More drama as IEC seeks expedited appeal
Lebogang Mosikare | Monday November 27, 2023 06:00
The Commission in the notice of motion filed before the Court of Appeal (CoA) wants an expedited appeal. One of the UDC attorneys, Owen Nsala, told members of the press late on November 21, 2023, that the UDC received documents from the IEC that were filed at the country’s apex court, CoA.
The appeal is in relation to a November 10 order that was delivered by Justice Ketlogetswe. On November 10, 2023, Justice Ketlogetswe of the Francistown High Court reaffirmed the October 31 rule nisi which allowed the UDC to observe and monitor the voter registration.
The IEC now wants the case to be heard in terms of rule 11 (2) of the CoA. The IEC also wants an order directing that the implementation and executing of the orders of a court a quo (lower court) at the paragraph above be and is hereby stayed pending the hearing and determination of an appeal against those orders to the CoA and on an expedited appeal. The IEC also wants an order providing directions on the expedited preparation of the record of appeal, the filing of heads of argument and the allocation of a date for the hearing on an urgent basis.
The IEC also wants the apex court to order that the costs of the application, including costs of two counsel, shall be costs in the appeal, save on the event of opposition by any of the respondents, in which event such opposing respondent be ordered to pay costs of the application jointly and severally, including the costs of two counsel and further and/or alternative relief. While the application that the IEC filed before the CoA was not a subject of proceedings that took place before Justice Ketlogetswe on Wednesday, Nsala has indicated that the UDC was totally shocked by the move taken by the IEC because the main application of the UDC and other interlocutory applications that are currently before Justice Ketlogetswe have not been fully ventilated. Speaking of applications that are not fully ventilated, the main issue before court on Wednesday was the preferable date for all parties involved in the case. On Wednesday, advocate Duma Boko of the UDC told the court the parties were before court to deal with the decree nisi that Justice Ketlogetswe issued on November 10, 2023 which was returnable on November 22, 2023, a joinder application by the Attorney General (AG) and an application for Ketlogetswe to recuse himself from presiding over the matter that was filed by the IEC.
“In so far as today is the return date of the decree nisi that was issued on November 10, 2023, we are of the view that the three applications have to be dealt with today. I must candidly state that the parties had preliminary engagements to sort out these issues. The parties in their discussions wrestled with the management of these three applications particularly the joinder and recusal issues. The respondents request to be given time to file their reply and broadly seek to be given a scheduling order agreed by the parties. We did not agree on the date when the matters will be argued.
The two respondents seem to desire that the matters be argued on December 4, 2023 while the UDC felt that a much earlier date (November 29, 2023) will be ideal to argue the matters,” Boko said. Boko also stated that the respondents should pay the costs of Wednesday’s court appearance. “We are here at the behest of the respondents. We received the answering affidavit of the AG late yesterday but we have been able to reply. We were amenable to defer the hearing of the joinder and recusal applications,” Boko added. Attorneys Otsile Rammidi and Busang Manewe for the IEC and AG, (Chief Justice Terrence Rannowane, Acting Registrar of the High Court, Justice Bengbame Sechele and Justice Taboka Slave) confirmed that they met with the attorneys of the applicants.
They, however, said while there were issues of convergence during their discussions on how to manage the three applications, there were also issues of divergence. Rammidi proposed to be given time to deal with the UDC papers in relation to the joinder application because they received it late on Tuesday.
Rammidi proposed that the matter be postponed to December 4, 2023 in order to allow him to thoroughly peruse the UDC papers so that they can properly ventilate the matter. For his part, Manewe said the AG will not file anything in relation to the application for Justice Ketlogetswe’s recusal. “We will only deal with the joinder application. The question that then arises is whether we are ready to proceed with this application. The answer to that question is that we are not ready. We are based in Gaborone and we were served with the UDC papers late on Tuesday after 5 pm. The document that we were served with is voluminous and spans 47 pages with 101 paragraphs. We tried to read this document in the limited time that we had and we are of the prima facie view that there is a need to file a replying affidavit. We also discovered this morning that the copy that we were served with has a blank page (14) although it is initialled. We are unable to transition from page 13 to 15.
That caused some discomfort on our part. It is clear that the pleadings have not been closed,” Manewe submitted. Manewe also submitted that it was not the UDC’s call to direct that Justice Ketlogetswe should preside over the matter because there is an application to the effect that he (Justice Ketlogetswe) should be added as one of the respondents in the matter. “At this point in time, there is no indication from Justice Ketlogetswe whether or not he (Justice Ketlogetswe) will recuse himself because he has not brought any answering affidavit to that effect. As the representatives of the AG, we know that there are discussions of whether his Lordship will be represented,” said Manewe. At the end of Wednesday’s proceedings, Justice Ketlogetswe postponed the matter to December 1, 2023. Justice Ketlogetswe then made an order that on the above date, he will first deal with the joinder application depending on what will be submitted, then the recusal application and then the empanelment issue will follow.