10 Feb 2020

The Gaborone High Court on Thursday postponed Mr Entebetse Boitshwarelo’s election results petition sine die pending date of judgement. 

Justice Gaolapelwe Ketlogetswe said judgement would be delivered before February 18.

Mr Boitshwarelo, who was an independent candidate, was petitioning the results of the 2019 council elections at Mmashoro ward in the Serowe West constituency. 

Delivering the petitioner’s final submissions before a panel of three judges, Advocate Duma Boko said the petition was about a fact that a number of ballots were singled out as contentious since they had marks placed outside the designated box.

Advocate Boko said the petitioner’s contention was that 36 ballots that were counted as valid ought to be rejected as the voters cross was not placed in the designated box on the ballot paper. 

He said the petitioner had stated the facts of his case with sufficient particularity and therefore were sufficient to ground their claim. Advocate Boko said where a pleading lacked necessary and sufficient ingredients, it would not be substantiated and would not see light of the day. 

Advocate Boko said the ballot paper was designed with a precise portion where a voter was to place the cross.

He said in relation to accidental spoiling of a ballot paper during voting, the attention of the returning officer would be immediately captured and a spoilt vote would be immediately identified. 

“If a voter makes a drawing in the prescribed box, it will be a problem since the IEC has unequivocally prescribed for a cross to be made,” said Advocate Boko. 

Advocate Boko said the ballot exhibited as evidence was being contended because the cross was not placed at the designated box and that any other undescribed marks other than the cross had been used. 

“What ought to be done has not been done. The proper remedy is that these ballots should not have been counted as anything outside the box does not count,” said Advocate Boko.

The first respondent Indepenedent Electotal Commission (IEC) attorney, Advocate Otsile Rammidi said the only issue of contention was whether or not the ballots exhibited disclosed jurisdictional facts to convince the court that the second respondent was unduly elected.

Advocate Rammidi was of the view that there was no confusion as to who the voters had voted for. 

He said as per section 54 of the Electoral Act, all that was required on the ballot paper was a mark which was not strictly described.

Mr Rammidi also contended that the petitioner, Mr Boitshwarelo was not credible when giving his evidence in chief.

 “Witness statement and evidence in chief were found to be wanting and the petitioner was inconsistency. The court has to decide on whether the decision of the returning officer was well informed and decide as to whether the ballots were duly received,” he said.

The second respondent-attorney, Mr Itseng Mothibamele urged the court to disregard all the evidence that was not of the petition. 

Mr Mothibamele said his team would, to a great extent, align with the submissions made by IEC attorneys. 

He said the petitioner ought to argue their case with great meticulousness as they made allegations relating to ballots which ought to have been rejected. Ends