On September 11, the High Court dismissed his application because Khama enjoys absolute immunity from litigation in both his personal and official capacity. At the Court of Appeal Motswaledi prays that the decision of the High Court be set aside. He wants the BDP, Khama and Gaborone Central constituency to be interdicted from taking any steps to give effect to his suspension. He wants the respondents to be stopped from taking any steps to organise and hold a primary election and approve any candidate for the parliamentary candidate in the Gaborone Central constituency.
In the papers filed before the Court of Appeal yesterday, Motswaledi's attorney Ranier Busang of Busang Sebonego Attorneys points out that the High Court erred in finding that Khama enjoys absolute immunity from court proceedings. He says the method used to argue and arrive at the finding was inappropriate. Motswaledi casts the interpretation as both narrow and counter to the general thrust of the constitution which seeks to establish a democratic state. "The court failed to apply a purposive approach, which in respect of a constitution, is inappropriate. The court considered the section textually and, having concluded that the words used could mean an absolute immunity, erroneously examined the matter no further," the appeal says.
