Cases for Exam

Topic 10 Workshop

Lady Pohamba Private Hospital Operations (Pty) Ltd v Municipal Council of the
Municipality of Windhoek (HC-MD-CIV-MOT-REV-2020/00586) [2022] NAHCMD
579 (21 October 2022).

Facts

(para 1) The applicant, a private hospital and generator of anatomical and medical
waste, sought an order reviewing and overturning the first respondent's decision
made on 6 November 2020, refusing the applicant permission to use its Sterilwave
2501 Series medical waste management system to treat, sterilise, and destroy the
medical waste on site. The applicant further requested an order declaring that the
substance created after the medical waste is treated with the Sterilwave 250 does
not constitute hazardous waste or health care risk waste, as defined in the Waste
Management Regulations Act. (para 2)

(para 4) The applicant's classification as a generator of anatomical and medical

waste is based on the Windhoek Municipality: Waste Management Regulations (GG
4650 of 15 February 2011), which were enacted in accordance with Section 94 of the
Local Authorities Act 23 of 1992. In essence, these Regulations govern the storage,
collection, transportation, treatment, and disposal of various waste categories under
the supervision and control of the first respondent as part of its local governance
authorities and obligations. (para 5)

Question of law
(para 33) Whether the first respondent's decision on November 6, 2020, that the
applicant should not utilize the Sterilwave 250 series medical waste management
system should be reviewed and set aside in accordance with rule 76(1).

How the question of law relates to topic 10

Topic 10 explains the Regional and Local Government which encompasses a

diverse range of administrative bodies such as regional councils, local authorities,
municipalities and other forms of local governance. In the case of Lady Pohamba
Private Hospital Operations (Pty) Ltd v Municipal Council of the Municipality of
Windhoek (HC-MD-CIV-MOT-REV-2020/00586) [2022] NAHCMD 579 (21 October
2022), (para 31) One of the municipalities (City of Windhoek) core mandates is to
ensure that all waste produced within its jurisdiction is managed optimally. As a
result, COW is legally required to ensure that all waste is disposed of safely in the
manner specified and approved by Council. Therefore, the first respondent (City of
Windhoek) has the option to approve the manner and technique proposed by a
waste generator in accordance with regulation 35(3) and is required to give such an
application careful consideration. (para 36). The Waste Management Regulations
(GG 4650 of 15 February 2011 which govern the storage, collection, transportation,
treatment, and disposal of various waste categories under the supervision and
control of the first respondent plays also an important part of local governance. (para
5)

Reasoning of the court

(para 53) The first respondent's claim that it lacks the authority to grant the applicant
permission to treat healthcare waste contradicts the regulations' provision of
discretion and responsibility. (para 55) An authority may not abdicate its powers and
duties. When legislation makes it clear that an administrative authority's discretion is
to be exercised, that discretion cannot be constricted.
The resolution of August 31, 2011, clearly hampered the first respondent's judgment.
When a statutory power is invoked, the repository of the power is bound by the terms
of the Act. (para 65) In the context and particular circumstances of this case, and
because the governmental author relies on an invalid earlier decision to justify an
equally invalid later decision, the court should exercise its discretion under Article 18
to set aside the first respondent's decision dated 6 November 2020. The first
respondent did not use its thinking at all, and 25 this court has the power to overturn
the decision. Because the first respondent has not applied its mind, the Judge did
not intend to grant declaratory relief. (para 66)

Workshop 10
1. Council for the Municipality of Windhoek v Paratus Telecommunications (Pty)
Ltd (SA 27-2020) [2022] NASC 13 July 2022.
2. Paratus, a carrier providing internet connectivity in Namibia, installs fibre optic
cables in trenches and occasionally cuts roads.[3] The respondent faced
disruptions in Windhoek's fibre optic cable installation due to appellants
(municipality's)demands, including extra sub ducts and Council permitting.[11]
The respondent claimed that the appellants strategic plan to commercialize
existing fiber optic cabling without compensation and competition tainted its
powers and deprived it of impartiality as a local authority.[12] The appellant
denied further fibre optic cabling access, wayleaves approval, and strategic
plan competition.[13]

Paratus complained to CRAN about anti-competitive municipality conduct, but

CRAN agreed to continue trenching with existing approvals.[14] First
appellant informed the respondent wayleaves are subject to expectations and
not eligible until case is concluded.[15] Municipality sought for CRAN
adjudication of complaint against Paratus, requesting consultation, pending
dispute outcome, and work stop.[21] Paratus sought interim interdict, final
interdict granted, resulting in Municipality appeal case.[32&36]
3. Whether the High Court's final interdict justified against Windhoek
Municipality.[37]
4. The Municipality of Windhoek's case bindingly addresses local authority
power abuse and outlines requirements for a court-granted final interdict
against such authorities.[37]
5. The reasoning of the high court in this case goes as follows: The High court
awarded the final interdict due to the first appellant's denial of respondent's
rights under Section69 of the Communications Regulatory Act.[52] The
respondent identified the infringed right and did not require appellants'
approval, as the act granted it.[52 &54]The court ruled that the first appellant
 did not have a duty to impose demands and failed to provide evidence of
irregular conduct.[56]

Court founded that the appellants failed to defend themselves on respondent's

proof of infringement under Part 5.[56] The appellant's damages were not
proven, and their power to use police force violates the respondent's rights.
[58] The court ruled that respondents' rights were infringed by the
Municipality's unlawful eviction of respondent's properties without legal reason
as the appellants did not oppose the respondent's statements.[61]The appeal
was dismissed with cost[63]

Mouse Properties Ninety Eight CC v Minister of Urban and Rural Development and
Others 2022 (2) NR 426 (SC).

1. Case full citation: Prosecutor – General v Ombudsman and Another 2020 (2) NR
408 (HC)

2.The facts of the judgment:

The matter is between the Prosecutor General (Applicant), Ombudsman (First

Respondent) and Frederich Vincent Muller (Second Respondent). The second
respondent was convicted in the magistrate court of Aranos of a traffic offence,
parking of a motor vehicle but was not satisfied with his conviction. He was fined N$1
500 or four months in jail which were suspended for five years if he does not commit
the same offence within the suspension time (para4). After lodging an appeal with
the court he approached the Ombudsman for assistance. At the appeal criminal case
the applicant’s representative contested that the Ombudsman had no right to
represent the second respondent. As a result of this dispute the criminal appeal was
put on hold (para5). The applicant brought an order to the court which seeks an
order disallowing the Ombudsman from representing the second respondent in the
criminal appeal, the ombudsman opposed the application (para6).

The Ombudsman states in his affidavit that upon being approached by the second
respondent he looked at the record of the proceedings by the magistrate and was
convinced that the fundamental rights of the second respondent guaranteed to him
by the constitution were infringed (para9), he therefore evoked the power conveyed
to him by article 25 of the constitution in order to assist the second respondent
(para10). The prosecutor-general in the submission gave a number of reasons why
the Ombudsman must not be allowed to represent the second respondent all of
which will not be listed here for the purpose of this judgment.

3. The constitutional law question: One of the issues that the court had to decide
was whether the Ombudsman is entitled to provide legal assistance in the form of
legal representation to the second respondent as per Article 25(2) of the constitution
(para23).

4. Explain how the constitutional question relates to topic 9:

This constitutional question is related to topic 9 in a sense that it questions the

powers of the Ombudsman which is a constitutional entity as established in
paragraph 23. Topic 9 clarifies on the subject of constitutional entities such as the
Ombudsman being one of such entities. As expanded these entities play a major role
in upholding the principles of democracy and protecting the rights of individuals.
More specifically, the Ombudsman is known as the public protector and serves as an
independent oversight body that investigates complaints against public authorities.
(para17) The Ombudsman remarked that he will only exercise his discretion
according to Article 25(2) of the constitution in favour of an aggrieved person if he is
satisfied that a fundamental right or freedom of that person has been overstepped by
a public authority.

5. Court`s decision and Reason: The court had to look at the interpretation of
Article 25(2) of the constitution and at a similar judgment where they found that the
applicant who claims their rights have been infringed must approach a competent
court for an order to protect their rights and such persons may approach the
Ombudsman for legal assistance (para31). Further reading of the article enlightened
the court that the sub-article grants the court the power to grant the applicant the
order if it is in fact evident that the applicant’s rights have been at risk of infringement
(para34). The court further looked into the rights of the Ombudsman that are granted
to him in the constitution.

The court found that, the approach of the second respondent was wrong since he
had not approached the court for an order protecting his rights hence they cannot
offer their assistance (para35). The court also found that the applicant was in fact
not aggrieved. In accords with the principle of separation of power the Ombudsman
is not allowed to challenge the decision of a Judicial officer. The answer of the court
to the constitutional question is that the Ombudsman was not entitled to give
assistance to the second respondent as he was not found to be an aggrieved
person(para58). This led to the court order that the Ombudsman is disallowed from
acting on behalf of the second respondent (para60).

Workshop 8
1. Masule v Prime Minister of the Republic of Namibia and others
Citation: 2022 (1) NR 10 (SC)
2. Facts of the Judgement, In the matter between Masule v Prime Minister of the
Republic of Namibia, came as the result of interviews of Chief Investigation and
prosecution. In response to an advertisement which was carried and published, 19
applications were received and the applicant was one of the 8 candidates who were
shortlisted for interview. [para 5-6]. Following this process an interview panel was
instituted and the appellant in this matter as recommended who happened to be the
second best performing candidate on the interview.
The interviewing panel therefore sent the recommendation to the public Service
Commission (The Prime Minister) the respondent for recruitment. Aggrieved by the
actions from The Prime Minister the appellant approached or appealed to the High
Court to interdict the Prime Minister, the appellant sought for interdictory relief at the
High Court where Judge Rakow was the presidency Judge. Judge Rakow, However,
was against this applicate from the appellant and did not condone it she gave reason
to say to say that the High Court does not have jurisdiction to hear or adjudicate,
labour matters and that this application would have been right if it was applied at the
labour court. However, aggrieved by the decision of the High Court the appellant
(Masule) appealed at the Supreme Court of Namibia against the High Court ruling.
[para 7].
3. The legal issue was Whether or not section 117 (1) of the Labour Act, 2007
outsets the jurisdiction of the High Court in all labour related matter disputes? [para
8-28].
4. In relation to the legal issue, it relates to Judiciary branch because under the
common law principles of administrative law, the exercise of administrative law, the
exercise of administrative discretion is subject to judicial review and extrajudicial
adjudication. However, this principle enjoins administrative officials and bodies to
comply with certain legal rules in the exercise of administrative discretion granted by
law as the Prime Minister head of Public Service Commission. [para 29].
5. Court’s Holding (decision of the court) At the Supreme Court, the court held that
Judge Rakow was wrong in her decision of not hearing and adjudication the
appellant’s application. It is important to note what the Supreme Court had two
judgements in this case. The learned judge Hoff, concurred with the learned judge
Damased. In which they agreed that the matter had to be heard in the High Court.
The learned judges further stated that the labour court was essentially created for
administrative purposes according to section 115 of the Labour Act, 2007 of
Namibia. [para 37-38].
The learned judge Mainga showed a slight different in opinion believed that Judge
Mainga in his opinion believed that rather than dismissing the case as a whole, the
adjudication judge at the time should have referred the case to the labour court,
according to section 117 of the labour Act, 2007. The Supreme Court further held
that section 115 of Labour Act, 2007 established that the Labour Court is a division
from the High Court, while section 116, establishes the judge president appoints
judges or acting judges from the High Court have the same settings. [para 39-40].
With regard to the legal issue. The Supreme court further held that section 117 (1) of
the Labour Act, 2007 does not outs the jurisdiction of the labour court, the Supreme
Court also held that people have the misconceptions that the labour Court and High
Court has different settings which is wrong. The conclusion from judge Hoff and
judge Damased agreed. The appeal was upheld. The appeal succeeds they further
states that High Court has jurisdiction to hear the matter, the matter has to be
referred back to the High Court (labour division) for the determination of the merits.
The Labour Court is the division of the High Court states the Act, the learned judge
should have transferred appellant’s case to that division. By saying that the court has
no jurisdiction, to hear labour matters. [para 41- 44].

Swartbooi v The Speaker of the National Assembly 2021 (3) NR 652 (SC)
(4 August 2021).
Swartbooi v The Speaker of the National Assembly (SA 38-2021)[2021]NASC
(4 August 2021).
Swartbooi v The Speaker of the National Assembly (SA 38-2021)[2021]NASC
(4 August 2021).
Swartbooi v The Speaker of the National Assembly (SA 38-2021)[2021]NASC
(4 August 2021).
FACTS

Following the ruling of the Namibian High Court, the appellants filed an appeal with
the Supreme Court, disputing the decision of the Speaker of the National Assembly
to suspend them from the National assembly for an indeterminate period (para.1).
Appellants are elected members of Congress and were obnoxious during the
President's State of the Nation address, forcing the Speaker of the National
Assembly to ask them to leave the chamber (para.2). The Speaker invoked Standing
Rules 111 (para. 2) and 124(a) (para. 3) of the National Assembly.
A few days later, on 19 April 2021, the Speaker informed the appellants in writing
that he had referred the matter to the Committee on Standing Rules and Orders (the
Committee) for consideration (para 3). He also notified them that he had used
Standing Rule 124(a) and made a judgement that they're main withdrawn from the
House for the time being'. This judgement, he said, will "remain in force until it is set
aside on the recommendation of the Standing Committee."(para 3). On 21 April
2021, The High Court of Namibia dismissed an appeal contesting the speaker's
action, which dealt with the jurisdiction of the high court and the Supreme Court
(para 4). Due to the constitutional question at hand, the appellants filed an appeal
with the Supreme Court, which overturned the high court ruling (para 75 b).

Legal Question in relation to topic 8

Whether or not Section 21 of the Act forbids the High Court and the Supreme Court
from deciding the question at hand?

Explanation of the legal question in relation to the Judiciary Branch

It is in relation as the judiciary has the power or the Constitutional obligation to

ensure that the three branches of government’s powers are exercised in accordance
with the constitution. This clause, however, is subject to Articles 5, 79(2), and 80(2)
of the Constitution, making it plain that it cannot prevent this court from upholding the
Constitution (para 56). The legislature's objective with Article 21 is to give expression
to the idea, inherent in the separation of powers, of privileges and immunities for
Parliament, which includes Parliament having full control over its internal affairs. In
doing so, it appears that the legislature intended that internal affairs would not
amount to administrative action as anticipated by Art 18 but would instead be subject
to legality given the Constitution's supremacy (para 56). It is generally recognized
that an ouster provision does not stop the courts from determining whether the
relevant jurisdictional facts exist to use it (59).

The reasoning of the court decision

The Act incorporates s 21 which accords Parliament full powers to control and
regulate its internal affairs without interference (para 63). McLaughlin, J in the
Canadian Supreme Court in New Brunswick Broadcasting Co v Nova Scotia does
not support the proposition that a purported exercise of power, not authorized by the
Constitution, is immune from judicial scrutiny (para 63). The High Court relied on
what was said by this court in Minister of Finance & another v Hollard Insurance Co
of Namibia & others in determining whether a declaratory order was an appropriate
remedy (para 67).

S 21 is subject to the Constitution of the Republic of Namibia, according to Articles 5,

79(2), and 80 (2), according to the Supreme Court. It is designed to maintain the
idea of separation of powers, but it does not exempt the parliament from
constitutional examination entirely (para 56). S21 only applies to parliamentary
internal judgments or decisions made in accordance with the standing rules or the
Act, and its jurisdiction is based on Article 1 of the constitution (para 58). S21 lacks
jurisdictional facts on which the speaker can rely because it refers to the Assembly
and standing rules (para 58).

The suspension of two appellants indefinitely under the 21st century Act was
deemed unconstitutional and null and void (para 75). As a result, the appeal was
upheld with costs, including the fees of three legal counsel (para 75). The High Court
then overturned the High Court's ruling and ordered the respondent to pay the
applicants' costs, which included the fees of one instructing and one instructed legal
practitioner (para 75).

Top 8: Workshop

1. Citation:

Nghipunya v The Minister of Justice (HC-MD-CIV-MOT-GEN-2021-00343) [2022]

NAHCMD 510 (14 October 2022).

2. Facts

The applicant is awaiting trial after being detained on February 18, 2020. He is the
initial suspect in the controversy known as the "Fishrot scandal." The applicant was
accused of violating s 43(1) of the Anti-Corruption Act, 8 of 2003, by corruptly and on
numerous occasions using his or her position in a public organization to obtain
compensation for himself or another in the amount of N$75,600,000; violating s 4(b)
read with ss 1, 5, 6 and 11(1) of the Prevention of Organised Crime Act, 29 of 2004.
[para 4] The applicant attempted to obtain bail in the Magistrate Court however, it
was unsuccessful and he then brought an appeal to the High Court about that denial,
which appeal was rejected in a ruling issued by that court's full bench on October 28,
2020, due to amongst others, the provisions of S 61 of the CPA as amended, as
grounds on which bail was denied to the petitioner in both courts. [para 5]

He claims that the clauses “interest of the public and administration of justice”
establishes a barrier that prevents him from ever being granted bail because the
phrases make it impossible to fully comprehend, hence violating Articles 7, 10, 11,
12, 22, and 24 of the Constitution. [para 7] The applicant cites, the Canadian
Constitutional Court's ruling in R v. Morales, which determined that the term "public
interest" was unconstitutional due to its ambiguity. [para 11] The respondents claim
that the applicant has failed to prove the elements necessary for his constitutional
challenge to be successful. It is asserted that the applicant did not adequately
demonstrate the grounds for the alleged constitutional violations relied upon. [para
12] The relief sought were: (a) an order evaluating, amending, or setting aside the
phrase "it is in the interest of the public or the administration of justice" from s 61, be
removed, be ruled illegal, invalid, and devoid of any legal significance, be repealed
and lastly, the section be sent back to the legislature for correction should the court
upholds the applicant's constitutional challenge in accordance with its authority under
Article 25 of the Constitution. [para 2]

3. Legal question

One of the fundamental questions for the court to decide was:

 Whether or not the provisions of S 61 of the CPA as it relates to the term “in
the interest of the public or administration of justice” are in conflict with Articles
7, 10, 11, 12, 22, and 24 of the Namibian Constitution. [para 4: summary, p2)
The articles fall under bills of rights.
4. Relevance to Topic 8

The question of law has a lot to do with Topic 8, which covered the judiciary arm of
government. In para 63, the court clarified that the theory of separation of powers,
which is incorporated in our Constitution, serves as the foundation for Namibia's
constitutional system. Further that the Laws relating to the Constitution must be
interpreted by the judiciary. Judges and other judicial officers are free to carry out
their independent judicial duties without interference from the legislature. [para 8).

5. Discussion and Court decision

The Court in its approach to determining whether s 61 is constitutional interpreted

relevant Articles: 7, 8, 11, 12, and 22 of the Namibian Constitution para 15,
Namibian bail law; the provisions of s 61 and how they have been understood in
Namibia, a comparative analysis of other jurisdictions' interpretations of rules similar
to s 61 including Morales judgment. [para 18]. In para 6, s 61 was cited to state that
the court may deny the application for bail even though it is satisfied that the
applicant is eligible, that keeping the accused in custody until his or her trial is in the
best interests of the public or the administration of justice.

The court after considering all facts found that the phrase "the interests of the public
and the administration of justice” lacks definition and is so ambiguous as to be
unhelpful in guiding the legal discussion, making it unconstitutional for its ambiguity.
[para 3, p: 4] In the end, part of s 61 was ruled (a) illegal, invalid, and of no
consequence or force. (b) that the said provision has been forwarded to the National
Assembly for revision and that (c) a ruling of invalidity shall not become effective
within 12 months after the date of the decree. [para155]

Digashu v Government of the Republic of Namibia (HC-MD-CIV-MOT-REV-

2017/00447) and Seiler-Lilles v Government of the Republic of Namibia (HC-
MD-CIV- MOT-GEN-2018/00427) [2022] NAHCMD 11 (20 January 2022).

Paragraph numbers indicated by brackets [ ]

Facts
[2] The first applicant is Mr Matsobane Daniel Digashu, a major male republic of
South Africa citizen by birth. Mr Johan Hendrik Potgieter, the second applicant is
also male and a registered Namibian. They married on August 4, 2015, in
Johannesburg, South Africa, in accordance with the South African Civil Unions Act,
17 of 2006. [3] The first and second candidates made the decision to move to
Namibia during the first half of 2016. According to the South African Children's Act,
38 of 20054, they were appointed joint primary caretakers and guardians of the third
petitioner, a child 13 hereafter referred to as "L"3, on March 3, 2017, by the High
Court of South Africa. In addition, the court authorized the applicants to take L out of
South Africa and relocate him to Namibia. [4] In the second case, the applicant,
Anita Elfriede Seiler-Lilles, a German national, began a committed relationship with
Ms Anette Seiler, a Namibian citizen, in 1998. On February 2, 2004, the pair went
into a formal life partnership in Germany, and on November 28, 2017, they married
in Weilerswist, Germany. Ms Seiler- Lilles wishes to retire to Namibia with her
spouse.

[5] The requests made by both groups of applicants are as follows:

(a) a court decision stating that the respondents recognize the civil unions between
Messrs. Digashu and Potgieter, which were consummated in accordance with the
South African Civil Unions Act, and the civil union between Ms. Anita Seiler-Lilles
and Ms. Anette Seiler, which was consummated in Germany. (c) if the court
determines that the word ‘spouse' as used in the Immigration Control Act cannot be
interpreted to include same-sex spouses, the parties seek to have the section
declared unconstitutional and rectified by inserting the words 'including persons
lawfully married in another country' into the sections; (d) an order declaring the
applicants (and the minor child in the Digashu application) to be a family as
envisaged in article 14 of the Namibia Convention.

Question of law
[94] whether it can, and if so, in what circumstances, refuse to obey the Supreme
Court's conclusions if it does not agree with those findings.

How the question of law relates to Topic 8

Topic 7 explains the ’Judicial Branch’ which is an Independent branch of the State
responsible for interpreting and applying the law in the country, Article 78 of the
Constitution states that the Judicial power shall be vested in the courts of Namibia,
which shall consist of (a) a Supreme Court of Namibia, (b) a High Court of Namibia
and (c) Lower Courts of Namibia. In this case the court had to consider whether it
can, and if so, under what conditions, decline to obey the Supreme Court's decisions
if it disagrees with them. (94) The answer can be found in Namibian Constitution
Article 81. It states that a decision of the Supreme Court is binding on all other courts
in Namibia and all Namibians unless reversed by the Supreme Court or contradicted
by an act of parliament. [95] This is the fundamental basis for the principle of stare
decisis (also known as the doctrine of precedent), which stimulates the constant
development of legal principles and ensures the dependability of judicial decisions.

Reasoning of the court

[137] Based on the preceding discussion and the restrictions of Article 81, the court
determined that the applicants could not receive the declaratory and constitutional
remedy sought in this court. Only the Supreme Court has the power to overrule its
decision. [139] With regard to the position of L, keep in mind that this court is the
higher guardian of all minor children, responsible with ensuring that their best
interests are prioritized. The order of Van Der Linde J of the Gauteng Local Division
declaring the second applicant to be L's caregiver and guardian is unchallenged. The
respondents simply object to the declaration in relation to Mr Digashu

Popular Democratic Movement v Chairperson of the Electoral Commission

(SA 59 and 65-2020) [2022] NASC (30 May 2022)2. The PDM, was a political party
who participated in the 2020 elections who submitted their candidate list to fill
the seats in the National Assembly (NA) to the Electoral Commission of
Namibia (ECN) (3).The ECN indicated that some members listed did not qualify as
they were employed by the public service or were members of the National or
Regional Council or Local Authority (4). The PDM then amended its list by replacing
the unqualified members, which amended list was published in the Gazette (5)
In the election, the PDM obtained 16 seats in the NA, however, it then used the
initial list of unqualified candidates to fill the seats (as it seemed that the
unqualified candidates left their positions which disqualified them as
prospective Members of Parliament (MPs) (6).Two aggrieved members of the PDM,
who featured on the amended list, but were not sworn-in, subsequently brought an
urgent application in the Electoral Court to force the PDM to make use of the
amended list as published in the Gazette (7)
The Supreme Court on appeal, had to determine whether the PDM (in exercising
their right to choose their candidates) could amend their candidate list for seats
in the NA after the election results were confirmed or whether such conduct
was unconstitutional in terms of representative representation in the Legislative
branch of the State (8).4. Section 77 of the Electoral Act 5 of 2014 states that all
political parties participating in elections must submit a list of between 32 and
96members to fill the seats in the NA (1), which must be handed to the ECN by a
date as set out in the Gazette prior to the election (2). The court interpreted the
Constitution read with the Act (specifically Schedule 4, Articles 23 and 46 of
the Constitution and Sections 77 78(2) and 110 of the Act (22, 23, 25, 26 and 27)
which clearly sets out the procedures to by followed when determining the
candidates to fill the seats in the National Assembly. The court found that in
interpreting these statutes, an elected MP can only be removed in terms of Article 48
and not at the discretion of the party (29) and that representation in the NA is
determined by an Act of Parliament, being the Electoral Act in this case (30).
Party lists compiled at the discretion of political parties can only be amended before
the elections and the final list must be published before voting commences (31 and
32). Therefore, the Electoral Court was correcting finding that PDM was not allowed
to amend their party list after the elections (34). The swearing-in of the 6 members
excluded from the published list was unconstitutional and PDM was ordered to
replace these members with those who featured on the list (40) and who was to
immediately be sworn-in to the NA (43)