By Nat Molomo
MASERU — An appeal challenging the decision of High Court to nullify the election victory of the winning candidate in the Tele Constituency was heard on Monday.
The appeal, heard by a five-person bench consisting of Justices of the Court of Appeal; Douglas Scott, Ian Farlam, Craig Howie, Wilfred Thring and Nthomeng Majara of the High Court, is a sequel to the May 2012 parliamentary elections.
It comes after the judgment delivered by Justice Teboho Moiloa, and concurred to by Justices Semapo Peete and Lebohang Molete, in the High Court.
The applicant in the High Court, Doreen Chaoana-Mapetja, a national assembly election candidate of the Lesotho Congress for Democracy (LCD), had alleged that voting at one of the polling stations in the Tele constituency was riddled with “malpractices and irregularities”.
Lodged by Ndiwuhleli Ndlomose, a candidate of the main opposition Democratic Congress (DC) who won the election in the Tele constituency N0.64, the appeal seeks to reverse the judgment of the High Court, which was in favour of Chaoana-Mapetja.
Chaoana-Mapetja had approached the court for an order seeking to declare the election of the appellant (Ndlomose) as invalid, and setting aside the election in that constituency and “directing a fresh election to be held”.
Mapetja had complained, among other issues, of a number of malpractices which were allegedly committed at the Maleka-Tsekoa voting station.
Mapetja had alleged that people who were assisted to vote did not qualify to be assisted in terms of the provisions of section 85 read with section 86 of the electoral law.
In the High Court it was alleged that among some of the acts complained of by the applicant, was that even persons without disabilities were assisted to vote, and that one member of the local community council (Lebohang Moiloa) had in his possession voters’ cards of several people and he approached these people to deliver their cards as they were queuing vote.
On behalf of the appellant counsel Qhalehang Letsika submitted that the respondent (Mapetja) had failed to discharge the burden that rested on her.
“She failed to establish an illegal practice as contemplated under the provisions of the Electoral Act,” Letsika submitted.
He argued that the result of this is that it deprived the High Court of the power to make an order envisaged within the provisions of that Act.
He said this is because the provisions of section 130 (4) automatically come into place the moment a petitioner in the position of applicant “fails to meet the requirements of section 130 (2) and (3) (a)”.
He submitted that the high court erred and misdirected itself in vitiating the election result of Maleka-Tseka when the irregularities complained of were not “such that they affected the election result”.
Letsika also said, but for assistance given to voters, there is nothing to show to voters that the respondent “would emerge as the successful candidate”, and that there was no evidence to point something close to criminal acts envisaged within the provisions of the law.
He asked the court to allow the appeal with costs.
Advocate Motiea Teele KC, submitting on behalf of the respondent, (Mapetja) contended that the conduct of the party agents concerned the possession of cards and Somsoeu communicating with voters and causing one person by the name of Limakatso to be assisted contrary to section 86 of the electoral law are “acts which can be attributed to the candidate”.
Teele submitted that since the act of the party agent is the act of the party candidate, the misconduct of the agents should be dealt with under section 130 (2) (a) of the electoral Act.
“It is accordingly submitted that the court aquo was correct in the granting of the petition as prayed,” he said.
On the conduct of the voting station manager, Teele submitted that his conduct was not only non-compliance, or irregular procedure, “but was a total disregard of the law”.
As a result, he said: “The election at that polling station was not conducted in accordance with the Act.”
Teele contended that in such a case the election is vitiated irrespective of whether the result was affected or not.
Teele argued that even if they were wrong that the voting station manager did conduct the election in substantial compliance with the Act, which is still denied, he said the result was affected.
“The petitioner has proved more than what is required under section 130 (4) of the Act,” he submitted, adding that alternatively the petitioner had proved that the result could have been affected.
“It is respectfully submitted that the present appeal has no merit and has to be dismissed,” he concluded.
The judgment will be delivered on October 18.
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