CJ dragged into UDC, BMD conflict
Lebogang Mosikare | Friday March 8, 2019 13:42
The BMD is challenging its expulsion from the tri-party UDC coalition.
On Wednesday this week, the Umbrella filed its papers at the High Court in Gaborone through their attorneys, Bayford & Associates. The president of the UDC, Duma Boko and the UDC are cited as the first and second applicants in the matter while the Attorney General (AG), CJ, Registrar of the High Court of Botswana and the BMD are cited as first, second, third and fourth respondents in that order.
The applicants’ attorneys are challenging CJ’s decision to allegedly handpick two additional judges to hear the case between the two parties.
The UDC attorneys said on December 7, 2018, the BMD launched a review application against Boko and the UDC in which it sought to review, correct and/or set aside a decision of the UDC to suspend and expel it from its membership.
“Upon registration of the said review application, the High Court computerised case management system allocated the matter to Honourable Tshepo Motswagole as the presiding judge and the name of the judge was accordingly endorsed on the originating court process as customary,” the attorneys said.
The UDC alleges that following the registration of the application, attorneys acting on behalf of BMD addressed a letter to the CJ in which they requested that he increase the number of judges to preside over the matter. Certain reasons for the request were advanced in the said letter, said the applicants’ attorneys.
“The said correspondence was neither copied to the applicants by the said attorneys nor did the CJ and Registrar relay the contents thereof to the applicants. Consequently, the latter were not afforded an opportunity to be heard on BMD’s request. On December 13, 2018 the CJ, acting in his administrative capacity invoked the provisions of Section 6 of the High Court Act and increased the number of judges hearing the review application from one to three,” the applicants said.
The CJ is alleged to have personally appointed Justices Tau and Moesi to preside over the said matter together with the substantive judge.
In their grounds of review, the applicants say that in appointing the other two judges over the substantive cause, the CJ acted beyond his powers.
Furthermore, the applicants say that Section 6 of the High Court Act does not empower the CJ to select and appoint specific justices to preside over a cause and accordingly; the decision to empanel the bench of three judges violates their right to equal protection of the law and is therefore unconstitutional.
“The process by which the decision was reached to empanel the bench with three Judges contravened the provisions of Sections 10 (9) and 10 (10) of the Constitution of Botswana as it denied the applicants a fair and impartial proceedings in an open and transparent public hearing.
“In personally appointing Justices Tau and Moesi and disregarding the established practice of causes being allocated by the computerised case management system, the CJ acted beyond his power as contemplated by the High Court Act and Rules, alternatively, practice of the High Court,” said the attorneys.
The case continues.