The three members of the embattled party, Mmapula Amos, Boatametse Nthobogang, and Rajaba Lekgaba are challenging the decision of their president, Mephato Reatile, to withdraw it from the Umbrella for Democratic Change (UDC) instead of forming a pact with the coalition. The applicants aver that Reatile’s decision to withdraw the BPF from the UDC was unconstitutional because it contradicted a resolution to join the coalition that was taken at the party’s National Conference and Extraordinary Congress held on April 29 to 30, 2023. The respondents in the matter are the BPF’s secretary-general (SG), Lawrence Ookeditse, Reatile and the party respectively. When the matter commenced, the attorney for the applicants, Kevin Segadimo, said that he would rely on papers filed of record in court. When making his submissions, the attorney for the BPF, Kago Mokotedi, said the affidavit filed by the applicants was fatally defective and thus the matter ought to be struck out without any further consideration.
The affidavit, Mokotedi contended, was defective because it was signed at the same time, same place, by the same commissioner of oaths, and as such it lacked solemnity. The defective affidavit, the attorney argued, was tantamount to no evidence placed before the court for argument. “The papers filed by the applicants are not an affidavit for purposes of legal proceedings and they must therefore be struck out,” said Mokotedi, adding that the respondents’ answering affidavit remains uncontroverted. Mokotedi also argued that it cannot be said that the principle of actio popularis (right resident in any member of a community to take legal action in vindication of a public interest) applies because all of the applicants are not prospective council or parliamentary candidates. “Why are the applicants crying more than the bereaved if the UDC wants the names of prospective council or parliamentary candidates?” Mokotedi posited.
Dealing with the issue of urgency, Mokotedi said the matter was not urgent because the applicants were aware of the decision taken by Reatile on April 6, 2024, but did nothing only to wait until July 31, 2024, to seek clarity. “The court is confronted with urgency based on subjective facts. It is clear from the founding affidavit of the applicants that they knew about the Serowe meeting where the leadership of the BPF decided to withdraw it from the UDC but they folded their arms and did nothing. The applicants are litigating for the interests of third parties because they are asking the court to compel the BPF to join the UDC," he said. "None of the parties is a prospective council or parliamentary candidate. If any prospective council or parliamentary candidate is concerned about the decision taken by the party president and if their rights are infringed, they could have appeared in this court in person." "The applicants do not have the locus standi (the right of a party to appear and be heard before a court). The applicants are pleading with this court to compel the BPF to hand over the names of prospective council and parliamentary candidates to the UDC which is also not before this court,” said Mokotedi.
He added: “The non-jonder of the UDC in these proceedings is fatally defective. How does the BPF send the list of its council and parliamentary candidates to the UDC when the UDC is not a party to these proceedings? This defies logic... We pray that this application be dismissed with costs.” In response to Mokotedi’s submissions, Segadimo said that the court was within its rights to accept the affidavit however defective it was. “We submit that this court should accept the applicants’ affidavit because the respondents will not suffer any prejudice. In relation to the joinder of the UDC in this proceedings, we submit that there is nothing that we want from the UDC. The reliefs sought by the applicants are directed to the Secretary General of the BPF and the BPF. It cannot be fatal that the UDC is not before this court. The third respondent, BPF, is a contracting party of the UDC and it is going to contest the elections under the banner of the UDC.
The expectation therefore is that all UDC contracting parties should hand the list of their council and parliamentary candidates to the UDC," he said. "All the parties under the UDC coalition have submitted the names of their council and parliamentary candidates to the UDC save for the BPF while the elections are fast approaching. The decision taken by the president of the BPF to withdraw the BPF from the UDC is unlawful because it was taken outside the structures of the BPF. The question is: can the president of the BPF override the resolution of the BPF congress? That cannot be the case. The president’s decision is invalid even if it was taken on April 6, 2024,” said Segadimo.
Segadimo also submitted that Reatile relayed his message to withdraw the BPF from the UDC through newspapers. “There are proper and official channels of communication that should be used if the BPF wants to communicate with its members. It cannot be expected of members of the BPF to know the existence of Reatile’s communication through newspaper articles. The people who brought this application are members of the structures of the BPF. One of them is a member of the electoral board while another is a regional secretary," he said. "They have a right to approach this court when they see that an illegality has been occasioned. Whether or not they are prospective council or parliamentary candidates does not arise. What is important is that they have a right to approach court when an illegality has been occasioned. The applicants have locus standi to bring this application.
On the issue of urgency, the second respondent, Ookeditse, doesn't have a right to override the decision of the BPF congress until such a time that congress alters such a decision. The urgency on this matter arose on August 31, 2024, and not on April 6, 2024,” said Segadimo who pleaded with the court to dismiss the submissions of the respondents with costs.
