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Motshwarakgole trumps Khama again

The National Amalgamated Local Central Government and Parastatal Workers Union (NALCGPWU) otherwise known as Manual Workers Union has again triumphed over President Lt Gen Dr Ian Khama.


Khama and a coterie of other applicants in the matter including Gladys Kokorwe, Athalia Molokomme, Justices of Appeal Elijah Legwaila, Isaac Lesetedi, Stephen Gaongalelwe, John Foxcroft, John Cameron, Arthur Hamilton and Craig Howie had sought a stay of execution relating to the operation of a court order which declared unconstitutional, the appointment of CoA Justices to multiple three year contract extensions.


Justice Abednigo Tafa last week Friday handed down a judgement which struck down as unconstitutional, section 4 of the CoA act which allowed the president to determine the number of Justices of Appeal. It further stated that the appointment of Justices of Appeal on more than a three year contract as has been practice for many years, is unconstitutional. He further struck down the appointment of Justices of Appeal other than the Judge President as unconstitutional. Khama and company had sought a stay of execution as a matter of urgency which Tafa dismissed this Thursday.


In “general observations” he made before issuing his ruling, Tafa stated that the original case whose success resulted in the current incapacitation of the CoA, contrary to media portrayal, it was not a contest between Johnson Motshwarakgole and President Khama.
Instead, he said that in his understanding, the original case was between a collective known as the National Amalgamated Local Central Government and Parastatal Workers Union represented by Motshwarakgole acting as its organising secretary and also its applicant and the Office of the President of Botswana and other defendants including the National Assembly and the Attorney General.


Tafa continued to state that the section of the CoA act that his court struck down as unconstitutional was “enacted way back in the year 1980.It was repealing an earlier provision that had been enacted in 1972.” He said. He also noted: “it does not require knowledge of rocket science to understand that the act was more than twenty years before President Khama became the president of this republic.”


He further stated that he can say without fear of being contradicted that the piece of legislation was enacted long before Motshwarakgole was appointed to his position and before Manual Workers Union was reconstituted in its present form. Khama had wanted the order of the High Court halted so that “the CoA could continue in the public interest pending the intended appeal.”


He had also argued that there are currently two constitutional matters that were argued before the full CoA in January whose judgements are reserved. He also said that if the orders are not stayed, the Justices who presided over those cases will not be able to sign and deliver their judgements, to the prejudice of the litigants and the public at large. To convince Tafa, Khama further noted that “already the application session of the CoA which was to begin on the 17th of Friday 2017 has had to be postponed.”


He further argued that relying solely on High Court judges for the appeals of CoA who are ex-officio judges will be extremely disruptive of the normal work of the High Court and will be prejudicial to litigants. Khama noted: “the granting of a stay will ensure the continued smooth operation of the Administration of Justice, which is a national imperative and will cause no prejudice to Manual Workers Union.”


Motshwarakgole however countered that, given the findings made by the court, it would be unlawful, inappropriate and improper for Justices Lesetedi, Gongalelwe, Foxcroft, Cameron and Howie to sit in any future appeals unless and until the judgement has been set aside.


Motshwarakgole also said that Khama and company had exaggerated the prejudice they stood to suffer if a stay was not granted choosing to ignore the prejudice which will result if the justices of the CoA were to continue to act if the court’s judgement had not been delivered. The union boss also described their prospects of success on appeal as so poor that the application for stay should be dismissed.


Motshwarakgole further responded that the incapacitation of several judicial officers at the same time is not new in Botswana referring to an example of suspended four High Court Judges, Mercy Garekwe, Modiri Letsididi, Ranier Busang and Key Dingake. He said that the quartet was at the time of their suspension dealing with over 400 cases each and had part-heard trials as well as having several outstanding judgements. He argued that, this did not stop the wheels of justice from grinding on.


Tafa also noted that according to Manual Workers Union, there is accordingly no reason why the disqualification of a few justices of Appeal, most of which sit only twice a year, should bring the wheels of justice to a screeching halt. He further states: “this is particularly so when one has to regard the fact that all judges of the High Court are also ex-officio judges of the Court of Appeal.”


He further stated that in his judgement the prejudice to be suffered by the litigants in the two cases where judgement is pending before the CoA, is far outweighed by prejudice to be suffered by Manual Workers Union and many more litigants, should the court grant a stay only for the applicants to lose their appeal after more cases have been presided over by the concerned justices of appeal.  


Tafa also stated that: “At any rate, one should ask oneself what would happen if one or two justices of the Court of Appeal were to pass on before they delivered judgement. This would certainly cause prejudice to the parties but it would not mean that they would be left without a remedy. A differently constituted court would not find it difficult to hear the cases de-novo (afresh).” He then noted that there is no reason why the CoA cannot enlist the services of some judges of the High Court to assist in carrying out the functions of the court who are ex-officio CoA judges.

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