10 Feb 2020

The High Court in Gaborone has refused application by an election petitioner to substitute witnesses. 

Attorneys for the petitioner, Mr Mogalakwe Mogalakwe led by Mr Patrick Kgoadi launched an application on February 7 proposing to substitute two of their listed witnesses. 

Delivering the court’s determination, Justice Omphemetse Motumise said, ‘the petitioner’s application to introduce or substitute two witnesses has been refused with costs.’ 

Justice Motumise said reasons leading to declining the petitioner’s application would be given in the final judgement of the case.

Deliberating on the proposed witness list amendment, Counsel Kgoadi indicated that the proposed two witnesses would bring in new evidence. 

Mr Kgoadi said the proposed move to substitute two of their witness was filed on January 31. He added that in their answering affidavit, the first respondent (IEC) attorney had raised points in limine opposing their affidavit.

Mr Kgoadi said the proposed witnesses were two police officers who were engaged on election day at Moralane polling station. 

He said they delayed introducing the witnesses as they had anticipated that they were likely to be used by the first respondent (IEC). 

“We knew that they were important to our case from the onset,” said Mr Kgoadi.

Justice Itumeleng Segopolo reminded the petitioner’s attorney to take note of the fact that they were at liberty to gather all the evidence that would be necessary to support their evidence.

 “What made you believe the police officers were the preserve of the IEC,” asked Justice Segopolo.

Justice Segopolo also urged the petitioner to be mindful of the fact that the election petition must be dealt with within a set period of time of 90 days. 

He said as per section 121 (1) of the Electoral Act, petitions must be tried within 90 days. 

Justice Segopolo asked as to what will become of the proceedings if the  90 days was to lapse before finalisation of the matter.

 He said the Electoral Act was the first point of call to comply with and therefore the petitioner must weigh conditions at hand with some considerable gravity.

Justice Gaolapelwe Ketlogetswe also asked as to why the subpoena for the two witnesses was not filed before the commencement of trial.

For his part, Advocate Otsile Rammidi of the IEC indicated that the petitioner’s witness list was released on December 19, 2019.

“We delayed providing our own witness list to allow the petitioner ample time to identify all their possible witnesses.  Even when the trial resumed, the petitioner’s team indicated that they were ready and never mentioned of their desire to amend the witness list. I doubt if this is an appropriate application to consider,” said Mr Rammidi.

Mr Rammidi said any further delays would prejudice the court’s ability to meet the legislative demand of completing the petition within the stipulated 90 days. 

He said the request had the potential to trigger more applications which would further delay finalisation of the petition. 

“The real issue is whether an injustice will result by turning down the application. I believe the court is not at liberty to consider the application as the prejudice was self-inflicted by the petitioner,” said Advocate Rammidi. Ends