The Court of Appeal (CoA) says a determination on a prospective voter’s principal residence for purposes of registration should not be made based on his or her subjective view of what his or her principal place is.
A panel of CoA justices led by Isaac Lesetedi, Monametsi Gaongalelwe, Singh Walia, Zibani Makhwade and Leatile Dambe have unanimously agreed that the question of whether a residence is a principal one for purposes of Section 67(3)(a) of the Constitution, is primarily to be determined on objective facts.
The justices were making a decision on an appeal by Mothusi Maribe. He is challenging a High Court decision in a case in which he is objecting that Member of Parliament for Sefhare/Ramokgonami Dorcas Makgato registered herself as a voter for a constituency in which she did not have a principal residence.
The matter was referred to the High Court from Mahalapye Magistrate’s Court for interpretation of Section 67 of the Constitution.
In the grounds of appeal, Maribe contends that the High Court misdirected itself and erred in law and in fact in determining in Makgato case that principal residence basically means a voter’s most important place of residence.
Maribe also queries the High Court’s conclusion that: “the principal residence under section 67 (3) of the Constitution means that prospective voters are entitled to select which of their several residences they deem most important for purposes of registering for elections.”
He is of the view that the High Court erred in law by determining that Makgato has clearly established through her affidavit, her historical, social, cultural sentimental and family bonds and that explains why she registered to vote thereafter.
His appeal succeeded in part on Friday, with the CoA justices agreeing with him that the High Court erred in considering and determining, or purporting to determine questions of fact and in finding that the subjective view of the prospective voter on what was his or her principal place of residence was to be preferred in all cases to objective evidence to the contrary led by the objector.
When handing down the judgement and remitting the matter back to Mahalapye Magistrate’s Court for final determination, justice Lesetedi said the subjective factor should prevail only where a court cannot on the facts before it decide which of the residences is the principal one.
“A court will not readily make findings that a particular place is not a principal place of residence except where on any view of the facts, the prospective voter’s choice of residence as the principal one is unsustainable. In the final analysis what constitutes a principal residence is a question of fact to be determined on a conspectus of the material available before the magistrate’s court,” he said.
The justices further ruled that the principal residence must be independently identifiable from ascertainable objective facts and where the ascertainable facts points to a different direction from what the voter asserts to be what he or she considers to be the principal residence, the objective facts must prevail in the making of a determination.