Marais and Another v McIntosh and Another

• Jurisdiction: South Africa

Marais and Another v McIntosh and Another
1978 (3) SA 414 (N)

1978 (3) SA p414

Citation	1978 (3) SA 414 (N)
Court	Natal Provincial Division
Judge	Leon J, Van Heerden J and Hoexter J
Heard	February 10, 1978
Judgment	February 22, 1978

Flynote : Sleutelwoorde

F Election law — Election petition — Unsuccessful candidate not complying with provisions of s 142 (e) read with s 142 (f) nor with s 142 (d) (i) of Act 46 of 1946 in furnishing security — Proceedings not a nullity — Petitioner entitled to invoke s 144 — Security to be given in cash — "Invalid or defective" in s 144 (1) — Meaning and applicability of. G

Headnote : Kopnota

In the context of the Electoral Act 46 of 1946 the true enquiry is not whether the provisions of s 142 (d) and (e) relating to the furnishing of security in an election petition are peremptory or directory but rather whether the Legislature intended that non-compliance therewith should be visited with nullity. In seeking an answer to this enquiry the Court must try to ascertain the real intention of the Legislature and in doing so must have regard to the scope and object of the enactment as a whole.

The words "invalid or defective" in s 144 (1) of the Electoral Act 46 of 1946 are of very wide import and they are wide enough to > H include the case of the petitioner himself (in an election petition) failing to enter into any recognisance.

The real object of the Legislature in both ss 142 and 144 was to ensure that proper security was provided. In the first place the petitioner is allowed to do that by a recognisance in the manner provided for in s 142. Where that is insufficiently done he must then provide cash under s 144.

In an election petition by the unsuccessful candidate the petitioner had not himself entered into a recognisance as required by s 142 (e) read with s 142 (f) of the Electoral Act 46 of 1946 and no security had been given to the persons referred to in s 142 (d) (i). The successful candidates then applied for the dismissal of the

1978 (3) SA p415

petition or, alternatively, as the security was invalid or defective in terms of s 144, that the petitioner be given 10 days to deposit a cash amount with the Registrar as security.

Held, that the failure to comply with s 142 did not visit the proceedings with nullity.

Held, further, that the objection had to be dealt with under s 144. Accordingly the alternative order should be granted. A

Case Information

Application for a declaratory order that the security given in an election petition did not comply with the provisions of the Electoral Act 46 of 1946 and alternative relief. The facts appear from the reasons for judgment.

W H Booysen SC (with him C Mann) for the applicants.

D J Shaw QC (with him P Gastrow) for the respondents. B

Cur adv vult.

Postea (February 22).

Judgment

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'

1978 (3) SA p416

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...