23 Feb 2020

The Court of Appeal in Gaborone on Friday granted the Botswana Movement for Democracy (BMD) the will to withdraw its appeal against termination of  its membership with the Umbrella for Democratic Change (UDC).

A panel of six judges, led by Court of Appeal President Ian Kirby therefore dismissed the appeal with costs.

UDC Leader, Advocate Duma Boko was cited in the appeal as the first respondent while the UDC appeared as second respondent.

The appellant did not have representation when the pronouncement was made. Representing the first and second respondents, attorney Dick Bayford said initially the appeal was listed for dismissal as the appellant had failed to cover for security costs.

“It was only yesterday that we were served with notice for abandonment of the appeal with more reasons,” said Mr Bayford.

Mr Bayford therefore did not dispute the notice of withdrawal arguing that the appellant must incur costs.

In a notice of abandonment of the appeal filed at the Court of Appeal, the BMD stated that the grounds of the withdrawal had nothing to do with the merits of the appeal. 

The notice stated that the appellant had supreme confidence in the merits of their case.

The BMD was of the view that the withdrawal of the appeal was compelled by the circumstances that by its conduct, the judicial system had from inception determined the political rather than the legal outcome of the matter in favour of the respondents.

 The appellant was of the reason that one or more of the high court judges being a former or current member of one of the political parties under the UDC, unduly delayed in hearing the review application. Notwithstanding that, the appellant also stated in the notice that the court had allocated three days for hearing the case and only allowed the appellant 30 minutes to argue its case.

The second reason for abandoning their case, was that the Court of Appeal had refused to hear the appeal on an expedited basis prior to the 2019 general elections on account largely of what were arguably political considerations and by so doing diminished the meaningfulness of the appeal as to render it hardly worth prosecuting.

The appellant also indicated in their tendered notice for withdrawal that the registrar by setting grossly excessive, exorbitant and unaffordable security for costs at P230 000, made it impossible for the appellant to pursue its appeal.

In October 2018, the BMD membership under the UDC was terminated. Following its dismissal, the BMD approached the high court to intervene, as they were of the view that their expulsion from the UDC was unlawful.

On August 29, 2019 a panel of three judges of the Gaborone High Court made up of Tshepo Motswagole, Tebogo Tau and Keorapetse Moesi dismissed with costs, the application by the BMD challenging its expulsion from the UDC.

Not satisfied with the High Court ruling, the BMD on September 09, 2019 approached the Court of Appeal to attend to their appeal as a matter of urgency.

The Court of Appeal found no reason in expediting their appeal, ruling that there were not enough reasons for the appeal to be heard urgently. ENDs