Friday, July 12, 2024

Mogalakwe’s legal team badly and poorly represented him in election petition case

Rre Mogalakwe Mogalakwe may have not won his election petition on the overall evidence presented in court. But the costly errors committed by his legal team in quick succession somewhat set the tone for the ultimate collapse of his election petition both at the High Court and the Court of Appeal. The costly errors I am referring to were abundantly clear during the High Court proceedings as beamed to the nation and beyond by Botswana Television. The 68 paragraph Court of Appeal judgement delivered on 8 September 2020 by Justice L.S. Walia sums up some of these costly errors.

The first costly error in my view has to do with the calibre of witnesses called to give evidence. I do not have to overemphasise the crucial importance of a witness in any trial. I want to believe witnesses can make or collapse one’s case if they are not sufficiently prepared for the rigorous nature of court settings and the intimidating atmosphere. This is because a court room could be intimidating in one respect or the other. Witnesses in this case appeared on the eye that they were either not sufficiently prepared or collapsed under intense cross examination. The other aspect of the witnesses I noticed was some of them were older to reasonably command a good memory of events on the day of polling because such were the core of this election petition. And I am saying this with the greatest of respect and humility to the senior citizens. No offence intended. Wouldn’t it have been better to enlist younger witnesses with sharper memory of events which could have enhanced the prospects of success of the petition?  Your guess is good as mine.

The second is where Rre Mogalakwe’s legal team made an application mid-way the trial to have police officers who were on duty at the polling station to give evidence for them. The Respondents successfully opposed the application. Justice Segopolo asked why these police officers were not in the original list of the Applicant’s witnesses. The defence team’s answer was that they thought the police officers would be the Respondents’ witnesses. Justice Segopolo told the defence in a rather reprimanding tone that police officers do not belong to any party contesting elections but that they are on duty to ensure that there is law and order. To drive his point home, he said that when police officers are on duty at a football match, they do not belong to neither the football association nor football teams playing thereat. The police officers could have given evidence supporting Rre Mogalakwe’s case to clarify issues which were not very clear from other witnesses-whether Rre Kaundimba who was alleged to have campaigned during voting actually did so; whether a complaint was lodged with them by any of Rre Mogalakwe’s campaign team members with respect to the alleged campaigning; what steps if any they took to address the allegation. Just why such an experienced legal team representing him failed to enlist police officers as their witnesses is beyond me. I would expect the team to know the procedure of obtaining police officers as witnesses in any trial.

After losing the election petition with costs at the High Court, Rre Mogalakwe’s legal team decided to appeal this decision. It has since emerged that instead of lodging the appeal with the Court of Appeal, the team approached the very same High Court in a bid to seek its permission to approach the Court of Appeal. This matter was again dismissed with costs because it was not properly before it (High Court). Given the level of experience of the Rre Mogalakwe’s legal team, one would have expected it not to commit such costly legal errors with respect to both procedure of appealing their case from a lower court to a superior court and the possible financial loss as ultimately incurred by client. Rre Mogalakwe unnecessarily lost money in this fatal approach to the court of first instance.

From this point, Rre Mogalakwe’s legal team decided to lodge an out of time appeal with the Court of Appeal. Put differently, the legal team was applying for condonation such that the Court of Appeal could hear the appeal if it condoned such late application. Judgement from the High Court was delivered on 12 February 2020 (and reasons thereof availed on 27 February 2020) with the application for leave to appeal made on 15 July 2020. From the date of availing reasons and the commencement of the Covid-19 period is about one month. It is my believe that this was more than enough time for Rre Mogalakwe’s legal team to have launched a proper legal process to appeal the judgement of the Hugh Court without the precarious situation of applying for condonation as it turned out to be. Just why this was not done before the Covid-19 period is beyond me. The delay in filing a proper application with the Court of Appeal was wasted in my view, by filing for leave to appeal the High Court judgement at the very High Court. This is confirmed by Justice Walia at paragraph 31 of his judgement when he says ‘As for his application to the High Court for extension of time, he has no one but himself and his attorneys to blame. His attorneys, legal practitioners of many years’ experience, ought to have been aware that applications for extension of time may only be made to this Court.

Were there any prospects of success given how the matter unfolded at the High Court? Not by any stretch of the imagination in my view! The three High Court judges concurred in dismissing it, with respect, on the overall ‘weak and contradictory’ evidence as led by the witnesses. Watching the proceedings as a layman, I could not fathom Rre Mogalakwe’s legal team making a good case of election petition from the court of first instance to the apex one. There may have been a case to make from the Mosolotshane/Moralane council ward election. But it is the overall construction of the case in my view that rendered the case unwinnable from the beginning to the end.

I sympathise with Rre Mogalakwe on the understanding that he hired lawyers of many years of experience at such great cost to represent him in his election petition. But for such lawyers to commit some of the ‘elementary’ errors as alluded to above is disturbing and I dare say, a serious disservice to him. Like I have already said, Rre Mogalakwe may have not won the overall election petition. But he deserved a better fight ably assisted by his legal team. It is my considered view that he was badly and poorly represented in his election petition. I am prepared to be persuaded otherwise as always. Judge for Yourself!

Kindly do not forget to comply with Covid-19 health protocols. Frequently wash your hands with clean water and soap or sanitise where possible, social distance and wear your masks. It is not a big ask to do so.

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