylie.
1
Minister
of Land Affairs and Agriculture & others v D&F Wevell Trust
& others
2008 (2) SA 184
(SCA) at 200C-E