26 Aug 2020

Advocate Patrick Kgoadi has told the Court of Appeal that Mr Mogalakwe Mogalakwe’s application for leave to appeal will not be swayed out of position by reasons advanced by the respondents. 

Appearing before Justice Singh Walia on Tuesday, asking for leave to appeal, advocate Kgoadi pleaded with the court to grant their application, as they had given enough reasons to advance their case.

The intention to appeal follows the Gaborone High Court ruling on February 12, 2020 dismissing with costs, Mr Mogalakwe Mogalakwe’s petition, of the October 23, 2019 general election outcomes of the Mosolotshane/Moralane ward in the Shoshong Constituency. 

Mr Mogalakwe of the Alliance for Progressives (AP) had approached the High Court asking the court to declare the outcome of the election null and void. He had cited irregularities in the 2019 general election.

Advancing reasons for the appeal, Adv. Kgoadi said his client launched his desire to appeal on July 15 this year and it was within the stipulated 90 days. 

He further told the Court of Appeal that the High Court erred in its determination as it did not take into account that the conditions on the fateful day of October 23, 2019 at Moralane Primary School were not in favour of a free and fair election.

The applicant advanced, among other reasons, that there was poor lighting inside and outside the polling room, refusal by the court to allow additional witnesses, canvassing for voters along the queue and that the voting process was disturbed by bad weather after a hail storm in the afternoon of that day.

Mr Kgoadi also added that there was an incident of crowding at the polling station and that some elderly illiterate voters were not allowed to be assisted by residents in casting their votes.

He said Section 65 of the Constitution provided that the Independent Electoral Commission (IEC) must ensure that elections were conducted efficiently, freely and fairly. 

Based on such reasons, Adv. Kgoadi said the environment on that day did not provide an efficient voting as for among others there was poor lighting. “There was no need to improvise and as such provision of Section 65 of the Constitution were not satisfied,” he said.

However, Justice Walia cautioned the applicants to desist from citing issues that were not covered by the determination of the High Court. “The High Court did not deliberate of Section 65 of the Constitution, which you are raising now. I am bound by the four corners of the record from the High Court. I agree with you that the law must be obeyed, but I will not deliberate on issues that never emanated from the lower court. You have to show me how the High Court was wrong in its ruling,” said Justice Walia.

Meanwhile, Adv. Otsile Rammidi representing the secretary of the IEC, who was cited as the first respondent, said the applicant must advance enough reasoning in order to be granted leave to appeal. 

Adv. Rammidi also said the applicant had advanced ill-health as one of the potential reasons to be considered, if the appeal was deemed to have been filed out of the 90 days. 

“It is alleged that the applicant was undergoing medical treatment and we are not sure if that situation stopped him from filing his appeal,” he said.

Thus, he concluded that there were no grounds advanced by the applicant to challenge the credibility of the determination that was made by the High Court.

On the other hand, Counsel Busang Manewe, representing the second respondent, Mr Kesebelwang Gaorongwe of the Botswana Democratic Party (BDP) who emerged victorious at the polls, argued that the applicant had enough time to file his case within the 90 days.

“It appears on his affidavit that he has enough time to attend to his farming implements, plough, harvest and sell his produce. 

Our contention is that the applicant prioritised his farming activities over filing of the affidavit and even failed to provide reasonable grounds that delayed his application,” said Mr Manewe.

Mr Manewe also concurred with Justice Walia that there was no need for the applicant to raise issues that were known to other parties. 

He said issues raised by the applicant as grounds for appeal were settled by the High Court based on the evidence advanced by witnesses.

“The lower court had an opportunity to listen, indulge with and observe all the witnesses and therefore had an opportunity to make an informed decision and therefore there is no good reasons to debate from its line of authority,” he said.

 

He said the applicant had not demonstrated that the High Court had erred in dealing with the petition. ends