Legal technicalities at play in EVM case
Lebogang Mosikare | Tuesday November 7, 2017 16:25
The Attorney General (AG) made an application before Justice Lot Moroka whether or not the Botswana Congress Party (BCP), which is cited as the first respondent in the application, erred in not having filed an accompanying affidavit as per the rules of the High Court. The AG also wants the court to determine whether the applicant has made out a case for the dismissal of the action, or setting aside the amended declaration, and or striking out of the offending paragraphs of the amended declaration on the basis that it is not supported by a relevant affidavit or affidavits.
The AG attorney, Mathogonolo Phuthego said that with regard to Order 24 sub rule 2 (b) (i) of the High Court rules, which states that every declaration should be accompanied by an affidavit or affidavits, this means that the BCP erred in failing to provide an accompanying affidavit to the amended declaration as required by the rules.
“Order 24 rule 2 (c) (ii) requires that the affidavit or affidavits must be accompanied by copies of the documentary exhibits to be relied upon. It is apposite to mention that Kentse Rammidi’s affidavit is not accompanied by any expert documents that the BCP will be relying upon… The purpose of the accompanying affidavit is to verify the allegations in the declaration,” Phuthego said.
“This is because affidavits are written documents attached to an oath or some affirmation before a Commissioner of Oaths that the statements in the affidavit are true and hence carry more weight whilst the declaration are merely written documents that the author believes to be true but the statements are given without the author making an oath or some affirmation before a Commissioner of Oaths..”
The BCP, Phuthego said, cannot aver that the AG’s affidavit of facts filed on August 31 is sufficient to cover all the allegations stated in the amended declaration because it has been superseded by the filing of an amended or new declaration, which must be supported by its own affidavit to support the new evidence in the amended declaration.
“It is submitted that even if the said affidavit is found to be applicable to the amended declaration then the BCP must have filed a supplementary affidavit supporting the new averments,” Phuthego said.
BCP attorney Gabriel Komboni dismissed the AG’s application as nothing but a ploy to delay the case to be determined on its merits during trial.
Komboni said that the AG has in the past complained about how the matter was progressing but is now delaying the case further by making unnecessary applications.
“The affidavit is not an affidavit of evidence which are required in an application proceeding. During trial evidence will be led and tested through cross-examination of witnesses who will give evidence. Rammidi said he will call witnesses to testify that EVMs are susceptible to hacking. We submit that the matter should be heard on the basis of irregular proceedings that were filed. The action by the AG is unlawful and should be dismissed with costs,” Komboni said.
Ruling on the matter will be delivered on November 21.