09 Dec 2023

December 8 - Judge Gaolapelwe Ketlogetswe of the Francistown High Court has dismissed an application by the Independent Electoral Commission (IEC) with costs, which sought to have their case heard by a panel of three judges.

The IEC's application contended that the case in which the UDC is seeking to have registration clerks during registration process,  held significant public importance and required the expertise of multiple judges.

In his ruling on December 7, Judge Ketlogetswe cited three reasons for dismissing the IEC's empanelment application.

Firstly, he referred to Court Rule (1b) Order 42, which stipulates that the Chief Justice can only decide to empanel judges before a case is allocated to a judge. In this particular instance, the case had already been assigned to a judge, and no challenge had been made against that allocation prior to the application.

Secondly, he mentioned that the UDC had demonstrated a reasonable chance of success in challenging the Chief Justice's decision.

Lastly, Judge Ketlogetswe stated that the IEC's request for a panel of judges was not made in good faith and appeared to be motivated by a desire to delay the proceedings.

Consequently, Justice Ketlogetswe issued an order interdicting and restraining the Chief Justice and Acting Registrar of the High Court from executing the decision to empanel by appointing Judges Bengbame Sechele and Taboka Slave to preside over the substantive matter.

He also postponed the substantive application until the hearing and finalisation of the UDC's application to review the Chief Justice's decision to appoint three judges, which included Justices Sechele and Slave, to oversee the substantive matter.

The background of the case dates back to October 31, 2023, when the UDC filed an application for an interim interdict, seeking to restrain the IEC from preventing UDC registration clerks from observing and monitoring the voter registration process that was scheduled for November 1, 2023. The UDC aimed to obtain a declaratory order confirming their right to deploy registration clerks for observation purposes.

The interdict application was granted, and on November 5, 2023, the IEC lodged its notice of opposition to the UDC's substantive application, filed a day after the hearing for the interim interdict. The judgement for the matter was reserved until November 10, 2023.

On November 8, 2023, the IEC sent a letter to the Registrars of both the Francistown High Court and the High Court in Gaborone, urgently requesting the empanelment of at least three judges to hear and decide the substantive matter. The IEC justified their request by emphasising the exceptional national interest of the case.

The Chief Justice granted the request and subsequently informed the attorneys for both the IEC and UDC of the decision to empanel Justices Sechele and Slave to decide the UDC's application against the IEC.

On November 13, 2023, the UDC filed an urgent interlocutory application, seeking an order to prevent the High Court Acting Registrar from implementing the Chief Justice's decision to empanel a bench of judges for the substantive application against the IEC. The UDC intended to file a review application to challenge the Chief Justice's decision as unlawful.

Expressing dissatisfaction with the turn of events, the IEC wrote a letter on November 14, citing the short notice provided for the hearing.

Additionally, they raised concerns about Justice Ketlogetswe's inclusion on the panel of judges constituted by the Chief Justice, claiming he would be conflicted and therefore should recuse himself from the matter.

Judge Ketlogetswe dismissed the IEC's contentions, stating that both the facts and the law had been misconstrued by the IEC's legal representatives.

He confirmed that he was properly seized with the matter, even at the time of the Chief Justice's decision to bring in two judges to preside over the UDC/IEC application. BOPA