11 Jun 2020

A full bench of judges at the Gaborone High Court have unanimously dismissed Mogalakwe Mogalakwe’s application to appeal.

Mogalakwe was seeking leave to appeal an election results petition which was dismissed by the court on 27 February 2020.

The case was before justices Omphemetse Motumise, Gaolapelwe Ketlogetswe and Itumeleng Segopolo.

Delivering judgement,  Justice Segopolo said the court had the opportunity to consider the submissions of both parties.

He said the court upheld the second respondent’s submission which stated that the High Court did not have the jurisdiction to furnish the applicant with leave to appeal its decision to the Court of Appeal. However, he stated that reasons for the court’s decision would be delivered today at 2pm.

In the appeal papers, the Independent Electoral Commission (IEC) was cited as the first respondent while Mr Kesebelwang Gaorongwe of the Botswana Democratic Party (BDP) appeared as the second respondent.

Mogalakwe of the Alliance for Progressives (AP) had approached the High Court seeking leave to appeal its decision of dismissing his election petition which cited irregularities to the results of the 2019 General Election for the Mosolotshane/Moralane ward in Shoshong Constituency.

The second respondent attorney, Mr Busang Manewe stated that the applicant had approached the wrong court, and that the matter ought to be filed in the Court of Appeal.

He said the authority lied with the Court of Appeal which would address the matter with its own rules.

“This is an elementary and basic rule of law which ought to be handled appropriately,” he said.

Mr Manewe submitted that the High Court could not entertain an application seeking leave to appeal.

Furthermore, Mr Manewe said the matter was not urgent, adding that the urgency was self-created. He also said a notice to appeal should be filed within six weeks from the date of judgement.

He said Rule 19 (1) of the Court of Appeal Act and stated that even if an appeal was to be registered after the period stated, the authority lied with the Court of Appeal.

He submitted that the matter should be struck out with punitive costs.

He said reasons were that the applicant disregarded the rules of the court, and that it was further aggravated by the fact that he did not take the advice of the court to go and review similar previous cases.

“There is a presumption of the law that states that the lawyer must know the law,” he said, adding that the court went out of its way to advise both parties to take heed of the law.

“It is not the duty of the court to provide advisory service to us. Surely, based on that advice the applicants could have reconsidered their point of view,” he saidMr Manewe also said the defence lawyer was reckless and negligent in handling the matter on behalf of the client, and that punitive circumstances of the case dictated that the court mark the displeasure by awarding costs at a higher scale.

Meanwhile, the applicant attorney, Mr Patrick Kgoadi had argued that where a party was out of time to appeal and desires to apply for leave to appeal out of the six weeks’ time frame as set by the rules, the procedure was that such an application should be made to the Court of Appeal.

Mr Kgoadi said as per Order 33 of the Court of Appeal rules, a High Court judge would be given the authority by the President of the Court of Appeal to hear the appeal on behalf of the Court of Appeal.

He further said Section 11 and 12 of the Court of Appeal Act stipulated that the application should be made to the court against whose judgement a party desired to apply for leave.

Mr Kgoadi also added that the High Court was at liberty to access the matter and establish if there were exceptional circumstances under which to grant leave to appeal.

“The High Court may assess the matter and establish if there were exceptional circumstances,” Advocate Kgoadi said.

He said the court also failed to establish why he had opted to approach the High Court instead of going to the Court of Appeal and present the exceptional circumstances before them.

Justice Segopolo ruled that the applicant failed in his papers to establish the essential allegation that they had filed their papers out of time. “How will you want the court to base its decisions on assumptions,” said Justice Segopolo.

Mr Kgoadi said based on the merits of their application, it would be up to the court to make a determination and allow the case to go to the Court of Appeal. “The court must base its decision on serving justice,” said Mr Kgoadi. Ends