A LAWYER representing the Basotho Democratic National Party (BDNP) on Tuesday urged the High Court to nullify the allocation of Proportional Representation (PR) seats for the present 9th Parliament.
King’s Counsel (KC) Advocate Molefi Ntlhoki Ntlhoki made the plea when addressing a panel of three High Court judges namely Chief Justice Nthomeng Majara, Justice Tšeliso Monaphathi and Justice Semapo Peete in a case in which the BDNP is challenging the allocation of 40 PR seats for the National Assembly following the 28 February snap elections.
The three judges were sitting as a Court of Disputed Returns in line with the National Assembly Elections Act of 2011.
Advocate Ntlhoki’s complaint was the Independent Electoral Commission (IEC) erred by excluding the votes of independent candidates when calculating the PR seats.
He submitted the exclusion of the votes resulted in a calculation based on incorrect figures, which disadvantaged the BDNP.
“Our complaint is very simple. We are saying after the elections when it came to the allocation of seats, the first respondent (IEC) did not apply the formula as required by the law.
“If there were valid votes cast for independent candidates, they should have been included in the total votes to allocate the PR seats.
“For instance, it is not disputed that Mr (Timothy) Thahane came second (with 1715 votes) after the All Basotho Convention (with 3 143 votes), yet his votes were not included in the national total votes for the calculation of PR seats.
“It is wrong to exclude such numbers because it’s from the total votes that a quota for calculation and allocation of PR seats is obtained,” Advocate Ntlhoki said.
The lawyer also said the regulation, which dictates the formula for PR seats allocation, should be declared inconsistent with the spirit of the electoral law because it leaves out valid votes.
However, IEC lawyer Karabo Mohau (KC) said his clients operated in terms of the schedule of the law that dictates how PR seats should be allocated.
He also said the court had no powers to nullify such as law.
“This honourable court has no powers to grand the prayer that challenges the correctness of Schedule Three,” he said.
Deputy Attorney General Tsebang Putsoane also said the IEC acted within the confines of the law in the seats allocation.
According to Advocate Putsoane, it would not be proper for the court to order the office of the Attorney General and Parliament to draft a Bill that cancels the present law regulating the allocation of PR seats.
On his part, Democratic Congress (DC) lawyer, Salemane Phafane (KC) urged the court to dismiss the case on the grounds his clients were served with court papers 29 days after the stipulated time.
Advocate Phafane argued the law stipulates that the complaint should be lodged and served to the respondents within 30 days after the announcement of the results.
“My clients were only served on the 18th of May, which is 59 days after the announcement of the election results.
“On this ground alone, this application must be thrown out,” he said.
However, Justice Majara postponed the case to 24 September this year for judgment.
In addition to the IEC, the Speaker of the National Assembly, Minister of Law, Constitutional and Parliamentary Affairs, Attorney General, all political parties that contested the 28 February 2015 national elections and 40 PR MPs have been cited as respondents in the case.