Ketlogetswe’s judgment is confusing – Tau
Mompati Tlhankane | Monday December 11, 2023 06:00
Ketlogetswe’s November 10 ruling confirmed an October 31 rule nisi ordering the IEC to allow the UDC to observe and monitor the General Election voters’ registration exercise which has since been suspended indefinitely
. In her ruling, which determined whether IEC’s case is appeallable, Justice Tau said Justice Ketlogetswe’s order is confusing because one of the paragraphs is interim in nature while the other has some effect of finality.
“Pending the final determination of an application determining the extent of the applicant’s constitutional right to observe and monitor national election registration, which application was filed on November 3, 2023, the respondent or anyone acting through the respondent or any other party at, is interdicted and restrained from preventing the applicant’s agents, whose full particulars the applicant shall provide to the respondent, from observing and monitoring the national elections registration process scheduled to start on November 13, 2023,” read paragraph four of Justice Ketlogetswe’s judgement, which Justice Tau says is interim in nature. Justice Tau also said the interim part is that way because it stands pending the determination of the rights of the UDC to observe and monitor the registration of voters. She said the other part is made up of orders permitting the UDC agents to observe and monitor registration of voters as well as record the names and national identity card numbers of voters.
“The respondent is directed and ordered to allow the applicant to observe and monitor the national elections registration exercise, including having applicant’s agents to record the names and national identity card numbers of the people registering to vote and to record the serial numbers of the registration booklets for each and every registration day at the opening and closing thereof.
The applicant shall deploy no more than two of such agents per polling station,” read paragraph three of Justice Ketloegetswe’s judgement, which Tau says presents ambiguity. In paragraph four of Justice Ketlogetswe's judgement, it says that the orders mentioned in paragraph three and four shall operate forthwith as final orders with immediate effect. In her ruling this week, Justice Tau further pointed out that Justice Ketlogetswe’s orders impose obligations on the IEC pending determination of the rights of the UDC in the main application.
She emphasised that paragraph four of the order is explicit that the orders are final in effect and should be implemented immediately. “Also the orders are distinct and independent of paragraph 2. I find that these orders are final in effect. There was therefore, no need to apply for leave to appeal,” she said. Justice Tau added that permitting agents to record names and national identity card numbers of voters appears to be intrusive and it would therefore, be in the interest of justice to have the orders considered on appeal. Before Justice Tau issued her ruling, the IEC in their argument earlier this week submitted that the effect of the orders is final in respect of rights and obligations of interested parties. The IEC argued that paragraph three of Justice Ketlogetswe’s order is final in form.
“That not only does paragraph four explicitly state that they are final in effect but they are independent of paragraph two which appears to have the effect pending the determination of the application for declaratory orders in that they impose obligations on the IEC which must be carried into effect before the final determination of the rights in the main application,” IEC further argued.
The UDC’s contention on the other side was that the order of the court a quo was interlocutory in nature and therefore, not appealable. They argued that the IEC wanted to litigate the matter in a piecemeal manner and this had caused the UDC considerable expense and strain in fighting legal battles in both Francistown and the CoA. They further argued that Justice Ketlogetswe’s order is not final and is susceptable to alteration.
“Should it be declared that the UDC does not have the rights it seeks to be declared, the interdict will be set aside. Again, the orders the applicant seek to appeal against are in relation to an interim interdict pending the determination of the rights of the UDC. There has been no determination into the extent of the of the parties’ rights in the main proceedings,” the UDC stated.