MASERU — Main opposition Democratic Congress (DC) MP for the Tele constituency Ndiwuhleli Ndlomose, is set to be reinstated after winning an appeal validating his election. Ndlomose was disqualified as an MP in April after the High Court ruled that his election victory at the May 2012 poll was fraught with irregularities that violated electoral laws.
But the Court of Appeal has confirmed Ndlomose’s election. There were three DC constituencies which coalition parties were eyeing to enhance their numbers in the National Assembly. The Appeal Court ruling leaves two up for grabs. By-elections for Thaba-Moea and Thaba-Phechela constituencies are scheduled for February next year, after the deaths of MPs for the two constituencies in April and this month, respectively.
The Court of Appeal on Friday nullified the High Court ruling and ordered that in terms of the National Assembly Electoral Act 14 of 2011, that the registrar of the High Court is to “cause a copy of this order to be delivered to the IEC and the Speaker of the National Assembly”. In June 2012 Doreen Chaoana-Mapetja, a national assembly election candidate for the Lesotho Congress for Democracy (LCD), challenged Ndlomose’s victory on grounds of alleged misconduct, said to be in violation of the electoral laws.
But acting President of the Court of Appeal, Justice Douglas Scott, sitting with four other judges namely; Justices Craig Howie, Ian Farlam, Wilfred Thring and Nthomeng Majara, dismissed the ruling of the High Court. “It follows that in my view the respondent (Chaoana-Mapetja) failed to discharge the burden of satisfying the court that the misconduct or the failure to comply or irregularity in compliance with the procedure could reasonably have affected the result,” he said.
Justice Scott upheld the appeal with costs and dismissed the petition with costs. Ndlomose had beat Doreen Chanoane-Mapetja in the May 26 2012 general elections in the constituency by 2 270 votes to the LCD candidate’s 2 256, a margin of a mere 14 votes. However, the LCD candidate cried foul complaining among other things, that there were irregularities in the Maleka Tsekoa Primary School voting station.
Mapetja had complained that the station manager Leopa Ntsibolane, had permitted voters to be assisted to vote. The voters in question did not qualify for assistance in terms of the provisions of section 86 of the electoral law, as they were neither blind nor physically handicapped, Mapetja argued. After the LCD candidate successfully persuaded the court to declare “invalid and set aside the election of the first appellant” in the Tele constituency, Ndlomose took the matter on appeal.
Some of Ndlomose’s grounds of appeal were that the respondent failed to establish intention to commit election offence on the part of the voting station manager, by allowing persons who requested to be assisted to vote. The High Court made an order declaring the election of the appellant invalid regardless of whether or not the misconduct would or could have affected the result. Judge Scott said in his view, the High Court order could not be upheld. He said in terms of section 130 (2) (a) the candidate or his or her agent must be “proved to have been guilty of an illegal practice.”
The Court of Appeal said there is nothing in the electoral law making the possession by a party agent or by anyone else of another’s voter registration card “an offence”.
Scott also said there no indication in the law that “that would amount to misconduct.” Attorney Qhalehang Letsika appeared for Ndlomose while Advocate Motiea Teele KC appeared for Chaoana-Mapetja.