BDP operative, AG in legal tussle
Lebogang Mosikare | Friday November 13, 2020 17:56
The applicant, Peter Williams, who is the father of musician, Odirile Sento, popularly known as Vee in music circles, has issued summons against the AG alleging that his chairmanship of the CDC was unlawfully terminated, hence he was denied payments of emoluments and benefits attached to the office. According to Williams’s cause of action based on an interpretation of section 20 (2) of the LGA of 2012 which is to the effect that his appointment to the chairmanship would “only come to an end when incoming chairperson is elected and takes over”.
In his heads of argument, Williams says that the case before Court is fairly straightforward.
“There is no controversy between the parties on the facts of the matter. The brief background is that in 2014 the plaintiff was elected as a councillor for Semotswane village in the CDC. He was then elected by other councillors to be the Chairperson of the Council under section 20 of the LCA. He completed his term as the chairperson of the Council,” says Williams through his attorney, Tshekiso Tshekiso.
Williams added: “A dispute has arisen as to the point at which the terms of the chairmanship of the Council comes to an end. Is it under section 16 or section 20 (2) of the LCA”.
Section 16 of the Act reads: “Every member of a Council, other than an ex-officio member shall, without prejudice to his or her re-election or re-nomination, cease to be a member of Council on the day appointed for the taking of any poll which may become necessary at any local government election”.
On the other hand, Section 20 (2) of the Act reads as follows:
“The Mayor or Chairperson shall, unless he or she resigns or
ceases to be qualified or becomes disqualified, continue in office until his or her successor is elected and assumes office”.
Therefore, Williams contends that a person elected to be a member of a council ceases to be a member of the council on the day appointed for the taking of any poll at any Local Government election. “This Court would take judicial notice of the fact that in Botswana, the last general elections were held on the 23rd October 2019.
It is on this date that under section 16 of the Local Government Act, persons elected as councillors ceased to be councillors. There is no controversy about the meaning of this section in this regard,” he argues.
“On the other hand, section 20 (2) provides that mayors and chairpersons of councils continue in office until their successors are elected and assume office. It follows therefore that the cessation of office and section 16 and section 20 (2) fall at different times.
The time under section 16 comes earlier (on the date of elections, being 23 October 2019) while the time under section 20 (2) comes much later than the date of the elections.”
He added: “After the general elections, the new councillors have to convene and elect a new Chairperson under section 20 (1) of the act. It is only after the section 20 (1) election that the new chair can take over the chairmanship. The positions of the parties are diverse about when the plaintiff ceased to be the chairman of CDC.
The defendant takes the position that he so ceased on the 23rd October 2019, while the plaintiff takes the view that he ceased on the day of the election of the new chairman, being the 14th January 2020…”
In the same breath, the AG through counsel Ndiye Balule says that the plaintiff’s heads of argument buttress their defence where the Court was urged to “take judicial notice of the fact that in Botswana, the last general elections were held on October 23, 2019. It is on this date that under section 16 that persons elected as councillors ceased to be councillors. There is no controversy about the meaning of this section in this regard” (sic).
“The defendants are in total agreement with the observation (which may be should have been in the agreed facts section of the stated case for adjudication),”Balule submitted.
He went on: “As earlier observed, the purpose of LCA, inter alia, is to promote good governance of the subject corporate bodies.
This is very clear in the language of section 20 (1) 0f the Act, in particular that, the chairperson is intended to “provide strategic leadership” to other members and in so doing, will be working “under the direction of the Council…””
The above language, he posits, directly points to the standards of corporate governance and that the legislature anywhere in the Act that the chairperson could ever serve the corporate body alone, especially when the council has been dissolved under section 16 of the Act.
“Therefore, the ‘mischief’ avoided by such wording of the Act is that no one person may constitute a corporate body and even act and bind the corporate body without involvement of other members. The interpretation given by the plaintiff is clearly against this mischief rule and it must not be accepted.
A close look at paragraph 10 of the plaintiff’s declaration shows that all the claimed expenditure was incurred as a result of one person (Plaintiff) without involvement of the council, which is illegal,” says Balule.
In conclusion, the he adds, the plaintiff is seriously in violation of basic rules of statutory interpretation and in particular, reading section 20 (2) in total isolation of other provisions of this section.
“The theme of section 20 of the Act is the selection and service of chairman of members during their tenure of service, that is before dissolution of the council either under section 16 or 89 of the Act. This is why the responsibilities of such office are only ad hoc over a period of two and half years.
This provision has not insulated the chairperson from loss of membership to the council by sections 16 and 89. In view of the foregoing the plaintiff’s action is compellingly liable to be dismissed with costs,” Balule concluded. Justice Tshegofatso Mogomotsi will deliver judgement on the matter on February 23, 2021.