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Kamal vs BDP comical court exchanges

Publishing Date : 07 January, 2019

Author : TEBOGO KGALEMANG

Kagisano Tamaocha, a lawyer representing Kamal Jacobs of Lobatse constituency in a case which he is challenging legitimacy of President Mokweetsi Masisi as the Botswana Democratic Party (BDP), turned the court into a circus during festive season, earning the wrath of Judge Michael Mothobi in the process. 


The matter came before Justice Mothobi during the festive season as an urgent application and was heard on the 27th and 28th of December 2018. The matter was supposed to be argued on four points: admission of Attorney General as a friend of the court; urgency; legal immunity and misjoinder.  The court started with arguments on admission of AG of which AG was granted application to be cited as a friend of the court.  After that, it was the urgency argument, of which the ruling will be delivered next week Monday.


Should the court rule that the matter is urgent, the parties will then proceed to argue on the immunity leg followed by misjoinder, and if not, the case will have to follow the normal route and wait for the date in which the court will decide to allocate a date. Below is the interchange between lawyers of the three parties and the judge as they had heated arguments.


Kagisano Tamocha: This matter is urgent my Lord. The degree of urgency varies from case to case. By virtue of Masisi not being president of the BDP, he had no powers to appoint Appeals Board Committee which later on dismissed my client’s application to have a re-run in Lobatse. The board which dismissed my client was unconstitutional because Masisi is not the legitimate President of the BDP.


We are saying this because even before my client consulted me, there was an article in Mmegi newspaper where the former President Ian Khama claimed he is still the president of the BDP Judge: How do you want me to treat that information when it was written by a third party? Did you even have Khama endorsing an affidavit confirming the said article?

Tamocha: No, we did not serve him.
Judge: So what do you want the court to do with this piece of information? If you did not serve Khama and you do not have his affidavit claiming the said position, do not mention anything to me about him. He has never sworn to an affidavit on the said allegation.
Tamocha: I find myself in a frying pan.
Judge: When did your client first become aware there was some kind of alleged controversy regarding the leadership of BDP?
Tamocha: On October 26th.
Judge: Will it be wrong for me to assume he got to know after his application to have a re-run was rejected?
Tamocha: It was during the consultation when I told him about the article.
Judge: Are you appearing as a lawyer or a witness?
Tamocha: Both
Judge: I have never seen that! A lawyer! And you are even talking about an article by a third party!
Tamocha: I have deposed an affidavit that I told my client about the said article.
Judge: Do you know that I can have the Law Society investigating you for doing that? How can a lawyer do that?
Tamocha: I did not know that it was wrong to do that. I will scrap off the affidavit.
Judge: It is impermissible…And if we accept this evidence, it means this whole application was triggered by an article…And tell me what was your client doing from October 26?
Tamocha: There are events that transpired from October 26. My client was not happy and he appealed and on November 26, he became aware of his disapproval. So, I want the court to give him benefit of the doubt that despite that information being in the public domain, he might not have seen it.
Judge: Okay…except that on the 23, like you said, you disclosed it to him. You must know how to keep confidential information as a lawyer.
Tamocha: He got knowledge that his appeal didn’t succeed on October 26, and he launched this application on December 17. And his main prayer is to have a re-run in Lobatse. If the matter is not heard on urgency, the general elections might come before he is heard.
Judge: How is a re-run possible when you haven asked me for a review? This argument is misleading and misplaced. It does not understand the power of this court. This is the case which requires case management procedures. There are so many different views of facts here….You see, there is not even an affidavit from anybody that, ‘I am the true leader of BDP,’ or that, ‘I have been appointed by the true leader to be a leader, and not Masisi.’
Tamocha: You are putting me in a frying pan. And I’m trying to run away from that.
Judge: (smilling) But I am not chasing after you…I am right here…Should I really continue to go on with this matter? Maybe take a moment with your client.
Tamocha: He is not here.
Judge: But you have his phone.

Court adjourns for 15 minutes.

Court resumes

Tamocha: I was not able to get hold of him. I will stick with the arguments I have already placed before court…..

Meanwhile, BDP lawyer Busang Manewe implored the court not to treat the matter as urgent, saying Kamal has not behaved like a candidate of urgency. Manewe: If the applicant does not swiftly and immediately approaches the court, they have waved their urgency. This Kamal joined the BDP on November 9, 2016. President Masisi was sworn as President on April 1, 2018, and he simultaneously became president of the BDP. For almost two years, Kamal has been a member of the BDP, and when Masisi was sworn as president, he was still a member.


Masisi continued to carry duties as the BDP president and nobody challenged him; he addressed Central Committee of the BDP, and nobody challenged him. On August 11, 2018, he addressed a meeting of all 38 held constituencies at Palapye, and Kamal was in attendance. The key issue at the meeting was primary elections. Kamal never asked Masisi who he was, and he goes on to take part in primary elections.


Judge: What if he was waiting for the right time?
Manewe: Out of disgruntlement of losing primary elections, he appealed, and on November 14 he was advised that his appeal was not successful. And he does nothing, five days later, he sent his lawyer to come collect his letter. This shows there is absolutely no urgency about it.

What was he doing all these six days after his appeal was dismissed?
Judge: What if he was still consulting?
Manewe: As an applicant he ought to have followed up his lawyer if he knew his matter was an urgent.
Judge: How can an applicant bother a lawyer when a lawyer understands cases better?
Manewe: He ought to have known that when you approach the court on urgency, you disrupt the internal business of the court.
Judge: That is not true. I was no interrupted. I am sitting here as a vacation judge. The court plans for such matters.
Manewe: I submit that this applicant does not meet the threshold of urgency set by the courts. His application should be dismissed with costs.


HOW AG WAS ADMITTED AS A FRIEND OF THE COURT

Chief State Counsel Otlaadisa Kwape: I have just received an answering affidavit from the applicant this morning in court and I have sent it to AG (Abraham Keetshabe) to respond since he is the one who deposed the founding affidavit. He has showed interest to respond on two points.
Judge: If he is really interested in this case, he ought to be here with us.
Kwape: We can adjourn for two hours.
Judge: So, AG is in the office and wants us to adjourn? Can’t he send someone or talk to you through technology? We have postponed this matter for so long, it will be prejudicial!
When you want to come in as a friend of the court you are now in an area called ‘discretion’ of the judge. And you tell me AG is sitting in the office and wants us to wait, it does not please me at all… He should himself be here next to you bagging you with your coat. I know these things. I have represented AG before.
But because you want to do this to help me deal with this matter, I will wait. I am sorry this case is going this way, but it is an important case, and enough information will help me as a judge so that I do not make mistakes. Remember I’m just alone in this case though cases of this nature would attract at least five judges.
Go and convey my sentiments to your principal and tell him not to forget he is coming to me as a friend of the court.


Court adjourns
Court resumes

Kwape: We just filed a replying affidavit for an application to be granted leave as a friend of court or as a co-respondent in the proceedings. In our arguments we are citing the case of Professor Kenneth Good.
Judge: Don’t come to me and cite rules of the Court of Appeal (CoA) unless the case was to decide on a High Court decision.
Kwape: it was to decide a decision of the CoA. But, as the highest court, its decision binds any other court.
Judge: It is not true. Not everything is binding. Here in the High Court we do not follow decisions of the CoA blindly. It is not just a general blanket statement. That is what we teach first year students wrongly!
…It is going to be a long day for you, I see…
Kwape: Indeed my Lord…According to Section 52 of the Constitution of Botswana, AG is the Principal advisor to the government. AG has an interest in interpretation of certain provisions of Botswana constitution, which seeks to protect the president of legal proceedings in his private capacity. According to Section 51 Rule 41 (II) anything that HE may do, he cannot be sued for any act that is done privately, but anything done officially he can be sued.
And here we cite the Motswaledi case…May his soul rest in peace
Judge: This is not a church or something, just go straight to your point. Tell me how that case is relevant.
Kwape: The then President, Khama, was spared from being sued for things he has done privately.
Judge: But how do you fit in here as AG. Have I said I need a friend to assist?
Kwape: The second respondent in this matter is President Masisi, and Rule 41 is entitled to protect the incumbent president from being sued, in particular things he did in his private capacity.
Tamocha’s turn to argue
Tamocha: AG should not be accepted as a friend of the court in the case. The same case AG cited of Good, the role of a friend of court is to draw the attention of the court to relevant matters of law to which attention would not otherwise be drawn. AG has stated that their interest is in interpretation of the law, and this has already been raised by the first respondent, the BDP.
Judge: Isn’t it a different approach? Here they say automatically they are joined. They are now telling the duties of AG to the president, and this is a different thing from what the BDP is arguing. They are here saying they are obliged by legislation and it has not been raised by other respondents.
Tamocha: They are not bringing anything new. It depends on the matter
Judge: Exactly their point…
Tamocha: We submit that their application is improper

At the end, the judge granted AG application to be cited as friend of the court, and the court is yet to give reasons on its decision.

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