Gaborone — Trial on election results petition by Mr Mogalakwe Mogalakwe commenced yesterday after the Gaborone High Court ruled the petition compliant with the law.
A panel of three judges January 21 ruled that the election results petition was in compliance with the law and therefore must proceed to trial. Trial commenced the same day.
Delivering the ruling, Justice Omphemetse Motumise said though trial had been set for Monday, the petition was further subjected to scrutiny after the court had advised both the petitioner's and respondents' attorneys to advise as to whether the petition was compliant with sections 117, 118 and 119 of the Electoral Act.
The provisions in question are in relation to the security of the petition and the court wanted to establish whether the petitioner was compliant to file a petition by himself without any surety.
Following deliberations by both parties, Judge Motumise said the court had established that provisions under section 117 (C, D, and E) were peremptory and therefore must be fully complied with.
"Yes the panel has unanimously established that the petition is compliant with the provisions of the act," said Justice Motumise.
The ruling indicated that even though the respondents had given the petition the go ahead, the court had the power not to condone non-compliance.
According to the ruling, the court has the powers to raise points in Limine (preliminary points).
Deliberating on the point in Limine raised by the court, Counsel Faustino Ngandu said as long as the petitioner had given security, the petition would be compliant with Electoral Act provisions.
Mr Ngandu further said Mr Mogalakwe's surety was sufficient as it was never challenged by the respondents.
The lead attorney for the first respondent (IEC), Advocate Andrew Redding, said his client had never objected to Mr Mogalakwe's petition.
"We are deliberating on this preliminary point at invitation of the court," said Adv Redding.
The law, he said, provided that in filling a petition, in relation to issues of security, there must be a petitioner, who was the principal debtor and must be supported by sureties.
"The law mandates one to have sureties, to ascertain as to who will cover the costs of the petition in a case the principal petitioner fails to do so," he said.
He said anyone challenging the outcome of an election must fully comply with the provisions of the law as such applications put the court under strenuous situation as they must be addressed within a stipulated period.
Mr Redding said the court had to establish whether the petition was compliant with the law as it was filed without sureties.
For his part, lead counsel for second respondent, Mr Busang Manewe said during the final case management conference on January 15, the judges raised preliminary points to be considered before proceeding to trial.
Mr Manewe pointed out that the court's contentions were in relation to mandatory provisions of section 117 of the Electoral Act dealing with security.
He said according to sections 117, 118 and 119, the petitioner must bind himself and have at least four sureties.
A petitioner alone was not sufficient to provide security and sureties would be required to cover the costs in the event the petitioner failed to pay.
He said the court was mandated to ensure petitions that proceeded to trial were intact and was empowered not to condone non-compliance of any form by petitioners.
Mr Manewe argued that Mr Mogalakwe's petition was not compliant with the stated provisions of the Electoral Act and was therefore a nullity.
"The petition must be dismissed with costs," he said.
Mr Mogalakwe is petitioning the outcome of Shoshong constituency's Mosolotshane/Moralane Ward elections won by the BDP candidate in the October 2019 poll. The petitioner's team is expected to call 13 witnesses.
Source : BOPA