24 Nov 2019

Judge Christopher Gabanagae of Gaborone High Court, on November 21, discharged with costs an interim order to interdict election material of the past general elections by former Ghanzi North MP, Noah Salakae.

On October 30, Mr Salakae approached the High Court seeking an urgent order to interdict the election material that was ferried by a truck from Ghanzi for remittal to the Registrar of the High Court for safe custody. 

The order was on the view that Mr Salakae had suspicions that the election material was likely to be tampered with and therefore defeating his intention of petitioning the election results.  

Therefore, on October 31, Justice Gabanagae had ordered that the truck, allegedly ferrying election material from Ghanzi to Gaborone, be parked at the High Court under police guard and that its contents be secured and kept in safe custody pending the resolution of the petition.

In delivering his ruling on the interim interdict of the election material, Justice Gabanagae said the applicant approached the court with urgency having a reasonable view that the purported material will be of help on his intended election result petition. 

He said section 79 (1) of the Electoral Act stated that “The returning officer shall deliver all documents relating to the conduct of the election to the Registrar of the High Court, who shall ensure their safe custody.” 

He therefore indicated that the applicant, through his attorneys, had indicated that he had reason to believe that the section was violated, looking at some ‘disturbing’ circumstances that emanated from the process of delivering the election material. 

He has reasonable ground that an election fraud has happened. 

Judge Gabanagae said the applicant ordered the court to interdict the election material that was ferried by a truck registration B 305 AWA as it would be valuable to his purported case to challenge the election results. 

He said the material was preserved with high integrity as it was believed to be valuable evidence to the case. 

In delivering his ruling, Justice Gabanagae concurred with the first respondent (IEC) through their attorneys that it would not be fair for them to incur the costs of the order as they were never involved from the onset. 

He added that on the other hand, the applicant’s team was also of the view that they must not incur costs of the matter, as they had reasonable suspicion that circumstances relating to the election material from Ghanzi North was likely to negatively affect their case of challenging the results. 

Judge Gabanagae was of the view that the interim order by the applicant had been done justice as the ballot boxes were also securely sealed by the applicant. 

IEC was represented by Mr Moagi Moloi and Mr Lesego Babitseng from Minchin and Kelly Attorneys. 

Mr Moloi had informed the court that the interim order did not comply with the requirement of the Electoral Act. 

He said Section 73 of the act stated that the decision of the returning officer or any question arising in respect of any ballot paper shall be final, and shall not be questioned in any legal proceedings except in an election petition. 

Therefore, he argued that the applicant’s order was not done in the form of a petition and therefore he was struggling to understand what it was. 

Mr Moloi said the application was founded on hearsay as they failed to clarify to the court what they were looking for.

 He was of the view that by far, the court had done all in its power to satisfy the applicant’s order and therefore no further relief should be extended to the applicant. 

Mr Moloi also argued that their client was not granted an opportunity to appear before court, while the interim order was made and share their side of the story. 

“Had our client been given an opportunity to state their case on October 31, I believe the order would not have seen the light of day,” he said. 

He said they had presented their points of law satisfactorily and therefore the application must be dismissed, adding that the application did not qualify to be treated as an interim order and therefore must be discharged with costs. 

Meanwhile, Mr Babitseng also argued that the first respondent was not given an opportunity to rebut the allegations by the applicant and therefore must not be affected by the costs of the matter. 

He said the order was a mere conjecture with conflicting evidence. 

It will set a bad precedent since it was founded on allegations, he said. 

“If my lord was to confirm the order it would be opening gates for litigations pursued on bad faith, said Mr Babitseng. 

He therefore added that the order to interim interdict the elections material must be dismissed with costs. 

Meanwhile, the applicant’s lawyer, Mr Boingotlo Toteng of Toteng Attorneys made it clear that the court was not dealing with an election petition, but an application to secure the exhibits to use in a petition. 

Mr Toteng said section 116 of the Electoral Act gives his client the right to challenge the outcome of an election and for that purpose, he needed exhibits to be used as evidence and therefore such documents must not be tampered with. 

“We need facts to argue our case, and therefore there was risk of tampering with the election material,” he said. 

He said section 61 (8a) states that, “The presiding officer of each polling station as soon as practicable after closing of the poll, shall place all the ballot papers containing the votes of each constituency in a separate packet and close that packet in such a manner as to prevent its contents from being tampered with and nothing can be inserted with them.”

Mr Toteng said discharging the interim order would tamper with the evidence as the applicant seal on the ballot boxes might be broken. 

He said the application must stand as it was granted, with the applicant’s seal intact and the material continue being under safe custody of the registrar of the High Court. Ends