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Francistown High Court throws out UDC petitions

Published

2 months ago

December 24, 2019

Two out of a panel of three judges in Francistown yesterday ruled against the Umbrella for Democratic Change election petitioners.

Haskins Nkaigwa, Sam Digwa and Micus Chimbombi had petitioned the Independent Electoral Commission, Botswana Democratic Party Secretary General Mpho Balopi and the Vice President Slumber Tsogwane respectively.

Justices Tshegofatso Mogomotsi, Phadi Solomon and Bashi Moesi read the ruling yesterday at the Francistown Regional Magistrate Court.

While both Mogomotsi and Solomon were unanimous in the ruling, there was however a dissenting judgement from Moesi.

In dismissing the UDC petitions, the two judges unanimously agreed that there was no compliance from the three petitioners.

They stated that without a proper description of a locus standi (the right or capacity to appear in court), there’s a fundamental irregularity in determining the right of audience before court.

Reading the judgement, Mogomotsi reiterated that an applicant or litigant who fails to make averments (statements) which are necessary to show that he has locus standi does so at their own peril, for it forms the very basis upon which his presence before court draws its life.

“The general rule is that an applicant must stand or fall on its founding affidavit and the facts alleged therein,” Mogomotsi said.

She said the locus standi of IEC who most of the allegations and the petitions are directed has not been adequately provided to satisfy the court regarding its legal capacity to sue or to be sued.

“The fact that IEC is a creature of statute does not automatically clothe it with the requisite locus standi. Not all statutory bodies have the right to sue or be sued in their own names,” she said, adding that it’d be erroneous and presumptive of the court to make such an assumption.

She further said it was not the court’s duty to comb through for papers filed of records in search of the parties locus standi.

However in his minority ruling, Judge Moesi argued that locus standi is outdated and no longer presents an insurmountable challenge to litigation which has public interest attached to it.

He ruled that the court should proceed to deal with substance of the case.

He said this would be in the interest of justice, the concern of the public and the upholding of the rule of law. Moesi said an election petition falls under the category of constitutional litigation and carries with it considerable public interest.

“In matters of public litigation this court would be remiss and indeed guilty of committing an absurdity if it denies a genuine and bonafide litigant access to justice on a weak argument of lack of standi by the IEC when the constitution clearly assumes that such action should from time to time be taken against such a body,” he said.

The judge said in arriving at his ruling he was guided by the growing jurisprudence in the country which has established the legal positions that the provisions of the rules of court were not adopted by the Electoral Act and were of no application to the the petitions and also that the power of the courts to consider the irregularities of the elections was not derived from any inherent jurisdiction nor did it arise from common law, but was to be found within the corners of the Electoral Statutes.

“Court shall proceed to deal with substance of the case and costs awarded in favour of the petitioners,” Moesi observed although his ruling was defeated by the views of his fellow panelists.

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Son of BDP women’s wing SG accused of forging DIS boss signature

Published

4 hours ago

February 19, 2020

Sharon Mathala

Yes I was detained and questioned- Maruapula

A man rumoured to be romantically linked to the reigning Miss Botswana, Oweditse Phirinyane was this week allegedly nabbed and questioned for impersonating a Directorate Of Intelligence Services (DIS) agent.

The suspect, Mompati Maruapula is the son of Botswana Democratic Party (BDP) women’s wing secretary General, Neo Maruapula.

He reportedly attracted law enforcement officers’s attention by uttering a false document, complete with a forged signature of the Director General of the DIS Peter Magosi as ‘proof” that he was employee of the DIS when he was not.

He allegedly produced the fake proof of employment in an attempt to fraudulently purchase a BMW vehicle limited addition at one of the car dealers in Gaborone, an eyewitness has claimed.

“The car dealership phoned the DIS to confirm and that is when law enforcement agencies were alerted and a sting operation was set in motion to nab him,” the source further narrated.

He was then told to come back at 2Pm for the car only for him to find security agents waiting to catch him.

Asked to comment on the incident Maruapula explained that he was not charged but simply questioned.

“They (Police) said they would get back to me. I have not yet been charged with any crime. I was briefly detained and released yes. It is true,” he said in a brief interview.

The DIS when quizzed about the matter referred The Voice to The Botswana Police.

“I cannot confirm nor deny your questions. Please liase with the Police for a full brief,” DISS spokesperson Edward Robert said.

Miss Botswana also refused to comment saying she would like to keep her private life private and quickly handed the phone to the recently divorced Maruapula who was in her company at the time.

News

Montshiwa’s murder trial yet to start

Published

19 hours ago

February 18, 2020

Portia Milo

Trial date for the late Fairground Holdings Chief Executive Officer (CEO) Michael Montshiwa’s murder case has been postponed as Judge Michael Mothobi is on sick leave.

The main suspect in this matter attorney David Modise and his co-accused- a traditional doctor Tumelo Tshukudu, today appeared at the Gaborone High Court for mention and confirmation of trial dates.

The 35-year-old lawyer is linked to the death of his client, Montshiwa, and he is facing another charge of stealing by agent.

He is currently out on bail awaiting trial.

Montshiwa was shot and killed on the 18th of October, 2015 at his house in Block 6 Gaborone.

It is said that Modise was the last person to communicate with Montshiwa just minutes before the CEO’s fatal shooting.

Police investigations revealed that between June 30 and October 17, 2015, Modise withdrew about P245 000 from Montshiwa’s Trust account.

The money according to the Investigating Officer Detective Senior Superintendent Sergeant Marapo, was entrusted to Modise for the purchase of a plot for Montshiwa in Mogoditshane.

It is alleged that when Montshiwa realised that the money was missing from the Trust account, he communicated with Modise demanding to see him at his house on the night he was killed.

News

DPP resuscitates 15 year ‘cold’ murder case

Published

20 hours ago

February 18, 2020

Bame Piet

Nearly fifteen years after he allegedly hacked three people to death, the wheels of justice have started turning and the Directorate of Public Prosecutions (DPP) are reopening the files to bring murder suspect Mokolopi Mothusi to book.

The accused is facing a triple murder charge after he allegedly hacked to death a man, his wife, and their child with a tomahawk axe sometime in 2005 at Khonkhwa settlement near Jwaneng.

The matter appeared to have been forgotten for sometime, but on Monday the DPP reopened Mothusi’s files and he showed up in court walking with the aid of crutches.

Initially the matter was scheduled for trial for several dates in May but had to be postponed to December to allow the defense to locate witnesses.

“We are faced with a difficult matter here, so far the state had intended to call 20 witnesses, but we are informed that five of them have since died. We will also need time to locate our witnesses who are scattered somewhere in the desert,” said attorney Tengo Rubadiri who is defending Mothusi.

The matter was postponed and trial dates have been set for December 10^th up to 15^th 2020.

Meanwhile, in a separate matter, Kagiso Sejamabogo will have to wait a bit longer in prison before he is granted bail pending appeal of his 17-year prison sentence for various offences.

Although he has been in prison since 2012, Sejamabogo will have to wait until June before the High Court hears his appeal because a typist who was recording his case record at Molepolole Magistrates Court has been transferred to Mochudi.

Since 2018, Sejamabogo has been trying to get his case record from the court but the staff have been too busy with other engagements at the expense of his agonizing prison remand.

Justice Michael Leburu ordered the Molepolole Court Clerk to avail the record on the 29^th of May and that the appellant will present his argument on June 22^nd.

The appellant has had his prison term reduced to 11 years and has so far served eight years in prison.