Gaborone — Two of three Gaborone High Court dismissed with costs Mr Entebetse Boitshwarelo's election petition case on February 18.
Mr Boitshwarelo, an independent council candidate in Serowe West constituency's Mmashoro ward, was challenging the election results citing irregularities.
The duo, Omphemetse Motumise and Itumeleng Segopolo dismissed the petition while Justice Gaolapelwe Ketlogetswe contended that it was valid.
Delivering the majority judgement, Judge Motumise said the issue of contention was that the returning officer erroneously accepted some ballots as valid.
The appellant had argued that had the returning officer rejected the disputed ballots, he would have emerged victorious, said Justice Motumise.
Mr Boitshwarelo contended that 26 ballots were unlawfully received.
Judge Motumise said the court must therefore establish whether the ballots ought to have been rejected, determine how accepting them had contributed to the election outcome and also establish if the returning officer had violated the Electoral Act.
He said even though the petitioner had stated in his evidence in chief that he had objected to the admission of the contended ballots, there was no record of the objection.
The petitioner relied on the training offered by an election officer specifying that a ballot would only be valid if a cross (X) was placed in the designated box but Parliament never prescribed the mark to be used on a ballot.
He noted that some ballots were marked outside the prescribed box and therefore the court must determine whether such a ballot ought to be rejected even though the voter's intention was clear.
There were instances where a voter identified their party of choice by its colour or symbol, he said.
He said it was within the voter's right to either place the mark on the symbol, next to the symbol or the designated box.
"There is no other conceivable reason to derive from what the voter was intending to do, other than choosing their preferred party or candidate, said judge Motumise.
Where the voter's choice can be determined without any uncertainty, such a ballot must not be rejected and so a mark next to a party symbol clearly shows the voter's intention," he said.
The judge said the voter's choice was clear and unequivocal.
Judge Motumise concluded that in admitting the contended ballots as valid, the returning officer was compliant with the law.
He said the disputed ballots were lawfully accepted.
Meanwhile, Judge Gaolapelwe Ketlogetswe contended that the second respondent was unduly elected and declared Mmashoro ward council seat vacant.
Judge Ketlogetswe ruled that the IEC must cover the costs of the petition.
He said the respondents failed to call witnesses to counter the petitioner's case and substantiate theirs.
Judge Ketlogetswe said respondents also failed to nullify the petitioner's view that the returning officer refused to record his contention of the disputed ballots.
Therefore the court had no other option but to accept the version of the petitioner, he said adding that it must take into consideration the returning officer's failure to record the petitioner's objection.
Judge Ketlogetswe said the IEC had designed the ballot paper with a designated portion to place an X but voters marked the ballots on portions not designated to do so.
Voters have themselves to blame as they failed to comply with the provisions of the law, he said.
"Voters must not be allowed to freely choose how and where to place the mark on the ballot paper, they must comply with the law, " he added.
He said accepting the 26 contended ballots as valid had affected the election outcome saying the petitioner would have emerged victorious by two ballots.
The returning officer's acceptance of the ballots contravened the Electoral Act, he said.
Judge Ketlogetswe said if the IEC wanted to be taken seriously, voters must follow the prescribed manner of voting.
Source : BOPA