‘I admit Ngakaagae was given a torrid time’
Mpho Mokwape | Monday August 7, 2023 06:00
Attorney John Carr-Hartley admitted that the Justices gave attorney Kgosietsile Ngakaagae a hard time during arguments on the matter but denied any allegations of bias exhibited against Infotrac.
Responding to allegations raised by Infotrac director Mompoloki Motshidi, Carr-Hartley said it seemed the director was not familiar with court and how it operates. He emphasised that even though it was true that Judge President Tebogo Tau, Justices Lakhvinder Singh Walia and Johan Froneman gave Ngakaagae a tough time it was not unusual for that to happen during court proceedings.
“Notwithstanding the fact that attorney Ngakaagae may have been given a hard time by their Lordships and Her Ladyship, I aver that attorney Ngakaagae was given the opportunity to present the applicant’s argument in full and there was no interjection or questions by the panel of judges which would either objectively or subjectively constitute undue interference,” he said.
Carr-Hartley argued that the fact that Ngakaagae has not given a confirmatory affidavit in support of the averments made was telling. He explained that it appeared that the director was not familiar with CoA and how it operates because it was absolutely not unusual for one of the attorneys or counsel in the appeal to be given a tough time particularly in the event that at first sight the relevant party’s case was not strong.
“I have personally been subjected to tough questions from Justices of the CoA including Justice Walia when they were not of the view that the case that I was seeking to present was not strong,” he argued.
Carr-Hartley further argued that it was also not uncommon for a judge or judges to interject during the course of questions and answers and that as a result although Justices may have given Ngakaagae a tough time, there was nothing untoward; it was simply how the CoA works. In his arguments he denied any insinuation of there being anything untoward in the way that the Justices treated Ngakaagae and said that in the absence of a supporting affidavit by him (Ngakaagae). He pointed out that though he does not recall how many questions were put to him during his submissions, they were substantially more than five. “I also admit that I was able to answer the questions posed by the justices. I aver that the reason that I was able to answer those questions and I could refer them to relevant documents in the record which supported the position and the answer to the questions posed,” Carr-Hartley said.
Allegations of bias and recusal of the panel
Carr-Hartley has denied that Justice Walia exhibited any bias as alleged by Infotrac. He explained that it was not true that Justice Walia openly exhibited a difference in treatment of both counsels arguing that averments made by Motshidi were pure supposition. “I deny that His Lordship Walia exhibited any bias and I note that no allegations are made against her Ladyship Tau or His Lordship Froneman even though they equally gave attorney Ngakaagae a tough time. Again, I state that it is uncommon for a judge to interject during the course of questions and answers. An attorney or counsel must be prepared,” he noted. On recusal, the Debswana attorney submitted that there was no basis for the recusal of Justice Walia more so the recusal of the entire panel of judges. He argued that there was simply no basis for Motshidi to say that Judge Walia “would have already made his contributions to the judgment envisaged in the appeal” as it demonstrated his lack of knowledge of how the appeal process works.
“In most appeals, except where there is a majority judgement and a minority judgement, one judge writes the judgement, and the others simply record their agreement to the judgement,” he said. Carr-Hartley said it was evident that the applicants believes that it will be unsuccessful in the appeal, that it was the only reason why the applicant brought the application for recusal which once again was an act of desperation.
He noted that had Ngakaagae had any grounds for a real concern during the hearing of the appeal, he would have sought the recusal of any judge(s) at the hearing of the appeal which he did not. “In addition, the absence of a supporting affidavit by Ngakaagae together with his social media post distancing himself from the applicant’s complaint and coupled with his refusal to ‘continue with the matter’ is evidence that he did not believe that there was any basis or ground for recusal of Judge Walia or nay of the judges,” he said. The attorney argued that Motshidi has not set out cogent reasonable grounds for the recusal of any of the judges.
Allegations of improper relationship and permission from CJ
Carr-Hartley said that Theresa Walia, the wife to Justice Walia, is his secretary and that she has been for many years and that when Justice Walia ascended to the bench, permission was sought from the then Chief Justice for Mrs Walia to remain as his secretary. He explained that such permission was granted and that his relationship with Justice Walia was purely professional. “I take great exception to the insinuation that there is an improper relationship between myself and Judge Walia and that I further take great exception to the insinuation that Theresa would discuss any matter with Judge Walia,” he interjected.
Failure to disclose
Carr-Hartley although admitting that Justice Walia was his partner at Armstrongs says it was more than 22 years ago and that statements made by Motshidi smack of desperation on his part. He said Justice Walia ascended to the bench in 2001 more than 22 years ago and as a result he has not been his partner nor involved in Armstrongs for more than those years and that the fact that Theresa being his secretary has absolutely no bearing on the outcome of the matter. Carr-Hartley pointed out that in addition he has been involved in a number of appeals which have been presided over by Justice Walia of which some he has won and some he has lost. “To suggest that Judge Walia would manipulate a judgement because Mrs Walia is my secretary is pure perversion. It is perversion of the worst kind,” he said.
He explained that he has worked on the case even without involving Walia’s wife and that he was even doing the typing so that there was no way Theresa had information about the case or even passed it to her husband Justice Walia.