Marais and Another v McIntosh and Another

• Jurisdiction: South Africa
• Judge: Leon J, Van Heerden J and Hoexter J
• Judgment Date: 22 February 1978
• Citation: 1978 (3) SA 414 (N)
• Hearing Date: 10 February 1978
• Court: Natal Provincial Division

Leon J:

By virtue of Procl 261 which was issued in terms of s 35 (1) of C the Electoral Consolidation Act 46 of 1946, 30 November 1977 was fixed as the date upon which any necessary polls would be held in respect of the election of members of the House of Assembly and members of the Provincial Councils in a general election for such members consequent upon the D dissolution of the House of Assembly and the Provincial Councils.

McIntosh, Marais, Jonsson and Oliver were duly nominated as the member of the House of Assembly for the electoral division of Pinetown, and Jones, Dugmore and Brink, as candidates for the election as the member of the Provincial Council for that division.

After the conclusion of the polling and the counting of votes consequent E thereon, the returning officer for the electoral division declared Marais to be duly elected as the member of the House of Assembly for the division, and Jones to be duly elected as the member of the Provincial Council of the division.

The respective candidates received the following number of votes:

1.

In respect of the election F for the House of Assembly Marais 4 346, McIntosh 4 038, Jonsson 2 635 and Oliver 160.

2.

In respect of the election for the Provincial Council Jones 3 964, Dugmore 3 786 and Brink 3 364.

On 6 January 1978 McIntosh brought an election petition against Marais, G Jones and the returning officer based upon certain alleged illegal practices. He sought an order, inter alia, that the election of Marais and Jones be held to be void.

By notice of motion dated 25 January 1978 Marais and Jones filed a notice of objection in terms of s 144 (1) of Act 46 of 1946 in which they sought orders in the following terms:

"(a) (i)

It is declared that the suretyship of which annexure 'A' to the first applicant's H affidavit filed herein is a copy, does not constitute compliance by the first respondent and the sureties with the provisions of s 142 (d), (e) and (f) of Act 46 of 1946;

(ii)

the said suretyship is set aside.

(b)

The first respondent's petition in case M13/1978 in this Court is dismissed.

(c)

The first respondent is ordered to pay the first and second applicants'

Leon J

costs.

(i)

in the proceedings brought by the said petition and

(ii)

in these proceedings,

A such costs to include the costs incurred consequent upon the employment of two counsel.

In the alternative to paras (a), (b) and (c):

(d)

It is declared that the suretyship entered into in respect of case M13/1978 in this Court, of which the said annexure 'A' is a copy, is invalid or defective within the meaning of s 144 (1) of Act 46 of 1946.

(e)

The first respondent is, in B terms of s 144 (3) of Act 46 of 1946, allowed 10 days within which to deposit with the Registrar of this Court, the sum of R15 000 in cash as security in respect of the said case M13/1978.

(f)

The first respondent is C ordered to pay the costs of this application, including the costs incurred consequent upon the employment of two counsel."

This judgment is in no way concerned with the merits of the election petition itself but only with the orders sought by Marais and Jones and which are referred to above.

D The election petition was accompanied by a notice. In that notice the names and addresses of McIntosh's sureties were given as:

1.

Cecil Nathan, 801 Crescent Gardens, Loop Street, Pietermaritzburg.

2.

Julian von Klemperer, 44 Old Howick Road, Pietermaritzburg.

E On 11th January 1978 McIntosh caused to be filed with the Registrar of this Court a document annexure "A" bearing the heading "Suretyship" and signed before the Registrar by Cecil Nathan and Julian von Klemperer. In this document Nathan and Von Klemperer bound themselves

"as surety jointly and severally in solidum and co-principal debtors for the due payment by Graham Brian Douglas McIntosh to the respondents for payment of all costs and expenses in this matter for which the said F petitioner may be held liable, up to the maximum amount of R2 000."

It is common cause that McIntosh himself has neither entered into nor signed any such recognizance either in the presence of the Registrar or a magistrate, or at all, it is also alleged by Marais and Jones (but G disputed by McIntosh) in his answering affidavit, that no security whatsoever has been given by McIntosh or the two sureties to any person or persons mentioned in s 142 (d) (1) of the Act.

It is Marais' and Jones' case that:

(1)

McIntosh has failed to comply with the provisions of s 142 (d), 142 (e) and 142 (f) of the Act;

(2)

the provisions of s 142 (d), (e) and (f) are H imperative and peremptory;

(3)

the provisions of s 144 of the Act are not applicable to a case such as this as McIntosh has not entered or even purported to enter into the required recognizance;

(4)

the suretyship annexure "A" which was entered into was irregular and should be set aside;

(5)

McIntosh's petition falls to be dismissed by reason of his failure to comply with the provisions of s 142 (d), (e) and (f) of the Act.

Leon J

In the alternative it is Marais' and Jones' case that:

(1)

the suretyship is invalid and defective by virtue of the failure to comply with the provisions of s 142 (d), (e) and (f) of the Act;

(2)

the notice of motion also A constitutes objections by Marais and Jones in terms of s 144 (1) of the Act;

(3)

the objections should be allowed and this Court should:

(i)

declare the suretyship to be invalid or defective;

(ii)

allow McIntosh a further seven days to remove the objection by a deposit with the Registrar of R15 000 (or such other sum as B may be deemed proper) in cash or security.

In regard to the amount of security that should be provided, Marais' and Jones' attorney has sworn to an affidavit in which he says that, if the election petition is to proceed to trial, he estimates that it will be necessary to call between 50 and 60 witnesses. He believes that the trial will last not less than 15 days and that the party and party costs will C amount to not less than R15 000.

In his answering affidavit Mclntosh has said that he believed that the...