WINDHOEK - The failure of two disgruntled members of Swapo to join other interested parties when they decided to approach the Windhoek High Court to stop the extra-ordinary Congress of Swapo slated for this weekend backfired when High Court Judge Thomas Masuku upheld an objection by the party and its secretary general Sophia Shaningwa about the non-joinder.

Mirjam Shituula and Selma Megameno Namboga, two Swapo members from the north, launched an urgent application yesterday to interdict and restrain Swapo from proceeding with its extraordinary congress scheduled for November 29 to December 02 pending the finalization of an application to declare the congress and election that took place at the congress of Swapo held in November last year as unconstitutional, unlawful and/or invalid and is set aside.    
Swapo and Shaningwa were cited as the only respondents.

However, even before the urgency or merits of the case could be heard, Judge Masuku heard arguments on the non-joinder of interested parties such as the central committee members as well as certain delegates to the Congress of last year.

Advocate Tembeka Ngcukaitobi, assisted by Advocate Slysken Makando, who appeared for Swapo and Shaningwa on instructions of Dirk Conradie argued that parties that have a vested interest in a court proceeding must be joined or else they will learn for the first time that an order has been granted when they receive the court order. 
This he said is solidly against the principle of fair justice.

In his opening remarks, Ngcukaitobi told the court that although the application is based on contrivance, he needs to address the issue of joinder separately and upfront. 

He further said that the issue of joinder must be decided in advance before the case is heard. 
“If parties that should be in court are not before court, no decisions can be made at all.” He went on to say that while it is trite that where joinder is upheld, proceedings are stayed, pending the joinder of absent parties, in this case joinder was raised in the answering papers, to afford the applicants the opportunity to join the necessary parties, but they remained steadfast in the attitude. This, he said, leave the court with only one practical answer and that is to dismiss the application with costs. 

According to him, the decision to hold a special congress in 2018 was taken at the 2017 congress by the elected delegates to that congress. Furthermore, he said, the decision to defer the amendments to the SWAPO Constitution to a special congress were taken at the 2017 congress and what is happening now affects the rights of every member of Swapo. 

He went on to say each and every delegate to the 2017 congress, elected or not, has a direct and substantial interest in the outcome of this application and should have been joined. This exclusion makes the application fatal.
Advocate Griffits Madonsela SC who appeared on behalf of the applicants instructed by Boris Isaacks argued the non-joinder of the other interested parties cannot be fatal to their application as they will be informed by the party of the court case.

Judge Masuku however upheld the objections raised by Swapo and Shaningwa, whereafter the applicants indicated to the court they are withdrawing the application, but will go ahead with the main application to have the 2017 congress declared unlawful.

Judge Masuku then issued an order that grants the applicants leave to bring a formal application to join all interested parties and postponed to December 06 for a status hearing. He also ordered that the issue of costs will stand over to the next hearing.