Wednesday, October 21, 2020

Boko, UDC petitioners face auctioneer’s hammer

The Court of Appeal has given Botswana Democratic Party (BDP) the go ahead to action property belonging to Umbrella for Democratic Change (UDC) president Duma Boko and his co-petitioners to settle the P565,000 owed to the ruling party in legal costs.  This follows an unsuccessful attempt by Boko and company to challenge the High Court decision to dismiss their respective applications seeking the court to nullify the 2019 elections results.According to court papers the Deputy Registrar and Master of the High Court Kebuang Tselapedi issued an allowance in terms of which the UDC petitioners were to pay the sum of P565, 000.

The order was made on September 9, 2020 and the concerned parties were given seven days to pay the amount.“It is my averment that the Applicants have failed to pay the aforementioned amount and therefore the Respondent (BDP) is entitled to a writ of execution against the said Applicants,” BDP attorney Basimane Bogopa of Bogopa, Manewe, Tobedza & Co law firm wrote in an affidavit.

UDC attorney Boingotlo Toteng had signed an agreement to the taxation order in relation to the amount owed by the petitioners.“The Respondents shall obtain a Writ of Execution in the sum of P565, 000. 00 and the writ shall not be executed until after 7 calendar days from the date of this settlement agreement is made an order of Court. The Bonds of Security filed by the Appellants shall be of full force and Effect and shall only be released on payment of the costs..,” read the taxation order. The petitioners have failed to honor the agreement and the CoA has now ordered for their property to be attached.

“You are hereby directed to attach and take into execution the movable goods of Duma Gideon, Victor Phologolo, Ramaotwana Nelson Ramaotwana, Mpho Mmannana Pheko, …Ketlhalefile Motshegwa, Moagi Molebatsi, Haskins Nkaigwa, Micus Chimbombi, Sam Digwa, …Mohammed Khan, …, and of the same to cause to be realized by public auction the sum of P565, 000.00 (Five Hundred and Sixty Five Thousand)…,” the CoA has ordered. The petitioners lost the appeal in January this year as the CoA dismissed their case before it was even heard.  The BDP lawyers Bogopa, Manewe, Tobedza & Co, and Independent Electoral Commission (IEC) lawyers Minchin & Kelly argued the CoA did not have jurisdiction to entertain the appeals by the UDC petitioners.

They said there was no statute that confers the CoA with jurisdiction to entertain the elections petitions appeals and therefore the decisions of the lower court (High Court) in relation to the petitions could not be interfered with. The BDP said no appellate court has an inherent jurisdiction to take appeals from judgments and orders of a lower court. Such jurisdiction, the party argued, can only be conferred by statute, but none has been conferred on the Court of Appeal with respect to petitions. As a result, the BDP argued, the decisions of the High Court with respect to the petitions were final and could not be appealed as the CoA has no jurisdiction to entertain the appeals arising therefrom.

The UDC lawyers however argued that because the petitions were declared a nullity, the High Court had not determined the question of whether the election is valid as contemplated in Section 69(1) of the Constitution. The five-member panel led by Judge President Ian Kirby ruled in favour of the BDP and the IEC. “The Court of Appeal has no jurisdiction to entertain these appeals,” Kirby pronounced.

The petitioners have yet to pay legal fees for BDP lawyers for petitions at the High Court, and for IEC lawyers for both the High Court and the CoA.

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