UDC, Boko decry forum shopping
Want their case against Saleshando, Kekgonegile brought back to Gaborone from Maun Plead with CJ Rannowane for intervention
The Umbrella for Democratic Change ( UDC) and its leader Advocate Duma Boko have challenged the rationale behind having their case against Dumelang Saleshando and Goretetse Kekgonegile being heard in Maun.
Both Saleshando who is the Botswana Congress Party ( BCP) President and party Secretary General Kekgonegile have dragged the UDC and its leader to court challenging their three ( 3) months suspension from the UDC. Saleshando has since been removed as Leader of Opposition in Parliament.
In a letter written to Chief Justice Terrence Rannowane, the attorneys for UDC and Adv Boko have described this development as “forum shopping” since all litigants are based in Gaborone. In the letter seen by this publication Duma Boko and Company have requested the Chief Justice’s intervention to have this matter brought back to and assigned to a judge in Gaborone to avoid mulcting ( penalising) the parties, especially the Respondents, with its prohibitive costs involved. “The Applicants in this matter are all, in terms of their own averments in their affidavits, residents in Gaborone. The attorneys representing the Applicants are also based in Gaborone. The affidavits in the matter were also sworn and executed in Gaborone. “The Respondents are also based in Gaborone. The matter was, however, inexplicably, filed in Maun. There can only be one explanation for the conduct that being that the Applicants decided to engage in forum shopping,” the letter from the law firm reads. According to the law firm the conduct of the Applicants occasions great prejudice to the Respondents who are based in Gaborone since they must incur huge and unnecessary costs to litigate in Maun when it evidently is convenient, in all reasonableness, for this matter to be heard either in Gaborone or Lobatse. “We would like to register with your Lordship, our extreme displeasure and the grave prejudice we stand to suffer in having this matter registered and litigated in Maun,” the Duma Boko and Company law firm said in the letter. A response from the Chief Justice’s office issued this week Tuesday stated that litigants have a choice of forum as to where they register their cases. “My advice to you is that since you are aggrieved by the registration of the above case at Maun High Court Division you may, if so inclined, move an application before that court and motivate why the case should be transferred to the Gaborone division of the High Court,” the letter from the CJ dated 26th July 2022, reads. Saleshando and Kekgonegile have argued in the court papers that their suspension is an orchestrated plan by the UDC leader Advocate Boko to control the BCP within the coalition. The duo argues that the suspensions are unlawful, and wrongful and should be declared invalid. They were suspended for three ( 3) months, during a UDC National Executive Committee ( NEC) Meeting held in Palapye on the 25th of June 2022. Saleshando has stated in his founding affidavit that in days prior to their suspension, there had been traces of uneasy feelings of animosity between the UDC partners. He stated that in their representative capacity on behalf of the BCP, he and the 1st Respondent ( Adv Boko), who is also President of the UDC, are not sufficiently aligned on certain values and principles. “The BCP feels very strongly that the UDC’s current position on the constitution, internal democracy, and governance is unacceptable and has been openly vocal in that regard. The Applicants’ suspension is as a consequence, part of a larger stratagem by the 1st Respondent, to crack down on dissenting views effectively silencing the BCP within UDC, and amounts to an overreach, in so far as it is intended to force BCP’s hand as to whom must be its representatives within the UDC,” Saleshando said, adding that this is not acceptable in a democratic setup.
According to the BCP leader, Boko acted unreasonably, improperly, and with mala fides in suspending them from the UDC solely on account of differing views and opinions, which were expressed in their capacities as representatives of the BCP.
“It cannot be maintained that the resolutions and decisions of any organ or member of the UDC are not subject to review; that would amount to declaring the pointlessness of the UDC Constitution, or its absolute subordination to the judgement- always fallible- of the organs and members,” Saleshando said in the court papers. Saleshando and Kekgonegile want the court to declare that they are not members of the UDC but are delegates of the BCP at the UDC’s NEC. They further want the court to declare that Adv Boko and the UDC have no disciplinary authority over delegates of a ‘ Group Member’.
“I respectfully submit that the Respondents, acted illegally and unlawfully in suspending us, in so far as the UDC Constitution does not empower the 1st Respondent to suspend ‘ delegates’, as defined in the constitution.
“Their reach is only limited to UDC ‘ members’. The 2nd Applicant and I are card- carrying members of the Botswana Congress Party and in good standing. The BCP is a political party based and operating in Botswana and registered under the Societies Act,” Saleshando says in the affidavit.