Oarabile Mosikare
27 March 2008
Gaborone — The Botswana Congress Party (BCP) will not discipline its member who took the party to court early this year. Instead it has decided to embrace Itumeleng 'Shine' Ngakaetsile who had unsuccessfully launched proceedings against BCP and Stephen Makhura challenging the decision to disqualify him from standing as a candidate in its primary elections.
Ngakaetsile was barred from standing as a Selebi-Phikwe East parliamentary candidate for the forthcoming general election. BCP secretary general Taolo Lucas said in an interview with Mmegi yesterday that the court process was over and Ngakaetsile was still a BCP member. "It is our hope that Comrade Ngakaetsile will resume work with the party and contribute meaningfully to the attainment of its objectives," said Lucas.
He asserted that as a party, the BCP has a bright future and if Ngakaetsile distinguishes himself as a loyal and dedicated member of the party, there is nothing that can stop him from realising his political ambition within the framework of the organisation. "And as a general note, we wish to discourage our members from seeking redress from courts of law when they are aggrieved.
"They should trust internal processes because as an organisation, we endeavour to conduct our affairs with fairness, without fear or favour," he said. Dismissing Ngakaetsile's court bid, Justice Zibani Makhwade noted that it was incumbent upon Ngakaetsile to show that he had a basis for the review that he sought. He said it should be recognised that there were three broad categories that a review would fall into. These are: illegality, gross unreasonableness, and failure to adhere to procedure. The judge said the applicant's affidavit ran into 63 paragraphs but did not set out clearly what the applicant's complainant was. Justice Makhwade said it was incumbent upon an applicant to state clearly in the affidavit what his complaint was. "This enables the other litigant to be able to focus on the issues and to respond to them. It also enables the court to know what the issues between the parties are.
"From a reading of the affidavit, it would appear(from) the applicant's position that his disqualification was a result of the influence of the third respondent (Nzwaligwa Nzwaligwa) against whom he was pitted to contest in the primary elections," stated Justice Makhwade. He noted that what Ngakaetsile failed to do was to demonstrate what Nzwaligwa did in order to influence the decision of the Central Committee (CC) and what the CC did which could be regarded as a procedural impropriety. Justice Makhwade stated that in Ngakaetsile's affidavit, he seemed to allege that the vetting process was done with ulterior motives.
With the explanation given that there was an amendment to the timetable and no substantiation of the allegations made about Nzwaligwa's influence, there was no proof of impropriety. "No allegations have been made that the vetting committee committed any procedural errors in the conduct of the exercise."
The judge stated that a reading of Ngakaetsile's founding affidavit seemed to suggest that it was a contravention of the regulations to inform the applicant five days from the date of election that he had been disqualified. "The regulations do not however prescribe a time limit within which the outcome of the vetting process should be notified to the aspirants. While it may be desirable to set time limits, it is not the function of the courts to do so," observed Justice Makhwade. He added that the CC's role is not merely to endorse the decision of the vetting committee. It was the CC that had a final say in the matter. He said the CC could either approve or disapprove the decision of the vetting committee.
What this meant practically was that the vetting committee made the recommendations. "At the conclusion of the exercise, the vetting committee came to the conclusion that the applicant had committed some wrongs but recommended nevertheless that the applicant be allowed to contest the elections."The report was presented to the Central Committee which made a final decision. This appears clearly from the affidavit of Dick Bayford, who chaired the Vetting Committee. There is no provision in the regulations for hearings to be conducted by the Central Committee before making a final decision. The applicant is clearly wrong to say that he had legitimate expectation to stand as a candidate. He had no right that was taken away. No promise either was made that the Central Committee would call him to make representation before a decision was taken."
Justice Makhwade observed that in his submissions, the applicant stated that because the third respondent, Nzwaligwa, had not filed any papers in opposition to the application he was therefore entitled to the relief sought. "This submission is clearly erroneous. The main contention by the applicant was against the decision by the first respondent to disqualify him from standing as a candidate in its primary elections. The decision is not predicated on whether or not the third respondent is also allowed to stand. The first and second respondents have put forth opposition to the application. The applicant has failed to demonstrate that the decision taken by first respondent is assailable.
The reasons given above, the application is dismissed with costs," Justice Makhwade ruled. Attorney Gabriel Komboni, a managing partner at Phumaphi Chakalisa and Company, represented the BCP.
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