Roland Routh
Iuze Mukube
Raymond Heathcote, President Nangolo Mbumba’s legal representative, lyrically quoted former British prime minister Winston Churchill when he argued against a stay application in the Electoral Court yesterday.
Clearly in his element, Heathcote told the court that the Independent Patriots for Change (IPC), who argued in favour of the stay application initiated by the judges, would continue to fight a losing battle, “come hell or high water.”
He stated that they shall continue to defame the courts, and tarnish Namibia’s good name in the world on national and international airwaves.
“They shall continue with waning confidence in the Helmeringhausen hills, and while staring defeat in the face in the Namibian valleys,” he showed off poetry.
Heathcote further said they shall continue to “brutalise the truth on the beaches of Walvis Bay and Swakopmund.”
This came after judges Hannelie Prinsloo, Esi Schimming-Chase and Orben Sibeya asked the lawyers to argue whether it would not be prudent to stay the election challenge by the IPC in the High Court until the Supreme Court pronounced itself on a similar application.
Counter-attack
Senior Counsel Anton Katz, on behalf of the IPC argued strongly that since the two applications are similar in nature, it would be the obvious course of action to stay the High Court application, pending the outcome of the Supreme Court application.
He said it would be a moot exercise should the Supreme Court decide either way, as the High Court cannot override a decision by the apex court. Before the lawyers argued the stay application, however, the judges had to determine whether a security amount for costs must be provided by the IPC.
The judges determined that security is needed, despite Katz’s assertion that zero security is needed. Judge Prinsloo, who led the bench, said the High Court rules state that in the event of security, a monetary sum must be deposited with the registrar.
She ordered the IPC to provide security in the amount of N$450 000, to be divided equally between the three opposing parties: the Electoral Commission of Namibia, Swapo, and Mbumba. Sisa Namandje, on behalf of Swapo, argued that an electoral dispute must be determined without delay.
He submitted that the IPC has a hardened and unyielding position that they would not accept the outcome of the November 2024 elections. This has been apparent since shortly after the elections when IPC leader Panduleni Itula publicly declared they would not accept the election results, Namandje said.
While Katz argued that none of the respondents will suffer any prejudice if the proceedings were stayed, Namandje was adamant the whole of Namibia will be prejudiced if the challenge was not heard speedily. Katz said on the facts of this matter and the circumstances giving rise to it, it is just and equitable to stay the High Court proceedings, pending the Supreme Court outcome. He added that although the two challenges may differ slightly, the legal challenge is the same. Furthermore, Katz said it is undesirable for the Electoral Court to consider the same legal issue presently pending before the Supreme Court.
“If this court determines the application, there is a risk that this court’s decision may be at odds with the Supreme Court’s decision in respect of a challenge that concerns the same issue,” he continued. He said should the Supreme Court uphold the lawfulness of Proclamation 34 of 2024—which is disputed—the Electoral Court would be bound by the decision, and the IPC’s challenge will fall away.
However, he said if the Supreme Court concludes that Proclamation 34 is unlawful, the Electoral Court would similarly be bound by that decision, and the Electoral Court would only be required to determine the question of remedy.
Judge Prinsloo indicated that because of the intricacies of the matter, they will only deliver the ruling on the stay application on Monday, 20 January 2025 at 10h00.
The Supreme Court will hear the IPC challenge on 10 February 2025, and is expected to deliver judgement within 14 days.
-rrouth@nepc.com
mukubeiuze@gmail.com