Court reserves judgement in Ongwediva Swapo case

THE High Court yesterday extended an interim order preventing Swapo from arbitrarily replacing elected councillors at Ongwediva with people hand-picked by the ruling party’s Politburo.

Acting Judge Kato van Niekerk reserved judgement until Monday in order to study arguments from lawyers representing four people elected in the May municipal polls as well as Swapo’s legal team. Lawyers returned to court yesterday after an interim interdict was issued at the 11th hour last week, blocking the Politburo’s hand-picked nominees from being sworn in as councillors.The application was brought by Angelina Amushigamo, Samuel Nanguti, Nangolo Auala and Johnny yaKanandjembo.Swapo head office, at the urging of the previous Ongwediva councillors, removed the four and had planned to install former Mayor Erastus Uutoni, Patricia Kashuupulwa, Angelina Angula and Isak Ndokosho last week Thursday.Dave Smuts argued that his clients, the four applicants, “were entitled to be sworn in” after they had been properly nominated by Swapo structures and then elected.Swapo won all seven seats on the council.The applicants said they had received letters telling them that they were no longer councillors but were not provided with reasons.Smuts seized on a technicality by arguing that the section of the Local Authorities Act on which Swapo relied to remove the elected officials did not apply.Section 13 (g) states that a councillor shall vacate office if “withdrawn by the political party, association of organisation which nominated him or her for election”.”This section does not even arise,” said Smuts.”You cannot vacate an office until you have occupied the office [ and] you cannot occupy office until you have been sworn in.”He said Swapo should allow the elected councillors to be sworn in and thereafter try to remove them if they wanted.Gerson Hinda, appearing for Swapo, hit back by saying that section nine of the same legislation stated that the term of office of a councillor started from the time the person had been elected.But Smuts countered that Hinda’s argument would render provisions of the Act which require a person to be sworn in before taking up office, as useless.Smuts said it would be “a rather curious provision” in the law if a party could parade candidates before an election and change them substantially without reason as Swapo appeared to have done.He said voters went to the polls “on the assumption that these are the candidates you will elect in this order”.”They voted in terms of that list.That’s why you cannot chop and change that because you undermine the entire process.”It’s an act of cynicism and abuse of legislation to start, soon after elections, to replace the majority of the candidates.”Smuts raised what he called “fundamental questions of elections in a democracy”.He asked that if the court could not uphold the appeal to set aside the Swapo head office’s interference, it should extend the interdict to allow for a review of the way the replacement of elected councillors had been done.Hinda said the applicants had not formally asked for a review.He stuck to the legal question of whether Swapo had the right to remove councillors or not.”There is no magic needed to understand the mechanisms” of the law, said Hinda.Swapo leaders reportedly removed the four councillors arguing that the northern town was well-run before and therefore needed the old people to stay on.The old councillors were elected at two Swapo gatherings, one of which was overseen by Foreign Affairs Minister Marco Hausiku and Health Deputy Minister Richard Kamwi.Hinda was instructed by attorney Dirk Conradie, of Conradie and Damaseb, while Hosea Angula of Lorentz and Bone hired Smuts to argue the case.Lawyers returned to court yesterday after an interim interdict was issued at the 11th hour last week, blocking the Politburo’s hand-picked nominees from being sworn in as councillors.The application was brought by Angelina Amushigamo, Samuel Nanguti, Nangolo Auala and Johnny yaKanandjembo.Swapo head office, at the urging of the previous Ongwediva councillors, removed the four and had planned to install former Mayor Erastus Uutoni, Patricia Kashuupulwa, Angelina Angula and Isak Ndokosho last week Thursday.Dave Smuts argued that his clients, the four applicants, “were entitled to be sworn in” after they had been properly nominated by Swapo structures and then elected.Swapo won all seven seats on the council.The applicants said they had received letters telling them that they were no longer councillors but were not provided with reasons.Smuts seized on a technicality by arguing that the section of the Local Authorities Act on which Swapo relied to remove the elected officials did not apply.Section 13 (g) states that a councillor shall vacate office if “withdrawn by the political party, association of organisation which nominated him or her for election”.”This section does not even arise,” said Smuts.”You cannot vacate an office until you have occupied the office [ and] you cannot occupy office until you have been sworn in.”He said Swapo should allow the elected councillors to be sworn in and thereafter try to remove them if they wanted.Gerson Hinda, appearing for Swapo, hit back by saying that section nine of the same legislation stated that the term of office of a councillor started from the time the person had been elected.But Smuts countered that Hinda’s argument would render provisions of the Act which require a person to be sworn in before taking up office, as useless.Smuts said it would be “a rather curious provision” in the law if a party could parade candidates before an election and change them substantially without reason as Swapo appeared to have done.He said voters went to the polls “on the assumption that these are the candidates you will elect in this order”.”They voted in terms of that list.That’s why you cannot chop and change that because you undermine the entire process.”It’s an act of cynicism and abuse of legislation to start, soon after elections, to replace the majority of the candidates.”Smuts raised what he called “fundamental questions of elections in a democracy”.He asked that if the court could not uphold the appeal to set aside the Swapo head office’s interference, it should extend the interdict to allow for a review of the way the replacement of elected councillors had been done.Hinda said the applicants had not formally asked for a review.He stuck to the legal question of whether Swapo had the right to remove councillors or not.”There is no magic needed to understand the mechanisms” of the law, said Hinda.Swapo leaders reportedly removed the four councillors arguing that the northern town was well-run before and therefore needed the old people to stay on.The old councillors were elected at two Swapo gatherings, one of which was overseen by Foreign Affairs Minister Marco Hausiku and Health Deputy Minister Richard Kamwi.Hinda was instructed by attorney Dirk Conradie, of Conradie and Damaseb, while Hosea Angula of Lorentz and Bone hired Smuts to argue the case.