CJ seeks expedited appeal against Komboni
Goitsemodimo Kaelo | Monday April 24, 2023 06:00
In an application filed at the Court of Appeal (CoA) and set for hearing today, Rannowane also wants the court to make an interim order returnable on May 5, 2023, and or pending when the appeal matter to be heard is finalised, directing the stay of execution of all orders made by Maun High Court in relation to his case against Komboni.
Rannowane and Gaborone High Court Judge, justice Komboni have been engaged in a bitter legal battle following last year’s decision to relocate the latter to Francistown High Court. Komboni challenged his relocation as well as the CJ's powers to judicial powers to transfer judges by instituting proceedings before Maun High Court judge, Justice Professor Bugalo Maripe.
Consequently, Justice Maripe then ruled in favour of Komboni; interdicting CJ from transferring Komboni to Francistown pending final determination of the matter in which Komboni was challenging the transfer and then again interdicting CJ from relocating the matter to Gaborone High Court to be heard by a panel of three judges. Rannowane then launched an appeal of the decision interdicting him from transferring Komboni pending the determination of the matter challenging his authority to transfer judges.
However, in a recent urgent application made to the CoA, Rannowane is seeking a stay of execution of court orders interdicting the relocation of his case against Justice Gabriel Komboni pending final determination of the matter.
Rannowane also applies that the appeal be heard on an expedited basis because Justice Maripe’s order caused serious irreparable prejudice to him as well as the administration of justice in Botswana and the public interest.
“If the appeal is not heard on an expedited basis, the applicants and the administration of justice of Botswana will suffer irreparable harm. Irreparable harm will also be visited on the applicants and administration of justice if judge Maripe’s order is not stayed pending the appeal,” Rannowane argues.
The CJ indicates that the harm is not only done to the parties before court. He argues that Maripe made a fundamental error when he extended a returnable order interdicting him from relocating the case to Gaborone. He says the serious prejudice caused by this decision to the judiciary is three-fold.
First, he says, the order has disrupted the efficient operation of the judiciary as the decision to transfer Komboni was made necessary by the important need to make space in the Gaborone Chambers for Judge Barnabas Nyamadzabo who is also the Chairman of the Independent Electoral Commission (IEC).
Rannowane states that with justice Komboni challenging the constitutional authority of the CJ to transfer judges, the decision has furthermore essentially brought the possible transfer of other judges to other divisions to a halt.
“Judge Maripe has found as a matter of law that the Chief Justice has no authority in law to transfer a matter from one court division to another. He has also found as a matter of law that the CJ’s powers to empanel a bench of judges consisting of more than one is constrained and fettered. As long as this judgment stands, the CJ will be hamstrung to exerciser these ordinary judicial powers which are vitally important for the proper functioning of the judiciary and the administration of justice,” CJ said.
Moreover, the CJ argues that Komboni is continuing to set-down matters for hearing despite his imminent transfer- conduct that will unduly complicate his transfer to Francistown.
In relation to staying the execution of Maripe’s orders, Rannowane says the matter raises exceptional circumstances which justify approaching the CoA.
He says there are two overarching things to consider to stay the execution of a judgment pending final determination of an appeal, namely: the balance of convenience and appellant’s prospects of success.
Rannowane reiterated that judge Maripe’s judgment and orders are indefensible. Moreover, he says while an expedited appeal would normally ameliorate any prejudice of the order appealed against is executable pending the appeal, in the unique and unusual circumstances of this case, an expedited appeal alone would not be enough to prevent the irreparable harm and prejudice administration of justice would suffer.