No end in sight for BNF symbol saga
Isaiah Morewagae | Friday May 16, 2014 17:47
Disgruntled members of BNF had earlier won a default order to stop Boko and the party central committee from incorporating the party symbol into the Umbrella for Democratic Change (UDC) election material.
On Wednesday night at the Lobatse High Court, the opposing attorneys made oral arguments for or against rescinding of the order.
Attorney Mboki Chilisa representing the BNF accused his opponent Gabriel Kanjabanga of using the respondents as a pawn in his political battle with the BNF and Boko.
Kanjabanga who has since been expelled from the BNF lost the presidential contest against Boko in 2010. After that he has brought cases on behalf of disgruntled members of the party.
Chilisa contended that the court erred in granting a default judgment against his clients.
He submitted that as per the order, it is clear that the judge did not consider the points of law that they raised in papers before court.
He said if the court was minded to grant an order, it should have been a cost order against those who have not attended the court and postponed the matter to another date.
“Had the judge considered the points in limine, it could have arrived at a different conclusion,” Chilisa said.
He argued that the applicants did not have locu standi. Chilisa stressed that according to the law, for an individual who is not in a position of power to vindicate the rights of a voluntary movement should seek leave of court to do so. “They should demonstrate to the court that they have a peculiar interest that sets them apart from any other member of such organisation,” Chilisa argued.
He stated that no cause of action was disclosed in the founding papers of the applicants.
He added that the applicants did not even exhaust the local remedy available to them as per the BNF Constitution.
At the end Chilisa called on Nthomiwa to rescind his earlier order barring the BNF from incorporating its symbol into the UDC. Chilisa stressed that the order was sort and granted erroneously.
Attorney Kanjabanga opposed the application saying that the order was competently granted.
Kanjabanga called on Nthomiwa to dismiss the application arguing that BNF and its legal representatives have never shown seriousness in the matter. He argued that at the time the order was made, none of the BNF attorneys showed up in court something which made him apply for default judgment.
Kanjabanga argued that his papers were properly filed. He dismissed as meritorious arguments advanced by the other party, stating that the BNF constitution gives its members power to protect the party. Under the current state of the BNF, Kanjabanga argued that the leadership wants to destroy the party that members fought for, hence his clients came to court. In their application for rescission, Chilisa argued that the matter was not set down for arguments on September 6, 2013. This is the day in which the BNF attorneys failed to appear in court and Kanjabanga for the Moses Kajane and Kitso Koister applied to have a default judgment.