The Botswana Congress Party (BCP) has chickened out of the case in which it was challenging the appointment of President Mokgweetsi Masisi.
The case was expected to be heard by a panel of three judges namely, Justice Tebogo Tau, Justice Godfrey Radijeng and Justice Barnabas Nyamadzabo.
When the case resumed on Thursday, BCP lawyer Katlego Sefhako of Dingake Law Partners was grilled by Justice Tau to explain the whereabouts of the managing partner at her law firm, Martin Dingake. She explained that Dingake was outside the country.
Tau also rebuked the lawyers for not following the right procedure when making an application for leave to withdraw the matter. Following an adjournment the court granted BCP leave to withdraw the case and slapped it with costs because the judges were of the view that the party failed to provide concrete reasons for the withdrawal of the matter.
Sefhako could not explain to court why they were withdrawing the matter and instead referred the court to their founding affidavit. Pressed further, Sefhako said they decided to withdraw the case following a complaint they lodged with the Registrar and Master of the High Court Michael Motlhabi relating to Chief Justice Maruping Dibotelo’s decision to appoint two more judges to preside over the case.
The computer, through the Case Management System (CMS) had assigned the case to Justice Tshepo Motswagole who has since recused himself from the case.
“We were not told of the criterion that was used to empanel the judges. The Administration of Justice did not have the decency even to notify us of its decision to empanel three judges. The system of selection of the empanelled judges remains classified information, this cannot be justice. The panel as constituted is illegal and amounts to judge shopping. The Chief Justice is only empowered to determine the number and not (appoint the judges) but in this matter the Chief Justice did the contrary,” said Sefhako.
BCP said it has lost confidence in the Judiciary under the leadership of Chief Justice Dibotelo because they were not told about the criteria used to appoint the three judges.
But in their ruling, the three judges wondered whether BCP has met the requirement for leave to withdraw the case under Order 6 Rule 15(3) of the High Court
Tau observed that the reasons which were advanced by Sefhako were explained in an emotional context without any evidence.
“The Count found that the reasons advanced by BCP about complainant against CJ were not relevant and does not address the issues that were live before court. It is for this reasons that the court is not satisfied that BCP has satisfied the good and sufficient requirement. This notwithstanding considering that there is no objection from the Attorney General this court exercise its discretion to nonetheless grant them leave to withdraw,” said Tau
She said BCP has prayed for an order that each party must bear its own cost but Attorney General has expressed displeasure at the conduct of BCP lawyers on the case.
She said from the onset the matter “was on urgency but the conduct of BCP attorney was uncalled for because since Monday when the matter was scheduled for 8am, Dingake never pitch up on time until he was called around 11am and answered that he was on his way but never showed up.”
Justice Tau said the court has observed that BCP was also not in court on the 23th April despite having set down the matter for 8 am.
“Not only were they not in court, they failed to appear despite having been contacted by the court staff. No explanation was proffered to this court nor the Attorney General for the absence on the 23 April 2018,” she said.
Justice Tau added that “Today, we leant that Dingake is not out of the country and no apology nor evidence is provided for his absence. We take the view that the conduct of BCP in handling this matter requires censure as it is unbecoming of an officer of this court to fail to appear at a time he has set down a matter for and secondly to appear late without justifiable explanation and the conduct for BCP lawyer calls for costs on a punitive scale.”
According to Justice although the court was not satisfied with the reasoning advanced for withdrawal and notwithstanding that there was no objection from Attorney General Advocate Abraham Keetshabe and his Deputy Morulaganyi Chamme the court will exercise its discretion to nonetheless grant with cost leave to withdraw.
The matter was withdrawn and BCP was ordered to pay costs on attorney scale and client scale.