The Botswana Democratic Party (BDP) says the application by its member Kamal Jacobs filed before the High Court challenging the legitimacy of Mokgweetsi Masisi as party president is incurably defective for want of urgency.
The party says the reasons advanced as “substantiating urgency do not pass muster”.
This came after Jacobs made an application to court stating that Masisi does not have powers to appoint any party structure. Jacobs who lost BDP primaries to Dr Thapelo Matsheka for the Lobatse constituency said that Masisi’s legitimacy to the BDP presidency is questionable.
The BDP attorneys at Bogopa, Manewe, Tobedza and Company said the application has failed to meet the threshold or comply to the required standard set by Order 12 Rule 12 of the Rules of the High Court, 2011. It says the matter therefore on that point falls to be dismissed.
The BDP said the applicant (Jacobs) has failed to demonstrate on his founding papers that the party being the first respondent has the right to be sued and to sue, the nature of BDP hence it derives the capacity to litigate has not been pleaded and/or is not apparent from the founding papers.
The party said the same defect also applies to the various organs of the party, which have been cited in proceedings as respondents such as Masisi, Peter Siele, Kingsley Sebele, Southern region and Matsheka. It further said the defect therefore renders the
The lawyers argued that Jacobs has failed to attach the BDP constitution and regulations for the conduct of primary elections, which he referred to and upon which the suit is premised and or predicated upon.
“Since the law is that the constitution of a political party is a contract between the party and its members, failure to attach it to the founding documents also offends order 20 rule 12 (1) of the rules of the High Court, 2011.
“This failure and/or omission is fatal and incurable on account of the following; the parties brought before the court evidently owe their existence to the said constitution; the alleged election irregularities complained of are based on alleged breach of the regulations,” the papers stated.
They argued that President Masisi enjoys immunity from civil proceedings for any action done by him on his personal capacity, which include as acting as BDP president per section 41 (1) of the constitution of Botswana. The BDP submitted that the case be dismissed and costs be awarded Jacobs.
The case is before Justice Chris Gabanagae on Thursday.