Determine Gaolathe Election Case On Merit - Defence
Goitsemodimo Kaelo | Monday July 8, 2019 13:45
Ndadi is representing Gaolathe in a case in which one Tshenolo Palai is objecting to the Alliance for Progressives (AP) leader’s registration.
Palai wants Ndaba to be removed from the voters roll. But Ndadi told the court last Friday that the Electoral Act has rendered the decisions of magistrate’s court supreme.
Gaolathe is AP parliamentary candidate for the 2019 general elections.
However, he finds his candidature hanging by a thread, following a number of objections raised at the Independent Electoral Commission (IEC).
When arguing the matter before village magistrate Lindiwe Makgowe, Ndadi said the court is seized with a subject matter of objection against Gaolathe, similar to another one recently decided magistrate Paya, therefore his (Paya’s) order could not be reversed and remains in force.
Furthermore, Ndadi argued that while ordinarily decisions of a magistrate court are not binding on another court, “Section 99 of the Electoral Act provides that the decision of a magistrate on an objection shall be final and shall not be challenged in any proceedings”. Hence, “the difficulty that the applicant is facing is that there is an order that can not be reversed. Your worship, you are faced with an order that cannot be challenged. It is a life order. It’s an order that is alive. The Electoral Act at Section 99 provides that the decision of a magistrate on an objection shall not be challenged in any proceedings whatsoever,” he argued.In the same vein, Ndadi pointed out that the consequences on magistrate Paya’s order are binding on the IEC to recognise Gaolathe as a legitimate voter.
“If your worship were to give a different order, how would the IEC deal with two different orders pertaining to one person? With the Electoral Act, the legislators gave magistrate’s courts absolute powers, which are not enjoyed in some other proceedings. It’s a deviation from the norm,” he argued.
Similarly, he said Magistrate Paya has declared that Gaolathe has satisfied the legal and constitutional requirements of the Electoral Act.
However, Palai’s lawyer Mpho Garebatho argued that this should be treated as a fresh matter not seeking to challenge Magistrate Paya’s decision or the order objection to Gaolathe’s registration.
He argued that Section 18 of the Electoral Act confers the right to make an objection on any person whose name appears on the same voters roll.
Through the argument, he said, the magistrate should determine the case on the basis of its merit and not on an order of another court.
“The parties in this case are not the same as those in the other case which was presided over by her worship Paya. Circumstances of any particular matter are irrelevant to this case even if they are against the same subject. They are not evidence in this matter,” he argued.
He said the lawmakers have not specified the limits to which the objections should be made, so any person who appears on the voters roll could appeal against any other name that appears in the document.
Ruling on the matter will be delivered on July 18.