Butale’s losses pile up
Innocent Selatlhwa | Monday September 4, 2023 09:46
Bring back my presidency!
Through his notice of motion, Butale who is represented by attorney Kole Kole 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. “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,” Butale wants the order to state. Additionally, he sought a preliminary court order (rule nisi), which would require the respondents to present themselves and explain why an official directive shouldn't be issued. This directive would compel the BPF, along with its NEC and disciplinary committee, to promptly furnish the Registrar and the legal representatives of the applicant with an exhaustive and unaltered record of all proceedings of the decisions surrounding the suspension and removal of the Applicant from his positions as a member and the BPF president.
You are too late - BPF
The respondents, represented by Mokotedi, contended that the claimed urgency is a result of Butale's own undoing. Their stance is that Butale failed to act promptly on his rights. “After 50 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 41 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,” Mokotedi said.
The respondents also contended that the applicant has significantly fallen short of meeting the prerequisites for urgency, as stipulated by the High Court rules. “No justification is made in the founding papers for the delay to institute the urgent application after 50 days of being aware of the decision to suspend him from the BPF. The court is left to speculate as to why the applicant delayed to institute these proceedings. The applicant slept on his rights and lied supine despite knowledge of the decisions he complains of,” they stated.
The claimants further assert that Butale failed to inform the court that he had initiated urgent proceedings on August 15 before Justice Itumeleng Segopolo. In those proceedings, he sought the same reliefs as those being pursued in this case. However, Segopolo dismissed the case on August 22 with costs. “On August 15, 2023, the applicant approached Motlhabi. He did this through the normal cause. He seeks to review and set aside the decision to suspend and expel him from BPF.
Eight days later, he now seeks an interlocutory urgent stay of the decisions he has taken on review. Between August 15 and 23, 2023, the Applicant did not disclose to the court what had changed that triggered urgency in this matter.
The basis of urgency is vague and bald," he stated. The respondents also asserted that the application is in abuse of the court process. In the previous case involving Justice Zein Kebonang, Butale had initially requested that the alleged suspension and consequent expulsion of the applicant be terminated. These actions were carried out through correspondence from Barulaganye Letang on July 4 and Tshekedi Khama on July 13. However, Justice Kebonang rejected the plea for suspension, and the rationale for this was as follows: “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.” Furthermore, the respondents argued that Butale is now pursuing another suspension of the execution of decisions that have already been legally determined by a court of equal jurisdiction.
“The applicants had initially appealed Kebonang’s decision in refusing with stay of execution. He noted an appeal with the Court of Appeal seeking a stay of execution of these decisions. While the matter was pending at appeal, he has filed a notice of abandonment of appeal of Kebonang and he is effectively taking no issue with the finding and judgment of Kebonang. Why is he now seeking a stay of execution of decisions which the High Court has pronounced itself on,” Mokotedi said.. Mokotedi additionally argued that Butale has yet to fully utilise the available avenues within the BPF constitution. They urged the court to exercise prudence and restraint, refraining from involvement in the internal political affairs of the party without first exhausting domestic remedies.
You slept on your rights- Court
Delivering judgment, Justice Makhwe said in an urgent application, before considering any other issue before it, the court must be satisfied that the requirements of the rules of the High Court have been satisfied. “Not only must the applicant provide grounds indicating urgency but must also state why he did not approach court as soon as he became aware of the decisions of the respondents. In his accompanying founding affidavit, the applicant acknowledges that the decision which he wishes to have stayed was made through the successive suspensions of the 5th June 2023 and 4th July 2023 and ultimately by means of an expulsion letter dated the 13th July 2023'', said the judge.
Save to state that the decisions to suspend and/or expel him were tainted by irregularity and illegality, Justice Makhwe said Butale does not set forth explicitly in his founding affidavit the circumstances which he avers render the matter urgent and the reasons he cannot be afforded substantial redress at a hearing in due course. Makhwe also stated that Butale knew of the decisions that affected him from as far as June 5, July 4, 2023 respectively.
“Given that the applicant was aware of the decision he wants stayed as way back as the above-mentioned dates, albeit failed to approach court at the earliest opportunity, in my view, the issue of urgency is self created. Where urgency is self-created, it is a trite principle of our law that the application must fail,” Makhwe said as she dismissed the matter with costs.