Former President Lt Gen Ian Khama has said he is disappointed by the remarks directed to him by Botswana Congress Party (BCP) President Dumelang Saleshando, but he will just wait and see how far he wants to go with his remarks before he decides whether and how his response should be.

The P110 million court battle involving mining giant, Debswana and Infotrac (Pty) Ltd, its erstwhile business intelligence partner, came to end on Wednesday. The Court of Appeal, after delaying a verdict due to questions around conflict of interest involving some members of the panel, final put the matter to rest.

Infotrac now has legal costs to settle. First their recusal application was dismissed with costs, secondly Debswana won its appeal with an order of costs against them.

The company wanted three judges presiding on the appeal case to recuse themselves, citing a conflict of interest relating to main character, Justice Lakhvinder Singh Walia’s involvement with the law firm that represented Debswana.

However, presiding South African judge Johan Froneman, Court of Appeal (CoA) Judge President Tebogo Tau and Walia dismissed the application on the basis that Mompoloki Motshidi, the company director, filed the application intentionally to influence the outcomes pending an appeal.

The recusal application was filed 21 days after the appeal was heard pending judgment which was set for the week after, where Infotrac requested for a different panel of judges to allocated to re-hear the appeal in due course.

However, CoA resolved that the complaint to Chief Justice (CJ) Terrance Rannowane on the 19^th of July 2023 and report to Directorate on Corruption and Economic Crime (DCEC) on the 24^th of July 2023 on Walia and Tau by Motshidi amounts to contempt of court in the form of scandalizing the court.

The three Justices concurred that there is no explanation as to why Motshidi approached the CJ and the Directorate before launching the recusal application.

They revealed that CJ refused to entertain the complaint on the basis that he had no competence to interfere in a matter that was still subjudice.

Infotrac’s grounds were that Walia was so intemperate in his questioning of its legal representative during the appeal hearing, which gives rise to a reasonable apprehension of bias on his part.

When Froneman dealt with that ground, he reasoned that any informed observer of CoA would know that dynamic and sometimes robust debate and interaction between the bench and counsel is the very stuff of an appeal hearing, as is the case in many other jurisdictions.

“Of course, that does not justify rude and unfair treatment of counsel, but neither does it prevent searching questioning of counsel’s arguments from the bench and for counsel to react appropriately thereto.”

Froneman stated that an observer would have known that the episode in court was not an instance of partiality, but part of the continuing debate in court between the bench and counsel and also thereafter, in the further deliberations between the judges themselves, before finally deciding the outcome of the appeal.

The second ground of recusal was the relationship between Walia JA and Debswana’s legal representative in the appeal and in the High Court created a similar apprehension of reasonable bias. Infotrac say it was alleged to flow from both the past and present professional contact between Walia and Carr-Hartley and the firm of attorneys (Armstrong), as well as the fact that Walia’s wife worked as a secretary for Mr. Carr-Hartley.

According to the ruling, an informed observer would have been aware that the supposed apprehension of bias arising from Walia’s historic relationship with Armstrong and Carr-Hartley had been laid to rest by CoA in the Mogale case.

According to the ruling, the complaint about the alleged involvement of Theresa Walia is similarly devoid of any merit.

“An informed observer would have been aware that she has been working as a secretary for Mr. Carr-Hartley at Armstrongs for some time. Any informed observer would not have considered it untoward for Walia to sit in matters involving her work as a legal secretary for Mr. Carr-Hartley.”

Froneman says that the reasons advanced in the founding affidavit of her likely involvement in sharing knowledge of the case with her husband beforehand and during the pandemic are simply fanciful and ridiculous.

“She was not involved in the appeal at all. It is because of Infotrac’s spurious allegations that she was forced to depose to an affidavit in the recusal application. It has manufactured a so-called further conflict of interest and cannot complain when it is debunked.”

According to the Coram, an informed observer would have attempted to influence the outcome of a pending appeal, especially after the hearing of the appeal in open court, by approaching institutions other than the court itself in an effort to thwart the outcome of the appeal.

“And he would not have made the outrageous and scandalous accusations, based on speculation and gossip. Both these actions come dangerously close to, if not actually constituting, contempt of court”.

I LOST NOT TO DEBSWANA BUT TO A JUDICIAL SYSTEM PLAGUED BY CONFLICTS OF INTEREST- MOTSHIDI

Motshidi, however, expressed his stand on the judgment over a statement. He submitted that he accused the judges of a conflict of interest, not out of spite or a desire to undermine the integrity of the judiciary, but out of a profound belief in the principles that Botswana’s legal system supposedly upholds fairness, impartiality, and justice.

“My case was never just about me, it was about representing the countless small individuals who have often found themselves pitted against a system that appears inherently biased against them. I firmly stand by my assertion that I lost not to Debswana, but to a judicial system plagued by conflicts of interest. It is a system where the scales of justice seem to tilt towards the powerful, where the voice of the common man often goes unheard, and where the promise of justice for all remains elusive am livid not because I lost, but because the very system that is meant to safeguard our rights and provide a fair and impartial forum for dispute resolution failed to address my concerns adequately. My concerns were totally ignored by the CoA judges. At some point, I felt like a cockroach seeking justice in a court of chickens. I implore every citizen who believes in the principles of justice and equality to reflect upon this case. It is a stark reminder that our judicial system is not infallible and that it is our duty as a society to hold it accountable when necessary. We must work towards a system that is truly impartial, where conflicts of interest are promptly addressed, and where justice is not a privilege reserved for the powerful but a right for all. I was fighting against a system that appears to prioritize its own interests above the very ideals it was established to uphold. My last words are that these judges should have recused themselves to ensure an untainted and equitable proceeding.”

Lobatse High Court, Modiri Letsididi has reacted with shock at reports that a complaint has been lodged against him by a litigant for allegedly failing to deliver a judgement timeously.

Responding to the allegations levelled against him, Letsididi said: “The facts are clearly distorted.”

According to Letsididi; “The attorneys had brought an urgent application together with a review application in one application.”

He said he delivered a ruling on the urgent application and made it clear that Order 61 (review application) required that a review can only be addressed on receipt of a record of proceedings from which the decision to review was based.

“Clearly Letlole (the attorney for the litigant) had not read the order because at the time of filing the review application he had not obtained and filed the record. That was the sole cause of delay for a year or so until the record was finally filed and the matter heard on argument on the 24th March 2023,” the judge said.

He said “The judgment was reserved to 8 June 2023. Thereafter the file could not be located despite a diligent search. The file has now been found and judgment will be delivered on Monday.”

Regrettably, Letsididi said, “the learned attorney has for reasons best known to him never raised with me, as courtesy demands, a concern regarding the delay.”

Letters that was filed with Chief Justice Terrence Rannowane and copied to JSC, accuse Justice Letsididi of not delivering a judgement relating to a review application that was brought by a company identified as Drift In against BPC.

The letters indicated that Drift In had filed an urgent/ interlocutory application and review application. Subsequently, one of the letters states, only a ruling for the interlocutory application was delivered, not the review application.

“After a prolonged delay, and the retrieving the file from archives, another date was set for the argument on the review application, for the second time,” one of letters from Letlole Makgane, dated 11th September 2023, says.

The letter indicated that matter was argued in April and a ruling was to be delivered on the 8th June 2023, at 1400 hrs.

“Same was not delivered, and no date has been communicated. This is a matter where the pleadings were finalized in the same year it arose, in 2020,” the letter says.

It further stated that it is the third month since ruling was due, and sixth (6th) month since arguments were made.

“Our client’s fear is that the matter will follow the route it took, and he is called again to pay costs,” the letter reads in part.

“That the matter dragged on from 2020 to 2023 is prejudicial enough, the costs of having to pay twice for a matter that has been argued, makes it difficult not to agree with client. The prejudice suffered cannot be gainsaid,” says the letter.

“We had filed a review application under the aforestated case number (MAHGB 000263 – 20),” Letlole said in another letter dated 3rd December 2023 states that;

“Subsequent to finalization of pleadings, an urgent application was filed sometime in September 2020, and at the hearing thereof, it was agreed that the merits would be consolidated with the application and the argument will be heard on the 6th November 2020,” he said.

He said the matter was heard, and the Court pronounced that the issue of urgent application would be decided on costs given to the succeeding party in the review application.

“The date of judgment was held to be the 27th February 2021, owing to the exigency of the matter, it being a procurement issue, and consequent to the directive of His Lordship that the procurement issues be dealt with. Expeditiously,” the letter noted.

“The 27th February came and passed, and the explanation was that His Lordship Letsididi was held up by Court of Appeal session, such that it delayed in him issuing judgment,” added the letter.

It says two months down the line, in May 2021, the lawyers filed another urgent application for stay pending ruling, however it transpired that the ruling came out on aspect of urgency only and was only handed to the Respondent’s legal practitioners, and in the review application, His Lordship merely stated that ‘from what he saw of the documents’ there were little prospects of success.

“To date no ruling has been rendered on the review application. Several attempts have been made, on the 23rd September 2021 the matter was set down for status hearing, but His Lordship was not there,” the second letter says.

“It was postponed to the 26th November 2021, still his Lordship was not available. To that end, with a full year having passed, and the Respondent at large since an application on an interdict having been dismissed, there is no end in sight for the review application,” the letter read in part.

According to the letter; “The file had been packed as a closed file, and with a plethora of letters written for clarity, we have nowhere to look for except to His Lordship, and the Judicial Service Commission.”

Reports indicate that the matter arose from an urgent application filed by Drift In on the 22 September 2020 the Applicant filed a notice of seeking, in the main, the following prayers; that the BPC should be interdicted and restrained from proceeding any further with the award of Tender NO. 4142/20 for various meters pending the finalization of the parastatal’s decision to annual the tender and the finalization of Drift In’s application for review. The background facts giving rise to these proceedings is that on or around February 2020 BPC floated, to the business community, tender NO. 3890/19 seeking the supply and delivery of “single (1) phase and three (3) Phase PLC Split. Drift In was of the 15 bidders who submitted a bid. The bids were considered by BPC’s executive committee of the Procurement and tender Committee (“PTC”) on the 23 March 2020.