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

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.’

‘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.

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.

1Minister of Land Affairs and Agriculture & others v D&F Wevell Trust & others 2008 (2) SA 184 (SCA) at 200C-E