Mogalakwe Fights Imminent Auction Of Property
Former Mosolotshane/Moralane councillor, Mogalakwe Mogalakwe has filed another urgent application to have a High Court writ of execution, which seeks to auction off his property set aside.
This comes after the Botswana Democratic Party (BDP), through their attorneys, sent a deputy sheriff to attach Mogalakwe’s property.
Mogalakwe’s plea is that he had filed a review application in which he wants P392,117.68 bill in the election petition legal costs against him to be given another look.
His augment is that the deputy registrar did not properly tax him. Equally, he reasoned that the registrar had failed to interpret the court judgment properly.
“If the sale in execution is allowed to proceed, I stand to suffer prejudice as the sale will have the effect of defeating the review application,” argued Mogalakwe, who was vying for councillorship under the Alliance for Progressives banner.
“I verily believe that the review application will be successful and the amount of the costs to be paid to the BDP will be far less than the taxed bill. The matter is made even more urgent as the BDP has advertised for sale in execution of the attached property, with the full knowledge of the application for review and the stay of execution filed of record.”
He stated that the said advert is prejudicial to his review application and is intended to force him to settle with the BDP on amounts that he feels are unreasonable, and should be re-taxed.
Mogalakwe argued he stands to suffer irreparable loss if the property is sold before the application for review of the taxation is concluded, as he will not be able to get the property back once it has been sold by public auction.
He further said there is a possibility that the taxed amount in the current writ of execution may be reduced once the court finds it in his favour.
The former councillor said it is necessary to interdict the BDP sheriff from removing any property pending final determination of the review proceedings.
Early last month, the BDP rejected Mogalakwe’s application citing that it was fatally defective in terms of the taxation rules.
The ruling party said the review application was defective as it sought to challenge the decision of the taxing master while there was a statutory notice to her representative.
“The application is fatally defective because it seeks to challenge the decision of the taxing master, but her statutory representative being the Attorney General has not been cited. Order 58 in no way detracts from the provisions of the State Proceedings Act in this regard,” a BDP attorney has said.
The ruling party’s contention is that Mogalakwe has not filed a statutory notice to sue even though he is suing a public officer for the exercise of her powers.
In addition, the BDP attorneys indicated that Mogalakwe has not given the reason why he has not complied with the provisions of the State Proceedings Act by serving a notice to sue the government. Therefore, their contention was that the application is, “...nullity and is liable to be dismissed with costs”.
The BDP attorneys said the application purports to have been brought in terms of Order 58 of the High Court, but it failed to comply with the requirements of Order 58.
Order 58 rule 1 of the High Court states that “any party dissatisfied with the ruling of the taxing master as to any item or part of any item which was objected to may within 14 court days of the allocator require the taxing master to state a case for the decision of a judge, which case shall set out each item or part of an item together with the grounds of objection advanced at the taxation, and shall embody any relevant findings of fact by the taxing master; provided that, except with the consent of the taxing master, no case shall be stated where the amount or the total of the amounts which the taxing master has disallowed or allowed as the case may be which the party dissatisfied seeks allowed or disallowed respectively is less than P10,000”.