Presiding High Court Judges Singh Lackvinda Walia, Zibani Makhwade and Leatile Dambe have reserved judgement in a matter in which the four suspended Judges, likewise of the High Court, Justices Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang want the Registrar to furnish them with court transcripts.
The applicants in the matter are the four suspended judges while the 1st respondent is Registrar of the High Court, and President Dr. Lt. Gen. Seretse Khama Ian Khama is being cited as the 2nd respondent. The Judicial Service Commission is the 3rd respondent with Chief Justice Maruping Dibotelo mentioned as the 4th while the Attorney General is the 5threspondent.
The judges say they want proper and accurate records of the court proceedings with regard to their matter of 4th February 2016, 31st March 2016, 28th April 2016, and 19th May 2016 to enable them to prosecute another application currently before court for recusal.
In the recusal matter, they want Justices Walia, Dambe and Makhwade to recuse themselves as they believe they have demonstrated biasness towards them in the main application for the review of the decisions taken by the Chief Justice Maruping Dibotelo, the JSC and President Khama.
According to the suspended judges’heads of argument, failure to provide them with the said proper and accurate record would be prejudicial to the applicants and would deny them the right to a fair hearing.
“Absence of such transcript impeach our ability to argue our case,” they insisted during their submissions in court on Thursday. They added that they vehemently trust that the case is urgent as they believe the transcript is essential to enable them to argue their case and present facts including arguing their matter properly before the court.
According to the suspended judges, they require the transcripts in order to be able to properly and effectively, backed by sufficient evidence, deal with their recusal application. “The recusal application is set down for Thursday 22nd September 2016 and the transcript contains the evidence that the suspended judges intended to use in the said matter. If the Registrar had furnished the quartet with a proper transcript on the 1st September 2016 or even by 15th September 2016 then the applicants would not have needed to move the court on urgency.”
The suspended judges maintained that they could not be afforded redress at a later date for the reason being that they intend to use the contents of the transcript as evidence in the recusal application which was set to be heard on Thursday this week, 22nd September 2016.
“The record of proceedings contain the utterances and questions and exchanges between the Honourable judges and applicants attorneys that have resulted in the applicants having a reasonable apprehension of bias against them,” they said.
The quartet emphasised that: “without the transcript of the record of proceedings (and an accurate one at that; which captures all that took place during the proceedings) being made available for use at the recusal application hearing, the applicants will be effectively denied the right to a fair hearing.”
Moreover, they insist that without the record of proceedings they will be denied an opportunity to put their case properly before the court and fully ventilate the same which is inherent in the right to a fair trial. The four-some stated in their heads of argument that they will therefore suffer irreparable harm in that the recusal application will then proceed without the necessary evidence to back up their averment of bias on the part of the Honourable judges based on the court interactions.
As such the judges ‘on thin ice’ highlighted that the application has to be heard first and an order granted compelling the Registrar to provide a proper and accurate transcript before the recusal application can be properly ventilated.
In their response to the application, the Advocate representing government stated that the process whereby the suspended judges are seeking for the court transcripts is a clear abuse of the legal process. He said there is no dispute at hand on the matter requiring a transcript and that “there is no need for a record to substantiate what they want the court to do.”
The government lawyers further contended in court that they are not convinced by the applicants’ arguments and believe that the quartet is just “applying delaying tactics” to the main application in which they are querying their suspension.
The judgement was thereafter deferred to 13th October 2016 where the presiding trio will make a ruling on whether or not the matter is urgent and, whether or not the suspended judges are entitled to be given the said court recordings.
The suspended Judges were represented by Patience Pepsi Thuto (who presented the arguments) and Bonolo Selelo from Chibanda Makgalemele and Company.
Standing in for the AG was Advocate Anuar Albertus (arguing in court floor) and Awald De Villers Jansen from South Africa who were accompanied by Pulane Kgoadi and Yarona Sharp also from the Attorney General’s offices.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.