Double membership costs BPF presidential aspirant
Mompati Tlhankane | Friday December 1, 2023 06:00
Delivering her verdict in the case this week, Justice Boipuso Makhwe of the Lobatse High Court said she finds that Bosilong is indeed a member of the SDP and his expulsion is consistent with the constitution of the BPF. In a letter dated November 7, 2023, BPF secretary-general (SG), Lawrence Ookeditse, who is a respondent in the matter, informed Bosilong that the party has decided to terminate his membership “with immediate effect”. Bosilong then approached the court indicating that his expulsion from the BPF is an attempt to frustrate the proceedings before court in another case in which he was challenging for the presidency of the BPF.
In the case before Justice Itumeleng Segopolo, Bosilong wanted a declaration that the elections for presidency of the BPF held at the congress of September 16-17, 2023 are unlawful and thereby set-aside. In her judgement, Justice Makhwe pointed out that Bosilong argues that the decision to expel him on November 8, 2023 was made while there were pending proceedings before court. In his heads of argument, Bosilong stated that a scanned copy of the writ of summons had been circulating in social media at the time when the purported decision was made. “Besides the above statement by the applicant in his heads of argument, nowhere does the applicant make the above point in his founding affidavit. Even if it were true, there is no evidence that the respondents became aware of the circulating summons. Even if they were aware, until served with such process, the respondents are legally entitled to ignore such until formerly and properly served in accordance with our rules of court,” Justice Makhwe further stated. The judge added that Bosilong has generally sought to make a case in his heads of argument that is not in his founding papers.
Makhwe indicated that it would be a totally new procedure for the court to take social media platforms as proper service outlets. She said this kind of service is not recognised by the rules of court. “I find no substance in the allegations that the respondents sought to undermine any court proceedings by terminating the applicant’s membership. This allegation is not supported by evidence. By failing to serve his papers on the Respondents, the Applicant has only himself to blame and cannot seek the court’s protection. A court process is complete when it has been served on the other party,” Justice Makhwe emphasised.
Since the BPF expelled Bosilong before the proceedings before Segopolo were not complete, Justice Makhwe had to decide whether the decision to terminate the Applicant’s membership should be stayed as prayed given his alleged membership of another party. In her order, Justice Makhwe indicated that a finding that the applicant is a member of the SDP would put an end to Bosilong’s membership to the BPF. The judge also said the respondents contend that Bosilong is a member of the SDP therefore, being a member of another party the applicant cannot be its member. “For this proposition, the Respondent referred the Court to Article 7.1 of the BPF Constitution, which says individual membership of the BPF shall automatically terminate if a member resigns, or is expelled, or dies, or joins another political organisation in Botswana, or stands for parliamentary or local government elections, in opposition to a duly endorsed candidate of the BPF,” Justice Makhwe added.
Justice Makhwe said Bosilong’s answer to his membership of the SDP is not foreshadowed anywhere in his founding papers. “There is no dispute as to the existence of an intention to resurrect an association called SDP. However, there seems to be confusion on the part of the Respondents as to whether the association has actually been resurrected,” Bosilong stated in his heads of argument. Justice Makhwe further said Bosilong has sought to underplay his membership of the SDP. She revealed that Bosilong does not address it in his papers other than to acknowledge his membership to a limited extent through his heads of argument. “Heads of arguments are not pleadings and without the applicant’s arguments not in his pleadings, his heads are of very little assistance to him. The applicant did not disclose his membership to the SDP, and when he had to explain it, sought to minimise his membership,” the judge emphasized.
Justice Makhwe said she finds that the applicant is indeed a member of the SDP and his expulsion is consistent with the constitution of the BPF. “By virtue of this membership there is no right that accrues to him, which though open to doubt, is worthy of protection. His dual membership of two political parties clearly ultra vires the Constitution of the BPF, in particular Article 7.1,” the judge said when dismissing the application for stay with costs.