Even as he opens up another legal front at the Court of Appeal that will certainly drive costs up, the last standing 2019 elections petitioner, Mogalakwe Mogalakwe, has revealed that he has been slapped with a huge legal bill.
Running on the Alliance for Progressives ticket, Mogalakwe was one-third of council candidature for the Moralane ward in the Shoshong constituency. He ran against Kesebelwang Gaorongwe of the ruling Botswana Democratic Party and Ehutsahetse Mokalake of the Umbrella for Democratic Change. When the votes were counted, Gaorongwe came out tops with 674 votes, followed by Mogalakwe himself with 637votes while Mokalake managed only 72 votes. The BDP has engaged Bogopa, Manewe, Tobedza Attorneys to represent Gaorongwe while Mogalakwe is himself represented by Kgoadi, Legwaila, Ng’andu & Partners.
In an application he has made to the Court of Appeal, Mogalakwe says that through his lawyers, he has received two separate bills of costs from Bogopa, Manewe, Tobedza Attorneys which “shocked” him.
“They told me about a letter June 4, 2020 which stated that I had to pay P1 million for the trial but shortly thereafter they received two bills for amounts P507, 353.20 for the trial and P789, 683.00the latter for the application for leave at the High Court. This totally changed the whole picture; I felt devastated and I had to start consultation again with my family and others and consider my position. I felt intimidated but still got support from all and have now come to this court,” says Mogalakwe in his court papers, by “this court” referring to the Court of Appeal which he wants to overturn an unfavourable High Court ruling and allow a retrial.
For what it is worth, his lawyer, Patrick Kgoadi, has assured him that while the court ordered attorney-and-client scale costs only, the bill of costs that shocked him was on an attorney-and-own-client scale – which “are on an extremely high scale.” The former tariff scale includes not only the absolutely necessary costs to pursue a matter to finality but also other costs which might be useful and appropriate to promote the successful party’s case, although such costs might not always be deemed necessary. The latter is a raised tariff which is not charged in line with the prescribed tariffs of the rules of the applicable court and also entails all costs incurred to pursue the matter to finality, on the raised tariff, charged in a manner agreed upon between attorney and client. Kgoadi’s assurance notwithstanding, Mogalakwe says that he “still felt shattered and was clearly shaken.”
Even as he launches another court battle, Mogalakwe is still recovering from injury occasioned by a freak accident at the cattlepost. He reveals no more than that the accident occurred around May 10 this year when he was “run over by cattle” and that he couldn’t attend court the following month and had to follow the live proceedings on Botswana Television. Resultantly, he is still receiving medical treatment at the Mahalapye Primary Hospital. He also reveals that he is a high blood pressure patient.
Mogalakwe is a long-time Mahalapye resident and from his court papers at least, Moralane appears to be where he operates a commercial farming project, which employs “close to 50 humble people that have been working the land through the years.” He personally supervises this operation by commuting from Mahalapye “daily or every other day.”
Some of his witnesses at the High Court trial were from Moralane – which is around 70 kilometres away from Mahalapye and about 30 kilometres from Shoshong. Following his unsuccessful case, the one that he is now being asked to pay P1.2 million for, Mogalakwe says that he had to make arrangements “to return all the witnesses whom I had been shuttling between Gaborone, Mahalapye and Moralane.” Ever since, “I have been sharing my time now between attending farming at Moralane and medical attention at Mahalapye Hospital for checkups on my ailment.”
As if all this physical and mental torture was not enough, the farming business and COVID-19 brought their own sets of challenges. In his papers, Mogalakwe complains about farm machinery breaking down in the midst of a farming season that had received poor rains. COVID-19 occasioned travel restrictions that made it difficult for him to travel freely between Mahalapye and Gaborone, where his lawyers are based.
Mogalakwe says all these and more in service of impressing upon the Court of Appeal the fact that “I have … been operating under pressure.” By his account, this pressure made it extremely difficult for him to file his appeal in good time. He wants to be allowed to file an appeal as part of broader effort to have the courts overturn the election results and order a re-election.
A veteran opposition figure, Mogalakwe cut his teeth in politics in the Botswana National Front which he was a member of until joining AP recently. Even in the BNF, he had a solid reputation for shaking things up and the extent of his determination is that even when doing so comes at a prohibitive cost, he has always been prepared to go all the way.