Alliance for Progressives’ 2019 general elections council candidate for Moralane Ward in Shoshong Mogalakwe Mogalakwe has relaunched his elections petition against the Botswana Democratic Party (BDP) and the Independent Electoral Commission (IEC).Mogalakwe, who was one of the handful petitioners that made it to trial during mass protests against the 2019 elections results by the opposition has filed for an expedited appeal to the February High Court ruling against him.The council candidate cites several incidents and matters from the trial as the basis for his application for appeal.
Mogalakwe through his lawyers Kgoadi, Legwaila, Ngandu & Partners argues that there was not enough time to consider what he says was an avalanche of evidence that he had brought before the court.“The Court subjected itself under severe pressure to consider volumes of evidence and testimonies from witnesses which took close to two weeks trial, within an hour and 15 minutes to pronounce what my attorneys advice was an extempore decision without reasons which was delivered just before midnight.” He argues that the court should have adjourned and allowed the parties enough time to prepare their arguments considering the volume of evidence presented. It is against this among other reasons that Mogalakwe believes he deserves a second bite of the cherry. On the issue of urgency Mogalakwe argues that following the delivery of the judgement by the three judge panel of Gaopalelwe Ketlogetswe, Omphemetse Motumise and Itumeleng Segopolo on Februarry 27, 2020 a soft copy of the judgement has not been made available to his attorneys.
This delay, Mogalawe argues, has incapacitated him and he believes the Court was under pressure to deliver quick justice consequently to his prejudice.“After the 27th February 2020, I had to consider options available to me and desired the same after my attorneys have read the full judgements and advised themselves and me accordingly.”He says the case is a matter of national interest since it is an election to public office.“I am informed and verily believe this to be true that the matter is so important that by nature it is an urgent matter by law, wherefore the matter cries for justice. As a result it needs to be attended urgently not to cause unnecessary disruptions to the processes of governance…I now bring this matter under urgency for condonation of late filing of Appeal and that the Appeal be heard on an expedited basis,” the AP candidate argues.
Mogalakwe also feels too much time was spent arguing points raised by the Court as opposed to the merits of the evidence presented and as such he has also been unfairly punished through the costs.In his response the victor, BDP councilor Kesebelwang Gaorongwe through his lawyers Bogopa, Manewe, Tobedza & Co has raised preliminary points challenging the High Court’s jurisdiction to entertain the matter.“The Court of Appeal Rules, 2018 specifically confers the Court of Appeal with the power and/or jurisdiction to entertain an application for leave to appeal and also an application for expedited hearing of an appeal.”The matter, the second respondent Gaorongwe argues, having been filed before the High Court is a candidate for striking off with costs. Responding to the urgency of the matter Gaorongwe argues Mogalakwe has failed to demonstrate the urgency of the matter.“The judgement was delivered on the 27th of February 2020 and the Applicant only filed the application on the 29th of May 2020. No reasonable and /or acceptable explanation for the delay has been tendered for the delay.”
He says Mogalakwe also failed to demonstrate he would not be afforded substantial redress in due course.“The governance of a country cannot be brought to a halt by a single council matter. I have been advised that the Court of Appeal has observed that the parliamentary matters are of national importance because they involve lawmakers and governance of the whole country, and therefore had to be concluded quickly without an option of appeal. That is not so with council matters.”
Gaorongwe wants the Court to dismiss the application with costs on a punitive scale. “I have been advised by my attorneys that the route which the applicant took to bring this matter to court is indicative of the highest form of recklessness and failure to pay due regard to basic rules of court. It is on this basis that I shall be seeking costs on a punitive scale. The matter has been set for next Wednesday June 10, 2020.
