The High Court has found that the Botswana Movement for Democracy (BMD) impaled on its own sword of justice by withholding some crucial information from the Court.
This relates to a case in which the BMD was challenging the legality of its expulsion from Umbrella for Democratic Change (UDC).
According to the judgement delivered by Justice Bashi Moesi and consented to Justice Tshepo Motswagole and Justice Tebogo Tau, BMD deliberately held back on disclosing the existence of an important resolution and its implications for its case. The resolution in question was one of the declarations upon which the UDC relied upon to expel the BMD from the coalition movement.
The resolution among others empowered the structures of the UDC to take drastic action against its members. But the court found BMD deliberately omitted to disclose this critical information in its founding affidavit as the rules of the High Court dictated.
Justice Moesi stated that it was a fact that the attacks on the 4th March 2013 resolution by BMD appeared for the first time in BMD’s replying affidavit.
In his replying affidavit BMD Secretary General Gilbert Mangole endeavoured to respond to UDC President Duma Boko’s answering affidavit. The judge found that on March 2013, UDC adopted a resolution addressing the governance of the party in the interim period and addressing and addressing the governance of the party in the interim period. He also found that Mangole responded in his replying affidavit stating that the allegations are “fairly correct.”
“If this is somewhat opaque statement, such that one may not be able to see quite clearly whether or not BMD was aware when it launched application of the existence of the resolution in question, what Gilbert Shimane Mangole goes on to state place matters beyond any doubt,” said Moesi.
He added that there is a clear acknowledgement that the 4th March 2013 meeting took place and produced the resolution albeit one that according to Gilbert Shimane Mangole was never presented for confirmation at any subsequent meetings.
“There is no explanation tendered in the replying affidavit as to why there is no mention of the resolution in the founding affidavit, seeing that it is at the heart of the dispute and a matter which it was necessary to allege,” he said.
The judge noted that in such a situation, “the general applicable rule in our courts is that the necessary allegations must appear in supporting affidavits for the court will, save in exceptional circumstances, allow the applicant to make or supplement, his case in his replying affidavit and will order any matter appearing therein, which should have been in the supporting affidavit to be struck out.”
Moesi said the rule originated as a rule of practice through the exercise of the court’s inherent jurisdiction to confine the number of affidavits in application proceedings to the founding, answering, replying affidavits as laid down in the rules of Court.
He explained that the justification for this was that if applicant were free to make or supplement his case in his replying affidavit it could often results in further having to be filed by the parties.
“It is our considered opinion that there are no exceptional or other circumstances in the present case justifying the court, in the exercise of its overriding discretion condone BMD’s deviation from the above general rule and permitting it to make its case for the first time in its replying affidavit,” said Moesi.
He said “Strict enforcement of that rule is justified for it appears the BMD deliberately held back on disclosing the existence of the resolution and its implications for its case.”
He further stated that “This appears to have been done for tactical reasons with the gambit that the respondents would not make reference to the resolution, or if they did, it would be attacked in the replying affidavit rendering the respondents unable to challenge the same. In the circumstances, the BMD must bear the consequences of those tactics and stand to fall on its own founding affidavit.” It simply, the judge said, BMD cannot be permitted to attack the resolution in the manner that it did.
“Accordingly all the averments contained in the BMD’s replying affidavit attacking the 4 March 2013 resolution are in their entirety hereby expunged from BMD’s aforesaid replying affidavit.
On the review of grounds related to the participation in the making of the decision to suspend and expel BMD by non members of the UDC, the judges found such argument does not hold water.
“Our justification for this lies in the fact that UDC’s preparations with BCP started with a meeting of 10 February 2016. At that meeting Boko, as chairperson of the UDC, reminded participants being Ndaba Gaolathe(as President of the BMD) Gilbert Shimane Mangole(Secretary General) that among others that UDC was still operating under article 28 as resolved in 2013,” said Moesi.
The judges found that amongst the matters agreed by the participants were principles emerging from the Polokwane retreat where the Presidents of the BNF, BMD, BPP and BPC resolved that the final decision making body in the negotiations would be Presidents of the UDC and BCP on all aspects of the negotiations.
They also found that Boko’s claim to the effect that all presidents “spoke and publicly confirmed the statement delivered and stated their firm commitment to the outcome of the negotiations and the reconfigured UDC that then included the BCP whilst denied by Gilbert Shimane Mangole, finds support in a letter dated 15 July 2018 authored by the same Gilbert Shimane Mangole where he was informing the registrar of societies that UDC is a coalition of four political parties being, BNF, BMD, BPP and BCP.”
The Court found that BCP is a member of the UDC. The court also found that UDC duly complied with the process that led to its suspension and subsequent expulsion.