Two of South Africa’s finest senior counsels battled each other at the Court of Appeal (CoA) yesterday trying to convince the court on the proper interpretation and constitutionality of justices of that court.
Advocates Wim Trengove and Alec Freund are considered amongst the best legal brains in South Africa and are also regulars at the High Court and the CoA of Botswana.
Trengove appeared for President Ian Khama, CoA judges and others who appealed a landmark judgement delivered by Justice Abednego Tafa in which he invalidated the appointments of some of the CoA judges.
In his judgementTafa ordered that the appointment of Isaac Lesetedi, Monametsi Gaongalelwe, John Foxcroft, John Cameron, Arthur Hamilton and Craig Howie was invalid in that the President had no right to reappoint them to the bench. The judgement followed a challenge by the Johnson Motshwarakgole led National Amalgamated Local and Central Government and Parastatal Workers’ Union against President Khama on his appointment of the CoA judges. The union argued that no judge should be reappointed after a fixed term.
The presiding bench comprised of foreign judges appointed by the Judicial Service Commission (JSC) and two High Court judges, Terrence Rannowane and Leatile Dambe. Retired deputy president of the Supreme Court of Appeal of South Africa, Louis Harms, retired Chief Justice of Zambia Ernest Sakala and deputy Chief Justice of Namibia Petrus Damaseb were the foreign Judges on the bench.
Trengove shot the first salvo by submitting that it is common cause for Parliament to delegate its powers or sometimes not at all. He said the Constitution prescribes the number of CoA Judges. “It is true that the President does not legislate, but determines the number. Parliament has chosen to leave a technical determination to the President,” Trengove submitted. He added that it was permissible for parliament to make that determination from time to time and that, when a
“A law has to be obeyed until it is invalid. Appointments of Court of Appeal justices have always been valid.”
In retaliation, Freund submitted that the CoA Amendment Act accepts the correctness of Tafa judgement. “The Amendment Act demonstrates willingness of the applicants to comply with the judgement,” Freundargued, before adding that there was no case of a delegation of powers.
He also said this was not a matter of a minor technical issue. It is an issue in which the citizen is entitled to know by consulting law books. “If the constitution requires it to be specific, it should be specified by law.” He said the notion of executive discretion on whether the sitting judge continues his tenure after expiry of the first three-year tenure, is incompatible with the constitution. Judgement has been reserved in the matter.
Trengove and Freund were some of the advocates hired a few years ago by the Botswana Federation of Public Private Parastatals Sector Unions (BOFEPUSU) affiliates to appeal a decision to fire essential workers who were engaged in a public strike in 2011.
BOFEPUSU lost the case with costs. Trengove was also hired to challenge the constitutionality of President Khama’s refusal to appoint attorney Omphemetse Motumise as a High Court Judge.
He lost at the High Court and on appeal, Motumise and the Law Society of Botswana (LSB) roped in the services of Freund who emerged victorious at the CoA. Freund, unlike Trengove, is a familiar face in the courts as he has appeared for BOFEPUSU affiliates on numerous occasions. Yesterday the two brains crossed swords in the opposing benches.