Butale's ship capsizes
Innocent Selatlhwa | Monday August 7, 2023 06:00
Butale, who approached the court on urgency after his latest suspension which was then followed by expulsion from the party, failed to convince Justice Zein Kebonang of the Gaborone High Court that he was wrongfully kicked out. He was of the view that some power-hungry members of his party wanted to 'steal' his presidency.
As such he wanted an order that would see five respondents in the matter jailed. Lawrence Ookeditse, Tshekedi Khama, Barulaganye Letang, Dr Kolaatamo Malefho and Mephato Reatile were the first to fifth respondents in the matter respectively.
Butale was suspended by the party’s disciplinary committee and accused of having caused and encouraged some members of the party to campaign against the BPF and its decisions at the recent Mmaphula East ward by-election in Palapye.
He was also accused of having failed to declare funds received on behalf of the party and for allegedly working with party rivals to destabilise it. Following his suspension, Butale retaliated by recalling his vice president, Reatile, the secretary for information and publicity, Ookeditse, and the secretary for health, Dr Kolaatamo Malefho, from their positions in the national executive committee (NEC) and later suspended them from the party.
He was then expelled from the party following which he then rushed to court to seek redress. Butale's urgent application requested the following orders: Treat the matter as urgent, dispensing with relevant court rules; issue a rule nisi calling upon the respondents to show cause for their contempt of the court order and impose a 60-day imprisonment; suspend the implementation of the 60-day imprisonment order until the return date; Temporarily stay the Applicant's suspension and expulsion pending the return date, allowing him to remain recognised as the president.
He also wanted the court to consider "Claim B" alongside "Claim A" on the return date, incorporating the contempt order as part of "Claim B." "Claim B" of the application challenges the lawfulness of the Applicant's suspension and expulsion, deeming any subsequent National Executive Committee meetings unlawful and void. The Applicant also seeks an order declaring the Respondents' actions contrary to the Botswana Patriotic Front constitution and contemptuous of a previous court order issued on April 26, 2023.
The pivotal issue in the urgent application revolves around the disputed membership of Letang in the Disciplinary Committee (DC) of the BPF as of December 8, 2022. Letang allegedly issued letters of suspension and expulsion against the Applicant, which Butale contends are fake due to the disputed membership.
The court, however, rejected the applicant's interlocutory application seeking a trial to determine Letang's membership in the DC. The judge stated that the Applicant should have foreseen a material dispute of fact, and therefore, the issue should have been referred to trial and cross-examined rather than proceeding through motion proceedings.
“In my judgement, the applicant foresaw that a material dispute of fact was inherently laden the present case. That explains why he filed the interlocutory application seeking to refer the membership of Letang to trial.
The application to refer the issue of Letang's membership of the DC to trial is therefore declined,” he said. On the main application, Butale’s attorney Lesedi Rammika submitted that in respect of the main application, the Applicant only wished, for the time being, to deal with Claim A and not B of his Notice of Motion as Claim B related to declaratory orders which could not be obtained by way of urgency.
According to Rammika, Claim A, which is related to contempt proceedings, is capable of immediate adjudication as such proceedings were by their nature inherently urgent.
Attorneys Kago Mokotedi and Joram Matomela for respondents objected to the approach adopted by Rammika and argued that it amounted to essentially a splitting of the same "cause of action" and offended the claim-splitting doctrine which requires that a part should not split up his demands or claims or prosecute them piecemeal so that finality in litigation is attained. Justice Kebonang held that the test in deciding whether it was appropriate to argue only one claim as opposed to all and whether the conduct of the Applicant amounted to inappropriate claim-splitting, is in his view, whether the first claim, if assumed to be final, would preclude the second claim.
“Whilst I accept that Claim A would not preclude the hearing of Claim B in due course, on a proper reading of the reliefs sought in Claim A, it is clear to me that the Applicant seeks much more than just contempt orders against the Respondents but also to have his "purported suspension and subsequent expulsion through correspondence of the 3rd Respondent and 2nd Respondent...stayed" and that he remains "recognised as President in line with the rule nisi issued by Judge Motlhabi under UAHGB-000104-23," he said.
Justice Kebonang also found that the reliefs sought by the Applicant in Claim A have thus been expanded beyond the contempt application. He stated that while it is theoretically possible to separate claims A and B, the issue relating to the Applicant's dismissal and suspension from the party appears clearly in both claim A and B and would require to be dealt with once and for all, notwithstanding the separation advocated by the Applicant. On the issue of urgency, Justice Kebonang said it is a matter of evidence, to be inferred from the circumstances and facts disclosed in the founding affidavit. “While the Applicant was suspended from the party on the 4th of July 2023 and subsequently expelled on the 13th of July 2023 and only came to court on the 14th of July 2023, I am satisfied that in relation to the contempt application, he acted with the necessary dispatch.
His approach in engaging with his protagonists following his suspension on the 4th of July 2023 before filing this application cannot be held against him, when one considers that he approached the court by filing the application on the 14th of July 2023. As stated above, some matters are extremely urgent while others are not.
The matter falls within the latter proposition when one considers the Applicant's attempt to reach out to the Respondents,” he said. In his view, Butale need not have shown the absence of an alternative relief in the contempt application. “This is because the object of contempt proceedings is to vindicate the court's honour consequent upon the disregard of its order and to compel performance in accordance with the order. There can be no alternative relief in due course in a contempt application.
All the applicant needed to show is or was that there was an order ad factum praestandum. An ad factum praestandum order is an order that requires one either to do, abstain from doing a particular act or to deliver a thing,” he said. Regarding the stay application, Justice Kebonang said although Rammika did not address the court on the matter, it is trite that stay applications are inherently urgent. One is not, however, excused from satisfying the requirements of urgency by shouting showing among other things that he or she has no alternative relief in due course. “In terms of clause 41 of the party's constitution, the Applicant is entitled to appeal against his suspension or dismissal to the Appeal's Board.
The Appeal's Board is an internal domestic remedy available to the applicant. In terms of the party's constitution, the Applicant thus has a remedy available to him in respect of the stay application reflected in his Claim A. In the papers before me, the applicant has not sought to argue that he exhausted internal remedies or that they were not effective,” he said. Justice Kebonang said the failure to exhaust local remedies must, as a consequence mean that the decision to suspend and expel Butale from the party by the DC must notwithstanding a challenge to its authority, remain intact and valid. Justice Kebonang dismissed contempt claims.
“The Applicant was suspended and dismissed by the DC of the party, a committee empowered to act independently of the NEC and the party President in terms of clause 40.5 of the party's constitution. There can be no contempt if party organs, committees, regions and elected officials act in terms of the authority conferred on them by their constitution with respect to a different cause of action not adjudicated upon by Justices Phuthego and Motlhabi,” he said. A point of disagreement came on the issue of whether the BPF should have been joined to the proceedings and whether a resolution was required authorising the current proceedings by the applicant. Rammika submitted that the party need not be joined, as the Applicant was challenging the unlawful acts of an invalid party structure.
To join the party is to give recognition to the unlawful acts of the invalid structure and would therefore be self-defeating, so maintained Rammika. Mokotedi on the other hand argued that the Applicant had instituted the current proceedings not in his capacity but as President of the BPF. He could not act in the latter capacity without joining the party and without a formal resolution from the party authorising the current proceedings. “Whatever the point of disagreement, what is not in doubt is that the parties before me are all members of the BPF.
They all claim to be acting in the best interest of the party and they accuse each other of breaching and disregarding the party constitution. Who then is better placed to shed light on these counter accusations? In my view, the BPF was both a necessary and indispensable party to the resolution of the dispute and standoff between the parties and should have been joined to the proceedings. I am persuaded that in the absence of a joinder and resolution of the party, the current proceedings become merely personal proceedings at the behest of the Applicant,” Kebonang said. Justice Kebonang was not satisfied that Butale had made out a case for the reliefs he sought. The judge dismissed both the interlocutory and main applications by the former Assistant Minister of Investment, Trade and Industry.
"Further, in the absence of a stay, the decision of the disciplinary committee to suspend and dismiss Butale from the party remains valid and enforceable until set aside. The Applicant has failed to vitiate his suspension and subsequent expulsion in that such decisions were lawfully taken by the party's appropriate forum, being the disciplinary committee," Kebonang said.
On the issue of costs, Butale had asked for punitive costs in the event he succeeded in his application. Justice Kebonang said he found no reason why the same order of costs cannot be made against him. “Consequently, the Orders I give are as follows; the Applicant's interlocutory application is dismissed with costs; the Applicant's main application is also dismissed with costs; and the costs for both applications are to be on an attorney-client scale”, Justice Kebonang concluded.