Judge Segopolo to preside over Nchunga case
Mpho Mokwape | Monday February 14, 2022 06:00
This means Judge Segopolo will preside over former deputy permanent secretary in the Ministry of Justice, Defence and Security Nchunga Nchunga’s dismissal case despite the State calling for his recusal.
The State had wanted judge Segopolo’s recusal from the case accusing him of being bias.
When dismissing the application, Justice Lesetedi said the matter was not properly before court and that the court did not have jurisdiction to entertain it until leave was sought and obtained as required under the court’s Act.
“The State’s arguments that an appeal against the refusal of a recusal application is one of right and not an interlocutory order should be outrightly rejected. It follows therefore, that this application is not properly before the court and the appeal is struck out,” he said.
Lesetedi explained that Nchunga’s attorney was right to raise a legal objection that the appeal was not properly before court and that the court had no jurisdiction to listen to the appeal.
Lesetedi said the scheduling order that resulted in the presiding judge being labelled to be biased in favour of Nchunga was not grounds enough to call for his recusal.
“The scheduling order resulted in State seeking a recusal which was denied. It goes without saying that the refusal of the recusal application was an interlocutory order. It was not dispositive of any of the issues relevant to the disputes between the parties,” Lesetedi lamented.
The State was seeking justice Segopolo’s recusal before the case went for hearing on the merits.
Currently, Director of Public Service Management, Permanent Secretary (PS) of Defence Ministry, Permanent Secretary to the President (PSP) and Attorney General are in a legal battle with Nchunga and the case is pending before judge Segopolo at the High Court.
Nchunga is seeking a review of the decision by President Mokgweetsi Masisi to fire him from his post.
At the time he was fired through a letter signed by then PSP, Elias Magosi had about four years still left on his five-year contract as it was renewed on April 1, 2020 and was expiring on March 2025.
The State, which is represented by Advocate Sidney Pilane, wanted judge Segopolo to recuse himself from the matter on grounds that he had exhibited biasness especially that a dispute had ensued and the judge did not take notice of it despite an objection raised.
“The matter was scheduled for substantive hearing with preliminary objection and the merits of the review application to be heard simultaneously. A dispute subsequently ensued in respect of whether the scheduling of the hearing of the merits of the review application was consent. We feel it was not by consent therefore the recusal application,” Pilane argued.
Advocate Pilane explained that they opted for recusal because the judge did not listen to the objection that an order scheduling the merits of a preliminary objection and that of a review application was prejudicial to them.
On the appeal not being properly before court, Pilane said it was not the case as the application was dealt with as a stand-alone.
He explained that the appeal did not need a leave for appeal since it was not connected to the merits of the main application.
The respondent, Nchunga, did not agree with the State’s contention for the judge to recuse himself and asked the court to throw the case out.
His attorney, Mboki Chilisa said the appeal was not properly before court because no leave to appeal was sought.
“The State without seeking leave to appeal proceeded to note an appeal against the ruling. We submit that the State’s appeal is not properly before court as no leave to appeal has been sought from the court below,” he said.
Chilisa said the appeal was not properly before court because the judge’s decision to refuse to recuse himself was interlocutory in the sense that it did not relate to the merits of the dispute between the parties and could therefore never be the last word on the merits of the parties’ dispute.