Court of Appeal's Justice Monametsi Gaongalelwe has won a suit in which he took the government to court over an audit report that fingered him for benefitting from the housing allowance he was not entitled to.
Gaongalelwe, who went to court in 2016 following the judges’ housing allowance saga that resulted in four Justices of the High Court being suspended, was seeking a review of the audit report commissioned by the retired Chief Justice, Maruping Dibotelo.
The audit report that was commissioned following accusations that some judges fraudulently benefitted from the housing allowance they were not entitled to, also fingered Gaongalelwe for having been one of the beneficiaries.
The audit reported that Gaongalelwe benefitted from the allowance at around 2003 and 2004 when he was stationed in Francistown despite having free accommodation, something that triggered him as he explained that he was staying in a hotel and did not have accommodation as suggested.
His pleas for his name to be expunged from the audit fell on deaf ears prompting a lawsuit.
Following an intense court case, Justice Michael Mothobi of the High Court on Monday delivered the anticipated judgement granting Gaongalelwe the relieves that he had sought in his lawsuit.
Mothobi granted a judicial review and ordered that the portions of the Final Internal Audit Report authored by Maria Mokgethi of the Ministry of Defence, Justice and Security dated May 23, 2016 which apply to, or refer to Gaongalelwe, be set aside and struck out.
“Also the reference in the Final Internal Audit Report to the Applicant insofar as they relate or refer to him as a recipient of overpayment of housing allowance be set aside and expunged from Final Internal Audit Report,” he said.
In his reasons Mothobi explained that Mokgethi, who carried the audit, acted irrationally in refusing to remove the applicant’s name despite all the information put forward.
Mothobi said during the case, it was pointed out by Gaongalelwe’s attorney in his heads (of arguments), and during his oral address to the court that in spite of the Registrar supporting the applicant’s submissions recording that he supported removal of the applicant from the report, Mokgethi still refused to accede to it.
“It was further submitted that her decision was unreasonable, alternatively grossly unreasonable and irrational and accordingly, the court is asked to have reviewed and set aside the decision insofar as it relates or refers to the Applicant in the report as a recipient of overpayment of housing allowance, and particularly to set aside and be expunged from it,” he said.
Mothobi mentioned in his opinion Mokgethi ought to have given consideration to this matter and reached the conclusion that Justice Gaongalelwe was entitled to be paid a monthly housing allowance while in Francistown so long as a rent-free government house was not provided.
On that contention Mothobi said, “It will be recalled that this is the view also taken of the matter
As before said, he wrote on August 22, 2016 to the first respondent intimating that he acceded to the demand that the Applicant be removed from the report on the grounds that he should not have been there in the first place.
“I conclude that had the first respondent looked at the issue in this way, there is no doubt that she would have acceded to the request made by the Registrar when he sent a confidential savingram to her on June 27, 2016”.
Mothobi noted that it was convincing by the views of the other two judges on their say on the savingram that a hotel room and a pool room respectively could not be a substitute for a Judge’s institutional house with all its amenities, and do support the request to have them removed for the reasons given in their submissions.
He pointed out that one question, which could be asked in dealing with the application, was whether the employer provide a rent-free house for the applicant, which the only one answer would be a “No”.
“Consequently, since no rent-free house was provided, the employer was obliged to pay housing allowance, as agreed, and during the applicant’s one-year tour in Francistown,” Mothobi noted.
He, in his reasoning said it was pertinent to observe that the provision of a government house or payment of housing allowance was a subject, which has received a very great deal of attention during oral addresses, more so that one of the applicant’s entitlements as judge, and other judges besides, was a rent-free house or housing allowance in the event that the judge was not living in a government house.
He explained that it was a subject for much disagreement in that Mokgethi in her answering affidavit was quick to point out that it was the applicant himself who asked to be allowed to stay at the hotel indefinitely.
As before stated, however, the fact was that the 14-day period he was given to stay in the hotel was coming to an end and written authority was given to him to continue his residency at the hotel since the competent authorities were not able to provide a government house.
“The first respondent in her answering affidavit took the view that the applicant was exaggerating when he said that a hotel room was not the same thing as a government house with multiple bedrooms, furnishings, office space, a garden and garage,” Mothobi said.
He also said: “The present is a proper case for a referral to the Director of Public Prosecutions to make an inquiry.
It may very well be that in doing so, he will consult the Attorney-General”.