Snyman v Schoeman and Another

• Jurisdiction: South Africa
• Citation: 1949 (2) SA 1 (A)

Snyman v Schoeman and Another
1949 (2) SA 1 (A)

1949 (2) SA p1

Citation	1949 (2) SA 1 (A)
Court	Appellate Division
Judge	van Den Heever JA
Heard	January 26, 1949
Judgment	January 31, 1949

Flynote : Sleutelwoorde

Election law — Parliamentary election — Election petition dismissed — Application for leave to appeal — When granted.

Headnote : Kopnota

The public interest demands that elected members of Parliament shall not be vexed with futile litigation. In spite of the importance of the issues involved, therefore, leave to appeal should not be granted as a matter of course from a judgment dismissing an election petition. But, unless it is abundantly clear that an appeal cannot possibly succeed, leave should not be refused.

An election is conducted in accordance with the principles of the Electoral Act if the electors concerned entitled to vote have had a full, fair and free opportunity of expressing by a majority of votes secretly and by ballot their choice of parliamentary representative.

Applicant had applied to set aside the election of first respondent to Parliament on the grounds (a) that there had been a general intimidation of voters by a crowd of the first respondent's supporters gathered outside one of the polling stations, (b) that certain election placards calculated to mislead the electors to the prejudice of the applicant had been placed upon the walls and within the precincts of the building which was being used as a polling station, and (c) that one P., a supporter of first respondent, had been present within the polling station illegally and without having been sworn to secrecy, and that he had interfered with the voters by exhorting them to vote for the first respondent and by asking them if they had voted 'right'. The trial Court found that grounds (a) and (b) had not been substantiated by evidence and

1949 (2) SA p2

as to (c) it found that, though P's presence was in direct conflict with the provisions of Chapter III of the Act, the election had nevertheless been conducted in accordance with the principles of the Act, and that the irregularity had not affected the majority by which the first respondent had been elected. In an application for leave to appeal,

Held, as it was abundantly clear that an appeal could not succeed, that the application should be dismissed with costs.

The decision of the Transvaal Provincial Division in Snyman v Schoeman and Another confirmed.

Case Information

Application for leave to appeal from a judgment in the Transvaal Provincial Division (DE VILLIERS, J., ROPER, J., and CLAYDEN, J.) dismissing an election petition. The facts appear from the judgment of VAN DEN HEEVER, J.A.

A. Shacksnovis, K.C. (with him G. P. C. Kotzé), for the applicant: Leave to appeal should be granted because the matter raises questions of law which are of considerable public importance; see Marcus v Stamper and Zoutendyk (1910 AD 4), Zandberg v van Zyl (1910 AD 258), Bushby v Guardian Assurance Co., Ltd. (1916 AD 488). Further, the questions at issue and their bearing upon the validity of the Parliamentary election in question are matters of considerable importance both to the enrolled voters of the constituency and to applicant; this is a predominant consideration in deciding whether leave to appeal should be granted or not; see Haine v Podlashuc and Nicolson (1933 AD 104 at pp. 112 - 3), de Wet v Union Government (1933 AD 200 at p. 203), Delport v Clarence (1940 AD 34), Olley v Des Fountain (1941 AD 98 at p. 99). There is a reasonable prospect of success on appeal and the matter is arguable. For the tests to be applied, see Rex v Nxumalo (1939 AD 580 at pp. 582 - 3), Rex v Ngubane (1945 AD 185 at p. 187). Freedom of voting is a principle which emerges from chapter III, Act 46 of 1946; see secs. 73, 76 (4) and (5), 90 and Lotter v Returning Officer, Beaufort West Municipality (1914 CPD at pp. 395 - 6). There is a reasonable prospect of arguing with success that this principle of freedom includes the right of a voter to be free from being influenced directly or indirectly whilst in the polling station and not merely whilst in the act of recording his vote; cf. sec. 73 (1), Lotter's case (supra, at pp. 395 - 6). Generally, the Court a quo placed too narrow a construction upon sec. 91, and it failed to attach the requisite weight to the proved non-compliance with secs. 73 (1) and 95 (2) the provisions of which call for meticulous observance; see de Villiers v Louw (1931 AD 241 at p. 270).

1949 (2) SA p3

O. Pirow, K.C. (with him M. R. de Kock), for the respondent: If there is no reasonable prospect of success on appeal, leave to appeal will be refused; see Naylor and Prechner v Rex (1910 AD 261 at p. 263), Greenwood Park Brick Co., Ltd v Hulett & Sons, Ltd. (1911 AD 107 at p. 118), Rex v Gannon (1911 AD 269 at p. 270), Cohen v Distin (1911 AD 363 at p. 368), Stanley v Robinson (1913 AD 210 at p. 211), Rex v Suliman (1923 AD 659 at p. 660), Stalker v Natal Law Society (1933 AD 113 at p. 115), Bezuidenhout v Dippenaar (1943 AD 190 at p. 195), Rex v Ngubane and Others (1945 AD 185 at p. 187), Rex v du Plessis (1935 TPD 333 at p. 336). There may be an avoidance of an election for violation of the principle of freedom to vote, either by virtue of the Electoral Act 1946 or under the Common Law. Under sec. 114 read with sec. 131 undue influence is penalised, but if not exerted by the candidate or his agents the only result is that the offender himself is liable under sec. 117. Under sec. 128 (b) read with sec. 131, wilful obstruction of a voter, either at the polling station or on his way thereto or therefrom, is penalised, but if not committed by the candidate or his agents the only result is the personal liability of the offender under sec. 130 (1) (d); it was never part of applicant's case that first respondent or his agents were guilty of obstruction at the polling station; under the Common Law the only ground on which an election can be avoided for the violation of the principle of the freedom to vote, is that freedom to vote had ceased to exist by reason of undue influence or general intimidation, but then the undue influence or intimidation must have been so extensive as to have prevented a true election; see Rogers, Elections (20th ed., pp. 341 et seq.), Parker's Election Agent (4th ed., pp. 556 et seq.), Fraser, Parliamentary Elections and Petitions (pp. 123 et seq.), Halsbury's Laws of England (2nd ed...