Kanjabanga fails to bar Ntime

LEKOPANYE MOOKETSI
Correspondent | Friday August 28, 2009 00:00

 

Kanjabanga's application against the BNF and Ntime, was dismissed with costs by the Lobatse High Court yesterday. The lawyer wanted the court to declare the decision of the BNF to allow Ntime to contest the primary elections unlawful. He argued that the decision violates Clause 7 of the BNF's Primary Elections Rules and Regulations.  But Judge Singh Walia ruled that the regulation does not prevent Ntime's nomination. 

The judge rejected Kanjabanga's claim that Ntime failed to submit his application to the constituency elections committee.The court found that there was evidence that Ntime submitted his application to the constituency elections committee but he was snubbed by the officials.

Kanjabanga wanted the court should to declare that Ntime not be a candidate for the primary elections in Gaborone North. In the absence of another candidate, he wanted himself to be declared the sole BNF parliamentary candidate for Gaborone North in the forthcoming general elections. The court ruled that Kanjabanga has not demonstrated any prejudice as a result of Ntime's nomination.

Walia said the courts should be slow to strike down decisions of properly authorised committees of an organisation in the absence of prejudice to a member. He said Kanjabanga has failed to discharge the burden on a balance of probabilities, of showing that the respondents have committed a  reviewable wrong. 

The BNF argued that the application was for the review of the party's decision and that by applying to court, Kanjabanga has chosen the wrong procedural vehicle.  The party said that the application was filed out of time under Order 61 of the rules of the High Court.

However, Walia ruled that each case must depend on its own facts.  The High Court, he said, has an inherent or common right to review the proceedings conducted by statutory bodies and certain procedural machinery such as Order 61 does not curtail this right.

'Indeed this rule is designed to aid the litigant in pursuing his legal remedies in this regard and not to shackle him,' the judge said.

He noted that a litigant acting in sincerity and without prejudice to his opponent, should not be punished for choosing the wrong procedure.  However, he said, the court must take a different view where disingenuity in the choice of proceedings is evident or where the chosen procedure though not of itself wrong or offensive, results in prejudice. 

Walia said Kanjabanga did not follow the procedure provided in Order 61 to bring to court the record of proceedings and decisions sought to be reviewed.  'The end result of this failure is that this court does not have the records of various proceedings that were carried out against the applicant.  And there are disputes among the parties as to what happened at that level; and that the court does not have the official records from which it can make a decision.  Failure to bring such records to the court must be laid at the door of the applicant who was obliged by Order 61 to have requested for such records from the respective structures; and when and if they refused he could have had the support of the courts to obtain the same,' the judge said.

Walia said there were allegations, denials and counter allegations of what transpired at various stages of Ntime's application but no records of any meetings are available.

He said the result is that the court is bereft of any assistance by way of minutes of meetings or other records of the progress of Ntime's application from inception to conclusion. 'I am asked to make a decision purely on the averments of the respective parties.'

However, the judge ruled that Kanjabanga's choice not to proceed under Order 61 was not deliberate and disingenuous. But he said the application stands to be dismissed due to the applicant's failure to proceed under the rules of Order 61. Kanjabanga had said he delayed in filing the application because he was attempting to resolve the matter amicably by negotiation.  He filed his application in March this year, although he had known about the incident he was appealing against early last year. 

Walia said a litigant who goes to sleep on his rights in the hope of amicable resolution of his case does so at his own peril. 'If by not pursuing his remedies he falls foul of any time constraints, he has only himself to blame and he cannot then use negotiations as a reason or excuse for tardy litigation.'

The judge said there is another compelling reason why Kanjabang's excuse of seeking a negotiated solution cannot be accepted.  He said as a legal practitioner of many years' experience, Kanjabanga should have known that the central committee, having made its decision to nominate Ntime was functus officio and cannot be overruled.