Moswaane Loses COVID-19 Urgent Application With Costs
Lebogang Mosikare | Monday August 17, 2020 16:40
The flame burning out of lady liberty’s torch that Moswaane ignited could not light the way to justice for the Greater Gaborone Zonal populace that endured a two-week long lockdown.
Still, Moswaane continued his onslaught against the government barely after losing his wife and defecting from the ruling Botswana Democratic Party (BDP) much to the chagrin of the powers that be.
The maverick legislator had instituted his application against the State on Wednesday without seeking the services of an attorney; some people within and outside the legal profession were of the view that he was biting off more than he could chew.
Moswaane’s sceptics were also of the view that since he decided to be a self-actor with little or no knowledge of the law, which the State was obviously going to marshal its sharpest legal brains from the AG (meritoriously or not), to ensure Moswaane’s application failed even before its merits or lack thereof were heard.
His fall so designed because he stepped on the toes of some unnamed BDP head honchos and their acolytes who are in control of the apparatus of the State after he accused them of being corrupt and rich beyond avarice at various forums.
“It is not surprising that Moswaane’s application is doomed to fail because he has a shallow understanding of the law. Moswaane’s other biggest downfall is that he wants the courts to solve a socio-political problem using a legal channel whilst forgetting that once a matter is brought before court, legal precepts take precedence over any other considerations,” said a lawyer who spoke to The Monitor on condition of anonymity at the High Court last Wednesday.
While the attorney described Moswaane as a hardcore ‘real politic’ legislator famous for relentlessly fighting for the betterment of the lives of the downtrodden against the State, he said it was clear from the start that Moswaane’s application was a monumental legal disaster destined for failure. The attorney added that after he skimmed through the State’s objection on points of law against Moswaane’s application, it was easy to discern that he was fighting a lost battle because the MP’s founding affidavit was a mess.
Other pundits said Moswaane could have enlisted the services of an attorney before he launched his application because his detractors, especially in the BDP, are going to use his loss at the High Court should his application not succeed as political capital in the build up to the 2024 General Election should the MP decide to stand for political office again.
On Wednesday, the AG filed its paper titled, “Objection on points of law,” saying that during the hearing of the application, it would raise objections in abatement of the proceedings based on a number of legal points.
The first legal point that the AG raised stated that the applicant did not comply with Order 13 of the High Court Rules and no cause of action is disclosed.
The applicant’s founding affidavit, the AG states, is fatally defective and it cannot be allowed to sustain the hearing of the application.
Order 13 Rule (1) provides: “Every affidavit shall only contain statements to which the witness deposes, either of his own personal knowledge or from information which he believes to be true stating the sources and grounds thereof.”
The applicant in his affidavit avers that he resides in Francistown and that the facts he is stating are within his personal knowledge (unless otherwise stated), true and correct, the AG says in its papers.
“The applicant in his affidavit further alleges that there are disadvantaged members of the society (who cannot fend for themselves during lockdown) and the government has to provide for them during the COVID-19 lockdown periods.
The affidavit further misleads that the government has failed to provide food for such people and has therefore violated the socio-economic value of such people especially by not allowing them freedom of movement to fend for themselves,” says the AG. In paragraph 12, the applicant simply avers that it is his “desire to defend and provide for the people because I know the pain of hunger,” said attorney Ndiye Balule of the AG chambers.
There is nowhere in the applicant’s affidavit, the AG’s papers continue, where Moswaane swears to the facts that he verified either as his personal knowledge that there are people he met (and state their names and seek confirmatory evidence to that effect) or that they have been so informed and also state the source of his information. The entire affidavit of the applicant is grounded on perceptions, political opinions, guess work and conjecture, which falls foul of Order 13 of the High Court rules, Balule says.
The second ground that the AG raises for Moswaane’s application to be dismissed is that he has failed to establish and prove his locus standi (the right or capacity to bring an action or to appear in a court) to sue for the orders sought.
“The requirement to establish and plead that litigants (both Applicant and Respondents) have locus standi to sue or to be sued, is not a mere formality but an imperative. Failure to plead locus standi renders the court with no powers to adjudicate over the matter… It is abundantly clear that the order sought against the respondent is to compel the government to carry out an act such a remedy against the State is ordinarily incompetent as per provisions of Section (9) of the Public Officers (supra). However, there are exceptions to the general rule. The exception is that a court is competently dressed with powers to order a specific performance interdicts only as an interim measure to protect the prima facie rights and or maintain the status quo pending final adjudication of a dispute,” Balule says.
It is also clear from the Applicant’s motion papers that the form and nature of the specific performances sought is of final character, says Balule.
At the end of the brief hearing, Justice Phuthego made an order for the matter to be heard on Friday.
Phuthego concluded: “The Respondents should file and serve the answering affidavit to the Applicant not later than 2 pm on Wednesday.
The Applicant if so minded is to reply and serve the Respondent his affidavit and Heads of Argument before 11am today (Wednesday).”
However, Moswaane’s matter took a different twist on Friday after he made an application to withdraw it.
Moswaane told the court that he was withdrawing the case because he has discovered that he had little knowledge of the law to pursue his application any further.
“When I instituted this application, I was not aware that it would require that I was highly knowledgeable in many aspects of law. I therefore make an application to withdraw the matter,” Moswaane said briefly.
In response, Balule said while he was not averse to the withdrawal of the matter, Moswaane should pay the costs of the application.
Balule said: “The applicant requested me to waive the legal costs of this application… However, he wanted me to waive the costs of this application because he said that he has discovered that he has little knowledge of the law to pursue the matter further. My response to that is that the applicant is a fairly knowledgeable person. He knew that litigation of this nature comes with costs. It is a trite principle of law that when a matter is brought in court and is withdrawn, therefore, costs should follow.” Balule added that a withdrawal of an application such as the one that Moswaane has made was tantamount to a loss.
“I, therefore, pray that the court should issue an order of costs as agreed to be taxed,” he said.
Asked if he had anything to say in relation to Balule’s application, Moswaane said: “I have heard what the attorney for the Respondents has said but I was suggesting that he should consider that many people in the Greater Gaborone Zone some of whom may be his relatives are suffering. They suffer from different types of diseases like diabetes amongst others.”
At that point, Justice Phuthego asked Moswaane if he had stated that in his papers.
Before Moswaane could answer Phuthego’s question, Balule rose and stopped the MP on his tracks telling the court that he was objecting to what the legislator has just said because Moswaane was now responding to an issue of law.
After Balule’s objection, Moswaane pleaded with the court to have mercy on him.
He said: “I am not aware of court procedures and/or processes. My knowledge of the law is very limited. The attorney for the Respondents wants to score legal points. The government did not use P250 million that is has to buy food for the needy in the Greater Gaborone Zone.”
Justice Phuthego then put Moswaane back on his lane telling him to concentrate on the point of law he raised. Sensing that he was caught between a rock and hard place and that his fate was already sealed, Moswaane pleaded, “I won’t be able to respond to what the Respondent has just said. This honourable court may now decide my fate.”
At the end of the application, Phuthego ordered: “The application for withdrawal of this matter is hereby granted. The Applicant should pay costs of this application.” Crestfallen, Moswaane left the courtroom and gave interviews to some journalists reiterating the usual – why he saw it necessary to launch the urgent court application.