Attorney General 'fears' imprisonment
Mpho Mokwape | Tuesday May 30, 2023 06:00
Keetshabe, who was on May 11, 2023 held in contempt of court by Lobatse High Court judge Ranier Busang, on Friday sought court intervention for urgent stay of contempt orders fearing that he was at risk of being imprisoned pending appeal.
“By virtue of the judgment I am at risk of being imprisoned for contempt despite being that I was never personally served with contempt application though it was served at AG’s chambers,” he said.
The contempt of court was due to a default judgment granted on June 7, 2021 done in favour of one Mmoloki Masole who has a legal battle with Directorate of Public Service Management (DPSM) for scarce skill allowance and the AG was cited in the matter as first respondent. DPSM failed to honour the judgment orders resulting in the AG being found in contempt of court by virtue of representation in the matter. The AG argues he cannot be held in contempt of court as he was not directly sued.
Both AG and DPSM reportedly tried in vain to rescind the 2021 judgment 23 months after it was issued. In his founding affidavit, Keetshabe approached court on urgency seeking for stay of the judgment pending appeal at the Court of Appeal. He explained that his contempt was wrong in law as he was not party to the proceedings and that the judgment was only against him in a representation capacity.
Keetshabe added he is seeking urgent stay since the judgment declared that he was in contempt notwithstanding that he was not sued in his personal capacity. “With greatest respect to the learned judge, I believe it is wrong in law to render a person who was not party to legal proceedings in his capacity and who was not personally served with contempt of court liable to imprisonment,” he said.
Keetshabe said he was aggrieved by the judgment insofar as he is concerned as his role was clearly stated in the Constitution to be that of a legal advisor to the government and cannot whether or not to pay the person. He emphasised that his responsibility is limited to advising and guiding the relevant ministry or public officer and for that reason he was not empowered or competent to enforce the judgment or comply with it more so that the person (Masole) was not stationed at the AG's chambers.
“Despite all this I am at risk of being imprisoned and to compound matters the judgment states that it must be fully complied with within seven days from May 11, 2023,” Keetshabe pointed out. In response to Keetshabe's urgent application for stay of judgment and his fear for imprisonment, Masole's attorney Uyapo Ndadi argued that AG misinterpreted the orders.
Ndadi explained that there were no orders that stated that the AG or any other person be imprisoned. “The applicant’s reason for urgency is that the AG is at risk of being imprisoned which respectfully is a complete misinterpretation of the court order.
There is no order that says AG or any other person be imprisoned. AG has been given a second lease of life to comply with the orders,” he said. Ndadi further noted that the threat of prison was currently not there that only failure by the AG to comply within seven days can an application be made to commit him to prison.
The attorney submitted that the orders AG was seeking was incompetent in that he sought to stay the orders granted on June 7,2021 which was 23 months after it was granted.
“The applicant sat on their rights and failed to exercise their rights to stay the orders of June 7, 2021 when they became aware of it and now seeks to circumvent the proper procedure by filing stay on urgency, the court ought to take judicial notice and mark its displeasure with appropriate order as to costs,” he said.
He also argued that the urgency being sought on stay was self created and that the rescission application being dismissed meant that there was nothing to stay in that regard. AG was represented by Vergeer Law and judgment has been reserved for July 24,2023.