The four applicants are Botho Ntirang, Gaobewe Kasale, Moagi Modipane and Jacob Oduetse. The quartet cited the BDP, Peter Gaonabeng, Moses Mochabo, Tebogo Donovan, Moagi Khumo, and the Independent Electoral Commission (IEC) as respondents in the application. Gaonabeng, Mochabo, Donovan and Khumo had defeated the applicants in various wards in the recent BDP primary elections. The gripe of the quartet was that the ruling party didn't address their queries after they lost in the primaries despite numerous written communications to the BDP to address them. When the matter was supposed to be argued on Friday, the quartet, through their attorney Gontse Simon, said they confirmed that they had been served with papers opposing their application by the respondents’ attorneys.
“After going through the papers and content therein, we found that it is proper to withdraw this application mostly on account that the applicants no longer enjoy the membership of the BDP. “However, we communicated with the respondents’ attorneys that we won't pay costs as a general rule, but the respondents’ attorneys don't agree with that. We came to the conclusion that a date should be set to argue the issue of costs,” said Simon. Drama ensued before the case started when the respondents’ attorneys, Bogopa, Manewe, Tobedza and Company Attorneys, served the applicants with letters of suspension from the BDP signed by President Mokgweetsi Masisi. The quartet sensed that they had no prospects of success against Masisi because of the provisions of Section 41 (1) of the Constitution of Botswana (Protection of President in respect of legal proceedings). It reads: (1) Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her either in his or her official capacity or in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her in respect of anything done or omitted to be done in his or her private capacity.
In 2009, a panel of Court of Appeal judges made up of Nicholas McNally, Craig Howie, Seth Twun, Michael Ramodibedi, and John Foxcroft, brought the legal tussle between President Ian Khama and Gomolemo Motswaledi to an end by unanimously agreeing that Khama can't be sued because he enjoys total immunity from criminal and civil suits. Motswaledi, who was suspended from the party, was seeking reinstatement as secretary-general (SG) and to be declared as the BDP’s parliamentary candidate for Gaborone Central. One of the attorneys for the respondents, Busang Manewe, told Justice Bengbame Sechele that he confirmed what Simon had said. However, Manewe said: “I also confirm that we resolved to approach his lordship with a request that he addresses the issue of costs and that a date for the argument of costs be set on another date. This is because of a rule that says that a party that withdraws an application should tender costs but the applicants are saying that because this is an exceptional case, they shouldn't pay the costs of the suit. We want to have a structured argument about the paying of costs hence we seek a date to argue about the payment of costs.”
Thereafter, Justice Sechele said: “I want to impress upon all parties that the more you appear before me, the more you incur costs. I suggest that you proceed by way of filing head of arguments about costs without having the need for oral arguments.” The parties then agreed with the proposal of Justice Sechele. The ruling, with respect to costs, will be delivered on November 28.
