BCP refused permission to amend its declaration in EVM case

03 Dec 2018

BY JOSEPH BALISE

The opposition Botswana Congress Party (BCP) has failed in its bid to introduce a new cause of action which was never canvassed in its earlier pleadings against the Electoral Amendment Act of 2016 which introduced the use of Electronic Voting Machines EVMs and abolishment of supplementary registrations as provided for in the previous Electoral Act.

Dismissing the BCP application, Justice Lot Moroka of the Francistown High Court held that “the pleadings have long closed and the report on the final pre-trial conference having been made an order of the court, the pleadings cannot be re-opened because that will be contrary to the well-known principle that it is in the public interest that there should be finality to litigation”.

The presiding judge explained that because of the significance of the case, he had truncated the timelines on delivery of judgments and ruling and elected to deliver his ruling on November 29, 2018.

The judge explained that the BCP was granted leave by the court to file an amended declaration and did so on 7thSeptember 2018 before launching another attempt of amending the declaration on the 10th November 2018

The matter went through all pre-trial stages inclusive of the initial case management conference and the final case management conference. The court then crystallized the issues that would go for trial and the matter was set for trial on 12, 13, 14 and 16th November 2018.

However, on the eve of the trial on November 2018, BCP filed an application for amendment of its declaration whose effect supplanted the commencement of trial by introducing a new cause of action which was never canvassed in its earlier pleadings.

The new cause of action that the BCP sought to introduce if it was granted permission by the court, relates to the compliance of the Electronic Voting Machines with Part 1, 11, IV and VII of the Electronic Communications Act.

The BCP averred that the EVMs and its usage contravened the Electronic Communications and Transactions Act which regulates electronic communication and or transactions.

In that regard, the BCP sought an order setting aside the use and or intended use of the Electronic Evidence Act in terms of paragraph 14.1 to 14.4 of its amended declaration.

Justice Moroka observed that as a matter of law, amendments to pleadings including amendment to the plaintiff’s declaration is permissible in law. Order #2 is provided because it is understood that a party may not get everything right at the first instance and therefore if the amendment sought is without mala fides and undue prejudice to the other party it should be allowed.

According to the presiding judge, as the rule ordains, the aim of the intended amendment should be to do justice between the parties by deciding the real issues between them. The mistake or neglect of one of them in the process of placing the issues on record is not to stand in the way of this; his punishment is in his being mulcted in the wasted costs.

The amendment will be refused only if to allow it would cause prejudice to the other party not remediable by an order for costs and, where appropriate, a postponement.

“Therefore, it is settled that the approach to amendment of pleadings, in our jurisdiction is to allow them in as far as no prejudice to the other party that cannot be cured with postponement and cost order. It is settled that while procedural law must be followed, this should not fly in the face of determining the rights or obligations of parties,” Justice Moroka.

The presiding judge said he does not believe that the BCP has demonstrated that manifest injustice will be visited upon it if the amendment is refused.

“The amendment sought to be made by the plaintiff is so late in the day that if permitted it will require the taking of fresh instruction by counsel from the 1st defendant and inevitable amendment to the Defendant’s plea. It will require the re-start of the entire process. It will visit prejudice upon the 1st Defendant which cannot be cured by order of costs,” pronounced Judge Moroka.

He said it is in the public interest that there should be finality in litigation and that no person should be subjected to action at the instance of the same individual more than once in relation to the same issue. The principle applies not only where remedy sought and the grounds therefore are the same in the second action as the first but also where the subject matter of the two actions being the same, “it is sought to raise in the second action matters of fact or law directly related to the subject matter which could have been but were not raised in the first action”.

Justice Moroka explained further that as far as the pleadings are concerned, this principle requires of parties who are drafting their pleas, to form an opinion and pronounce a judgment, to every point which properly brings to the subject of litigation and which the parties, exercising reasonable diligence, might have brought at the time.

“The Plaintiff had two chances to amend its declaration, it now seeks a third chance. The intended amendment is the one which a party and its lawyers upon exercising reasonable diligence, should have brought forward at the time of the filing of the original declaration or at the least upon the filing of the amended declaration following leave to do so by the court,” explained the presiding judge.

He pronounced that a consideration of whether to re-open pleadings is not confined to the issues the court is actually asked to decide, but it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. Given the set of facts in this case, the principle of finality to litigation negate grant of the amendment.

Justice Moroka observed that the amendment the BCP sought to introduce, is aimed at seeking an order declaring provisions of the Electoral Amendment Act, not compliant with the provisions of the Electronic Communications and Transactions Act. Literally, the BCP seeks in the intended amendment to have the court order that the provisions of one Act of Parliament is ultra vires the other.

According to the judge, “it is an immutable principle of law that Acts of Parliament rank pari pasu. Therefore, no Act of Parliament should supersede the other Act of Parliament, save where Parliament has so legislated. That a portion of the Act of Parliament can only be set aside if it is ultra vires the constitution. To the extent that the intended amendment seeks that the court declares one act ultra vires the other, it is bad in law and cannot be allowed”.