Court strikes out ‘scandalous’ allegations
Mompati Tlhankane | Monday December 19, 2022 06:00
Delivering the ruling yesterday, presiding judge Godfrey Radijeng ordered that the averments which run from page 11 to 40 in the affidavit be struck out.
On Tuesday state lawyer Phazha Molebatsi argued that the averments would negatively affect the Judiciary and CJ outside the court proceedings.
He added that unnecessary details like phone calls, texts have been given in the averments therefore their submission is that the latter are scandalous and therefore should be struck out.
“CJ’s reputation will be damaged if those allegations are left to be part of the record,” he pointed out. Molebatsi indicated that the averments comprise defamatory connotations because they accuse the third respondent Rannowane of dishonesty and interfering in the Judiciary.
Ketlogetswe made news headlines recently after he accused CJ and the Minister for State President, Kabo Morwaeng of judicial interference with regards to Lobatse legislator, Dr Thapelo Matsheka’s case. Now Molebatsi feels that the averments narrate a sequence of events which gives an impression that there was an attempt to interfere with the decision of the judge. “The averments are sensitive and if they are not struck out the applicant will be forced to address the complaints from the respondent prematurely because the matter is yet to be dealt with. This has the potential to interfere in the rights of the JSC because the latter shall not be subjected to direction and control according to the Constitution,” he said.
He said the JSC does not need to disclose its procedures. As such, he said some issues will have to be responded to and cannot be avoided. Molebatsi also said the averments do not assist the court in any way and the court must not be used under the guise of being robust. “The court will be used as a vehicle to spread these averments.
The court should not be seen to condone or be used as a platform for inappropriate behaviour,” he said. The interlocutory application to strike out the averments came after Gaborone High Court Judge, Justice Gaolapelwe Ketlogetswe's interim interdict case against the Judicial Service Commission (JSC). In the interim interdict, Ketlogetswe seeks to stop the JSC from hearing the matter he had reported CJ to President Mokgweetsi Masisi who then referred his (Ketlogetswe's) complaint to the JSC as he does not want the Commission to deal with his matter. For his part, Ketlogetswe’s attorney Advocate Duma Boko whose client has since lost the case with costs said the State should indicate what is irrelevant in the averments and which of the averments is scandalous and how so.
He said the averments must be so worded for them to be scandalous as to be defamatory and abusive. “If they are they must be so worded as to be intended to harass or annoy,” he said. Boko said the first respondent in the main application being Masisi and the third respondent CJ are not applicants in the interlocutory application therefore they should avoid an undue and improper lumping or conflation. Boko indicated that the parties are separate entities which are independent of each other therefore they cannot be lumped together.
He said it is incompetent for the deponent to purport to speak for the CJ. Boko said when ‘a scandalous’ allegation is made it must relate to the applicant who should be in a position to demonstrate which part is scandalous, irrelevant and defamatory. He said if the averments are removed then there would be no background and therefore no substructure. “It will be singularly improper to have the averments structured that way,” he emphasised. Boko further emphasised that context is everything no wonder the averments need to stay.
Following the outcome of the interlocutory application, the main application (interim interdict) would be heard on January 4, 2023. Meanwhile, the JSC will not take any action regarding the Ketlogetswe matter until the interim interdict is heard and the matter finalised.