EVM case: BCP trounces government again

Lebogang Mosikare | Thursday November 30, 2017 18:32

 

The state’s failed bid was the second in the hotly contested case that the AG has tried to scupper the opposition party’s challenge. Previously, the BCP prevailed when the AG argued that the BCP had filed its declaration nine days out of time.

In that instance, Moroka said the delay was slight, adding that taking the drastic action of dismissing the case as the AG wanted, would not be in the good interests of justice and the society at large.

This time around, the AG made an application arguing that the BCP – which is cited as the first respondent in the application – erred in not having filed an accompanying affidavit.

“The rules require that affidavit or affidavits must be accompanied by copies of the documentary exhibits to be relied upon.

It is appropriate to mention that Kentse Rammidi’s (BCP secretary general) affidavit is not accompanied by any expert documents that the BCP will be relying upon,” the AG’s attorney Matlhogonolo Phuthego said.

Opposing the State’s application, senior counsel, Gabriel Komboni for the BCP said the affidavit in question was not an affidavit of evidence, which is required in an application proceeding.

During trial, he said, evidence would be led and tested through cross-examination of witnesses who will give evidence.

“We will call witnesses to testify that EVMs are susceptible to hacking. We submit that the matter should be heard on the basis of the irregular proceedings that were filed. The action by the AG is unlawful and should be dismissed with costs,” he said.

Dismissing the State’s application yesterday, Moroka agreed with Komboni. “Rammidi said he will call an EVM expert to testify that EVMs are susceptible to hacking,”  Moroka said.

“The affidavit filed by the BCP is not an evidential affidavit and the AG is mistaken to argue that when an expert is called to testify during trial, what the expert will say could dislodge what Rammidi had said.

“I don’t agree with averment of the AG that Rammidi should not say that EVMs can be hacked because he is not an EVM expert.

Whether or not EVMs can be hacked will be proved during trial. In the final analysis, the court will also look at the prejudice that will be suffered by either party in the matter,” Moroka said.

The matter will go for initial case management conference next year in March.