Mogalakwe's bid ends in a double whammy
Tsaone Basimanebotlhe | Tuesday August 24, 2021 14:41
As his property goes under the hammer in Mahalapye village, Mogalakwe suffers yet another blow after Justice Omphemetse Motumise threw out with costs his bid to have a writ of execution of his property ceased.
Delivering the judgement Motumise said: “The applicant has failed to show that the matter is urgent. It is clear that the applicant had accepted the taxed amount and if not, he would have followed the court process to object to the taxed bill. Therefore, the application is dismissed with costs".
Mogalakwe had made a plea that he had filed a review application in which he wanted the P392,117.68 bill to be given another look after he incurred election petition legal costs in a previous case in which he and others lost.
He argued that the deputy registrar did not properly tax him. Equally, he reasoned that the registrar had failed to interpret the court judgement properly. “If the sale in execution is allowed to proceed, I stand to suffer prejudice as the sale will have the effect of defeating the review application,” argued Mogalakwe, who was vying for councillorship under the Alliance for Progressives banner in the 2019 General Election, which polls he lost and protested.
“I verily believe that the review application will be successful and the amount of the costs to be paid to the BDP will be far less than the taxed bill. The matter is made even more urgent as BDP has advertised for sale in execution of the attached property, with the full knowledge of the application for review and the stay of execution filed of record.”
He stated that the said advert was prejudicial to his review application and was intended to force him to settle with the BDP on amounts that he felt were unreasonable, and should be re-taxed.
Mogalakwe argued that stood to suffer irreparable loss if the property if sold before the application for review of the taxation were to be concluded, as he would not be able to get the property back once sold by public auction.
He had hoped there was a possibility that the taxed amount in the current writ of execution could be reduced if the court had found the matter in his favour.
The former councillor said at the time that it was necessary to interdict the BDP sheriff from removing any property pending final determination of the review proceedings.
Early last month, the BDP rejected Mogalakwe’s application citing that it was fatally defective in terms of the taxation rules.
The ruling party said the review application was defective as it sought to challenge the decision of the taxing master while there was a statutory notice to its representative.
“The application is fatally defective because it seeks to challenge the decision of the taxing master, but her statutory representative being the Attorney General has not been cited. Order 58 in no way detracts from the provisions of the State Proceedings Act in this regard,” a BDP attorney has said.
The ruling party contended that Mogalakwe had not filed a statutory notice to sue even though he was suing a public officer for the exercise of their powers.
In addition, the BDP attorneys indicated that Mogalakwe had not given the reason why he has not complied with the provisions of the State Proceedings Act by serving a notice to sue the government. Therefore, they contended that the application was, “...nullity and is liable to be dismissed with costs”.
The BDP attorneys had said the application purported to have been brought in terms of Order 58 of the High Court but failed to comply with the requirements of Order 58.