Attorney Bugalo Maripe has urged the Court of Appeal (CoA) to dismiss Justice Monametsi Gaongalelwe’s appeal to have some part of the order of High Court Judge Michael Mothobi, which referred the payment and receipt of housing allowances to the Director of Public Prosecutions (DPP) for an enquiry.
Gaongalelwe had succeeded to have his name exonerated from the report at the High Court, a case in which he was challenging an audit report commissioned by former chief justice Maruping Dibotelo that suggested that he was one of the judges who were said to have received and fraudulently benefited in the improper payments of a housing allowance in the form of a salary.
Although he had succeeded, Justice Gaongalelwe who is also a sitting justice of CoA has appealed to the CoA complaining that Justice Mothobi misdirected himself by deciding that the payment of housing allowance to the him from August 2007 to March 2008 was a proper case of referral to the DPP to make an enquiry on whether he should be prosecuted for theft or stealing.
Arguing on behalf of the respondents, Maripe argued that the appealability of the case is unfounded, and as such not appealable.
“As observed, the appeal is only and in essence against the referral of the payment and receipt of allowances from August 2007 to March 2008 to the DPP for an inquiry. It is submitted that the part of the judgement which is subject of this appeal is not appealable to the extent that it is not a decision having final effect nor order,” Maripe argued.
He argued that the law provides that the judicial decision is only appealable if it has attributes such as being final in effect and not susceptible of alteration by the court of first instance, being definitive of the rights of the parties and having the effect of disposing of at least a substantial potion of the relief claimed.
“The referral complained of lacks the attributes of appealability in that it is not final in effect in that it does not establish the guilt nor otherwise of the appellant nor of any other person,” he said.
“It lies entirely within the discretion of the DPP whether or not to undertake the inquiry. In this sense, it cannot be final”, he argued.According to Maripe, even if the DPP does embark upon an inquiry in terms of the referral, the results of the inquiry are not predetermined. He submits that the DPP in any case retains absolute discretion to take action, one-way or the other, even where he is to establish criminal conduct.
He also said that in any event, the referral does no more than confirm the powers of the DPP to make an investigation in terms of Section 51 of the Constitution, and other permitting legislation, without being nudged or prompted by any party.
Maripe also submitted that it is not subject to alteration by the court a quo as the court has not made a decision affecting the rights of the appellant or altering his situation.
“The referral has no bearing on what the appellant wanted and does not reduce nor diminish his claim. It does not prejudice nor affect Justice Gaongalelwe negatively,” he argued.
Gaongalelwe’s lawyer, John Carr-Hartley submitted that Mothobi misdirected himself on issues that were not brought before him.
He stated that the judge ought to have afforded the Appellant the opportunity to be heard on these issues. He also said that the judge a quo erred in his interpretation of the law by finding that the Appellant took or converted money, which was fraudulently gained for own use.
“The court should alternatively find that in the circumstances, the appellant couldn’t have committed the offence of stealing. The appeal should be granted with costs,” he said.