However, its name somewhat loomed large over the urgent application that was launched by Mmapula Amos, Boatametse Nthobogang and Rajaba Lekgaba respectively. The respondents in the matter were: the secretary-general (SG) of the BPF, Lawrence Ookeditse, the president of the BPF, Mephato Reatile, and the BPF in that order. The applicants brought the urgent application before Justice Bengbame Sechele seeking reliefs in the following terms: declaring the application to be urgent and setting aside all rules of this court relating to form; service of process and other related matter; declaring the first respondent (Ookeditse)’s unlawful decision to remove the third respondent (BPF) from the membership of the UDC to constitute an unlawful violation of the BPF’s constitution and consequently null and void; directing Ookeditse to submit or cause to be submitted names of all the candidates for local government and parliamentary elections that will represent the BPF in the UDC in the 2024 General Election forthwith and directing the respondents to pay the costs of the application. When delivering ruling in the matter, Justice Sechele said: “The application is opposed on points of limine and on the merits. In limine, the Respondents argued that the applicants have failed to satisfy the requirements of Order 12 (12) of the High Court and consequently sought an order striking out the application with costs.
In further amplification of this point, the respondents highlighted the fact that the applicants became aware of the Reatile’s decision as far back as April 7, 2024 but lay supine until August 8, 2024 when they launched these proceedings on an urgent basis.” The respondents, Sechele noted, took further points in limine against the applicants’ replying affidavit and its accompaniments on the grounds that the Commissioner of Oaths who administered failed to observe the solemnity of the task she was being called upon to perform. “In this regard, the Respondents highlighted the commissioner’s bizarre act of commissioning a set of affidavits, including confirmatory affidavits, at the same time and at different places located hundreds of kilometres apart. The other point relates to a failure to satisfy the requirements of a final interdict, the non-joiner of the UDC, applicants’ reliance on actio popularis (right resident in any member of a community to take legal action in vindication of a public interest) and the requirements of Order 13 (16) of the Rules of the High Court concerning annexures. Counsel for the respondents (Kago Mokotedi) submitted that urgency ought to be borne of facts which from an objective assessment of facts, render a matter urgent.
Self created urgency, Mokotedi further submitted, is no urgency at all.” Justice Sechele added: “The crux of Mokotedi’s submissions is that the applicants, by their own admission, became aware of the decision that they seek to impugn as far back as April 7, 2024 but decided to lie supine until July 30, 2024 when the UDC published its list of candidates and which list did not include members of the BPF. The paragraphs below in the applicants’ affidavit make for interesting reading and I quote them in extensor below: (16) On or about April 7, 2024, Reatile apparently held a media briefing where he is alleged to have had terminated the membership of the BPF in the UDC and wanted the BPF to instead have a pact with the UDC; (17) According the media report, Reatile alleged that the decision to terminate the BPF membership in the UDC was taken at a meeting attended by the National Executive Committee (NEC), Constituency Chairpersons and Constituency Secretaries. Interestingly, the same media report stated that Reatile purportedly indicated that he made the decision to terminate the BPF’s membership in the UDC in the exercise of his power outlined in Clause 20.6.4 of the Constitution of the BPF...” “(18) Some of the members of the NEC, constituency chairpersons and constituency secretaries have consistently maintained that they knew nothing about and/or did not participate in the meeting mentioned in the media reports alluded to above (19) Some of members of the NEC who deny that the decision (sic) to terminate the BPF’s membership in the UDC included Shadreck Baaitse, who is the BPF’ Secretary for International Relations, and Catherine Sepora, who is the BPF’ Women’s League President. (20) For the period between April 2024 and July 2024, the said media reports remained nothing but a rumour within the BPF to the extent that Reatile never issued any memorandum confirming the said purported decision of the NEC during that period.
The reason why I consider the so-called decision to have been a rumour until now is because the practice within the BPF is to communicate resolutions of the NEC and other organs of the BPF to its structures and members as soon as possible after the resolutions are made... (38) In view of the applicants, there was no decision of the BPF made on April 6, 2024 as alleged. The only purported decision that the applicants learnt of from the media was that of Reatile and as already stated above, the said purported decision was void ab initio (an action that never had legal effect) for want of authority and therefore never existed in fact (39) There was, therefore, nothing to challenge until July 30, 2024 when the consequences of the said purported unlawful decision appeared to be taking effect through the omission of the BPF’s parliamentary candidate from the UDC list of parliamentary candidates,” said Justice Sechele. The applicants’ attorney Kevin Segadimo, Justice Sechele noted, adopted a two-pronged approach to the Respondents’ points in limine. “Firstly, he submitted that the points in limine are procedural matters which ought to have been dealt with in terms of Order 33 of the Rules of the Court. Secondly, he submitted that the decision taken by Reatile was, in fact, no decision at all as the same was taken without the authority and in contravention of the BPF’s constitution. Such decision, Segadimo further submitted was null and void and void ab initio. Segadimo’s contention, in a nutshell, is that the applicants had no duty to react to an otherwise arbitrary decision taken by Reatile save only when the consequences of such a decision take effect. This court has consistently and persistently refused to accommodate litigants whose inaction precipitates urgency... A party whose inaction has precipitated a state of affairs on the basis of which the court’s indulgence is being sought is disqualified from relying on the provisions of Order 12 (12) of the Rules. Whilst access to the courts is guaranteed by the Constitution of this republic, it is also duty bound to regulate such access. The rules of the court are the regulatory framework to which all litigants must pay homage. Queue jumping occasioned by self-created urgency, therefore, must be discouraged,” said Sechele.
The court, Justice Sechele explained, has no slightest doubt that the applicants herein were from as far back as April 7, 2024 not only alive to Reatile’ s decision but also the far reaching consequences that such decision will have on the BPF’s coalition agreement with the UDC. “The applicants’ claim that the said decision was no more than a rumour is outright disingenuous. The positions that they hold in the BPF put them on a high pedestal such that they must in fact be deemed not only to have been aware of Reatile’s decision when it as soon as it was made but were also fully cognizant of the impact such decision will have on the BPF’ relationship with the UDC. The UDC’s publication of its parliamentary and local government candidates came as no surprise to the applicants as this was the logical outcome of Reatile’s decision. It has been submitted that the applicants were at liberty to ignore Reatile’s decision as the same was in contravention of the BPF’s constitution and therefore unlawful... To the extent that the applicants chose to ignore Reatile’s decision merely because they considered the same to be unlawful, they acted to their own detriment. Secondly, Reatile’s decision had been placed in the public domain such that the applicants had all that is required for them to approach court but opted to lie supine until the end of July, 2024 when they purported to put the respondents on notice of these proceedings,” said Sechele.
He concluded: “Justice Sechele said: “The Applicants have failed dismally to satisfy the requirements of Order 12 (12) of the Rules of the Court on urgency. The Respondents’ point in limine on urgency is consequently upheld and the application is struck out with costs. In view of the decision I have arrived at on urgency, I do not find it necessary to deal with the rest of the points in limine raised.” After the ruling, the chairperson of the BPF, Carter Morupisi, briefly said: “We are satisfied with the decision of the court.”
