The controversial case that saw the ruling Botswana Democratic Party (BDP) not participating in the Francistown West by-elections last year November might turn otherwise after BDP’s opponent conceded before the Court of Appeal (CoA) on Monday that Lobatse High Court Justice Tshepo Motswagole wrongly favoured them last year.
BDP and its candidate, Ignatius Moswaane launched an appeal against Whyte Marobela challenging the Motswagole judgment of October 31, 2013 in which he interdicted the BDP from submitting the names of its candidate for the by elections. The court order further interdicted Moswaane from submitting his name to the Independent Electoral Commission (IEC) for nomination pending the final determination of the application.
In their application before the CoA, the applicants through their attorney advocate Francis Barrie argued that Justice Motswagole erred in going broader and reviewing the proceedings that were not before him, but before his learned brother Justice Godfrey Nthomiwa.
“It is important to observe that in the case before Motswagole, Marobela did not bring review proceedings or seek to review the decision of the central committee pursuant to proceedings under either Order 61 Rule 1 of a private body such as the central committee of BDP. Consequently, no record of the proceedings before the central committee served before him,” argued Barrie.
“Motswagole was not called upon to determine the issue of the correctness or otherwise of the decision of the central committee to dismiss Marobela’s internal appeal, that being a matter for determination by Justice Nthomiwa which was at that stage already charged with the determination of that dispute,” Barrie argued further.
In his response, Marobela’s attorney, Obonye Jonas of Jonas Attorneys said; “I will concede that some aspects of Motswagole’s judgment are indefensive,” he said as he stood up to address the three panel of judges.
When the judges put to him that he did not make a case on the orders that he was granted, Jonas responded in the affirmative. He again told court that it was not a decision for Motswagole to look at the manner in which the internal appeal was conducted.
The BDP had on October 5 held its primary elections in Francistown West constituency following the death of the area Member of Parliament, Tshelang Masisi. Moswaane was declared the winner against other three candidates including Marobela. Aggrieved by the conduct of the elections, Marobela filed a complaint with the central committee challenging the results. He was referred to the regional committee but refused to lodge his case before it arguing that it was not impartial.
He then filed an urgent application before Justice Motswagole seeking an interdict of the BDP from submitting Moswaane’s name to the IEC to stand for the by-election pending the outcome of his protest. The judge granted an interim ruling prohibiting the BDP and Moswaane from submitting his name to the IEC. Subsequent to the order, the central committee sat and listened to Marobela’s primary elections’ complaint and dismissed it for being without merit.
It was then that Moswaane tried to submit his name with the IEC on the deadline of the submissions but the IEC refused to accept his name on the basis that the court order of Justice Motswagole prevented them from doing so.
Judgment will be delivered on the July 31.