Butale suffers another loss
Innocent Selatlhwa | Monday August 28, 2023 06:00
The High Court has dismissed ousted BPF president’s, Butale, urgent application to reclaim his leadership of the party. The stay of execution for the same was thrown out by Gaborone High Court Justice Itumeleng Segopolo on grounds that it was not properly before him.
Butale filed a review application before Justice Michael Motlhabi and wanted stay of the decisions of BPF and its National Executive Committee (NEC) to suspend and expel him, which was communicated in letters dated July 4, 2023 and July 13, 2023 respectively. The respondents in the current matter are the BPF, its NEC and current president Mephato Reatile.
Just before he could listen to the matter, Segopolo cast doubt that the matter could be wrongfully before him. He said the application for stay ought to have been listened to by Kebonang as the judge who made the ruling upholding Butale’s expulsion and other matter the BPF leader sought redress on or be taken up at the Court of Appeal (CoA).
Butale’s attorney, Kole Kole, was however steadfast that they were at the right place stating that the cases were materially distinct from one another. The back and forth exchange went on for almost two hours when Segopolo gave respondents’ attorney, Kago Mokotedi, a chance to speak. Mokotedi would refer the court to one judgment, which he said was from 1993, stating that a stay application should be made before either the court that would listen to the review application or an appeal.
While Segopolo suggested that the matter be referred to the relevant court, Mokotedi refused and called on the court to make a final determination. He insisted, stating that he had shared the judgment that could have led Kole to withdrawing the matter, but he went ahead with the matter. Segopolo would then strike the matter out stating that it was wrongfully before him. He said it was upon the applicant whether to file the matter again at the relevant court or apply for an expedited appeal.
Butale’s case Through his notice of motion, Butale wanted an order directing and ordering that the matter be heard as one of urgency and that the ordinary rules of court relating to times, forms and methods of service be dispensed with in dealing with this matter as one of urgency.
He also wanted a rule nisi issued returnable as soon as the matter may be heard, calling upon the respondents to appear and show cause why an order should not be made in the following terms: "The Applicant be and is hereby granted a stay of the execution and implementation of the decisions of the BPF and its NEC purportedly made and/or recommended by the Disciplinary Committee of the party on July 4, 2023 and July 13, 2023 respectively, to suspend and expel him as member of the Respondent and/or as the party president, pending the final end and determination of the review application filed simultaneously herewith to set aside the suspension and expulsion of the Applicant before the court," reads his court papers. Furthermore the papers say, "the respondents are interdicted from taking any steps to organise an election or to appoint and/or approve any other person or candidate as party president other than the applicant; alternatively if any such appointment is already extant, then such appointee be and is hereby interdicted from discharging the functions of the office of president of the BPF and/or otherwise hold himself out to be president of the BPF''. He also wanted a rule nisi issued returnable calling upon the respondents to appear and show cause why an order should not be made directing and ordering the BPF, its NEC and its disciplinary committee to despatch and deliver the complete and full record of the proceedings to the Registrar and to the Applicant's attorneys of and/or in relation to and/or in connection with the decisions to suspend and expel the Applicant as member and/or as the Party President of the BPF within seven days hereof.
Butale’s application defective On the other hand, the respondents through Mokotedi submitted that Butale had failed to plead and disclose the locus standi in judicio of all the parties herein. “Locus standi injudicio is a substantive matter that must be pleaded in the founding papers and failure to do so is fatal to an application and the reliefs sought. Locus standi in judicio must be pleaded in the founding papers, not anywhere else. It cannot be conferred by the Court or consented to by the parties. Absent locus standi in judicio, the proceedings are fatally defective and a nullity. On this point alone, without any further ado, the application must fail, with an order of costs,” Mokotedi submitted.
Mokotedi also submitted that the alleged urgency is self-created. He stated that Butale became aware of the decision to suspend and expel him from the BPF as early as the June 5, 2023 and July 13, 2023 respectively.
“After 43 days from being aware of his suspension from the BPF, the Applicant now approaches Court on a certificate of urgency seeking a stay of the decision to suspend him from the BPF; After 34 days from being aware of his expulsion from the BPF, the Applicant now approaches Court on a certificate of urgency seeking a stay of the decision to expel him from the BPF; The urgency is self-created and the matter must be dismissed on this point, with an order of costs,” he submitted.
Mokotedi also submitted that the Application is an abuse of Court process. He said in the case before Kebonang, Butale had sought “that the purported suspension and subsequent expulsion of the Applicant through correspondence of Barulaganye Letang and Tshekedi Khama as issued on the 4th of July 2023 and the 13th of July 2023 respectively be stayed”.
Mokotedi argued that Butale seeks a stay of execution of the decision of the 04th of July and the 13th of July 2023 despite that his relief was refused and the Applicant has instituted urgent proceedings seeking an identical relief which was refused by Kebonang.