Mmegi Blogs :: Election petitions – Part 2
Banners
Banners
Banners
Banners
Last Updated
Wednesday 16 January 2019, 00:18 am.
Banners
Election petitions – Part 2

This week we wind up our discussion on election petitions. We start off with asking the question as to who bears the expenses of election petitions.
By Kgosietsile Ngakaagae Fri 26 Oct 2018, 12:54 pm (GMT +2)
Mmegi Blogs :: Election petitions – Part 2








The reasonable expenses incurred by any person appearing to give evidence at an election petition, may be paid to such a person.

Such expenses are deemed to be and are recoverable as costs of the petition.

This means that they are recoverable against the losing party at the end of the hearing.

You will note that there is a full blown trial to which parties may call witnesses to support their cases.  In terms of Section 130 of the Electoral Act, on the trial of an election petition whereby the complaint is that someone was unduly elected, or that there has been an undue return, therefore claiming the seat for some other person, evidence may be given to prove that the election of that person was undue, in the same manner as if the respondent had presented an election petition complaining of such election.  It is conceivable that a party who filed a petition may have second thoughts about, and seek to withdraw it.

An election petition shall, however, not be withdrawn without the permission of the High Court.  The petitioner must apply to have their matter withdrawn.  The court may order that notices of the withdrawal be issued to the public or to interested persons.

Section 132 of the same Act suggests that a withdrawal of a petition must be done formally by way of notice of motion. 

Notice of Motion is a formal procedure that lawyers use to bring Applications before the High Court. Where possible, therefore, you would be advised to use a lawyer to launch a petition and not to attempt to do it as a self-actor.   When one withdraws a petition, another interested party may be substituted and may take their place. Such person may include, for example, any person who might have been a petitioner in respect of the election to which the election petition relates.

The reasons for this formal, and rather elaborate requirement for withdrawals appears, in part, in Section 133 of the Act. 

If, in the opinion of the Court, the person withdrawing the petition was induced by any corrupt bargain or reward, it may order that the security given on behalf of that person, who was corruptly influenced to withdraw, shall remain as security for any costs that may become payable by the substituted petitioner and that the original petitioner shall be liable to pay such costs.

The very drastic measure taken above is important. The law will not allow corrupt bargaining on election outcomes. Nor will it permit the sale of political office to the highest bidder.  The legitimacy of governments and of candidates

Banners

must be beyond reproach.

If however, no order is given to retain the security given on behalf of the original petition, security to the same amount as would be required in the case of a new election petition, shall be given on behalf of the new petitioner within 14 days after the order of substitution.

The new petitioner shall stand in the same position, and shall be subject to the same liabilities, as the first petitioner whose place they took.   Where an election petition is withdrawn, the petitioner shall be liable to pay the costs of the respondent.

When there is more than one petitioner, an application to withdraw a petition can only happen with the consent of all the other petitioners.  An election petition shall be terminated by the death of a sole petitioner or of all the petitioners, as the case may be. The estate of the deceased petitioner, shall, however, be liable to pay costs already incurred. 

On termination of an election petition, any person who might have been a petitioner in respect of the election to which the petition relates may, within 21 days, apply to the High Court to be substituted as a petitioner, and the Court may, if it thinks fit, substitute as a petitioner anyone, who desires to be substituted.

A respondent who has given notice that he does not intend to oppose an election petition shall not, without the permission of the High Court, be allowed to have a role, in the petition proceedings and shall not sit, or vote in the National Assembly, pending the result of the trial of the election petition.

The Court is obligated, in all cases in which such a notice has been given, to report the same to the Speaker.

In terms of Section 138, all costs, charges and expenses of and relating to the presentation of an election petition, and to the proceedings consequent thereon shall, be paid by the parties to the petition in such manner and in such proportions as the High Court may decide.  The costs may be recovered in the same manner as the costs of civil proceedings.

If any petitioner has failed, after the lapse of one month, following demand, to meet the expenses of witnesses, every person who undertook the obligations of a surety, relating to the petition, shall be held to have defaulted on his undertaking  and the Registrar of the High Court and execution may thereupon be made against their property.

We continue with voter education in the next instalment.

Subscribe to our Newsletter
Banners
Banners
Banners


Chief On Friday
Fri 26 Oct 2018, 12:54 pm
Fri 19 Oct 2018, 15:27 pm
Fri 12 Oct 2018, 13:05 pm
Fri 28 Sep 2018, 13:27 pm
Fri 21 Sep 2018, 15:09 pm
Fri 14 Sep 2018, 13:25 pm
Fri 07 Sep 2018, 12:08 pm
Fri 31 Aug 2018, 13:10 pm
Fri 24 Aug 2018, 11:27 am
Fri 17 Aug 2018, 12:42 pm
Fri 10 Aug 2018, 12:43 pm
Fri 03 Aug 2018, 13:19 pm
Fri 27 Jul 2018, 13:48 pm
Fri 20 Jul 2018, 15:59 pm
Fri 13 Jul 2018, 15:17 pm
Fri 06 Jul 2018, 14:07 pm
Fri 29 Jun 2018, 15:43 pm
Fri 22 Jun 2018, 13:55 pm
Fri 15 Jun 2018, 12:36 pm
Fri 01 Jun 2018, 13:29 pm
Fri 25 May 2018, 14:11 pm
Fri 18 May 2018, 15:33 pm
Fri 11 May 2018, 15:00 pm
Fri 04 May 2018, 13:42 pm
Fri 27 Apr 2018, 13:40 pm
Banners
Banners
Subscribe to our Newsletter
have a story? Send us a Tip
Banners
  • Previous
    Elliot the Littlest Reindeer
    Next
    Masa Centre
    ::: Tuesday 15 Jan - Thursday 24 Jan :::
    Elliot the Littlest Reindeer
    Bohemian Rhapsody
    Final Score
    Aquaman
    Second Act
  • Previous
    Robin Hood
    Next
    Riverwalk
    ::: Tuesday 15 Jan - Thursday 24 Jan :::
    Robin Hood
    Aquaman
    Second Act
    Elliot the Littlest Reindeer
  • Previous
    Final Score
    Next
    Gamecity
    ::: Tuesday 15 Jan - Thursday 24 Jan :::
    Final Score
    Second Act
    Robin Hood
    Aquaman
    Bumblebee
    Spider-Man: Into the Spider-Verse
Selefu
Get him!
Banners
Banners