Magama, Leburu not authorised by BCP – State
The complexities of the case in which the Botswana Congress Party is objecting to the use of the Electronic Voting Machines played out in front of Judge Lot Moroka on Wednesday morning at Francistown High Court.
BCP, represented by Dutch Leburu, had approached court seeking amendment of its pleadings and declarations dated 7 September 2017.
In the amended declaration, BCP states that the EVM and its usage is not in compliance with the Electronic Communications Act.
The amendment further prayed for an order setting aside the use or intended use of the Electronic Evidence Act, alternatively setting aside such portions of the Electoral Act.
Leburu, who took over from Gabriel Komboni, who withdrew from the case following his appointment to the bench, said following consultation he has advised that it’ll become necessary to have the pleadings amended to include an important matter relating to the EVM which is the subject of the litigation.
Attorney, Mathogonolo Phuthego from Attorney General, vehemently opposed the amendment application and submitted that it be dismissed with costs.
Phuthego said the application was made late and will delay the marathon case’s trial.
Phuthego argued that both Akanyang Magama and Leburu have no authority to act on behalf of BCP.
“Magama had no authority to depose to the founding affidavit, while Leburu has no legal capacity to represent the plaintiff by way of a duly made resolution and a power of attorney.
“Everything he purports to do on behalf of plaintiff regarding this matter is null and void and should be jettisoned,’ he said.
Phuthego further argued that the amendment sought by the plaintiffs cannot stand because it is not captured in the statutory notice of intention to sue.
He said the pleadings have been long closed, and the report on the final pre-trial conference have been made an order of court, meaning pleadings can’t be re-opened.
“That’ll be contrary, to the well known principle that it is in the public interest that there should be finality in litigation,” he argued.
Responding to the defendant’s answering affidavit, Leburu said their application is opposed to the averment that there’s a need for statutory notice to effect the amendment and that pleadings have been closed.
He said contrary to Phuthego’s claims, Magama and himself have been duly authorised by the BCP led by party President Dumelang Saleshando to act on its behalf.
He further said while they concede that the application was brought late, it is clear that there’s an important legal question that requires addressing.
“This case touches the core values of our nation. It seeks to remove a voting process that has sustained us for 50 years and replace it with a machine from India. The inquiry whether this gadget complies with the Electoral Communication Act must be determined by this court,” Leburu insisted.
Setting 29th November 2018 as the date for his ruling, Judge Moroka said he wants the matter to be finished before the end of this year.
“This case involves elections and we cannot be seen to be holding the nation at ransom. We’ll have to move some cases or allocate it time on weekends to bring it to finality,” stressed Moroka.