Infotrac's ploy to scandalise, influence Court
Mpho Mokwape | Monday September 25, 2023 06:00
CoA Justices, President Tebogo Tau, Lakhvinder Singh Walia and Johan Froneman said Infotrac laid complaints with the Chief Justice (CJ), Terence Rannowane and the Directorate on Corruption and Economic Crime (DCEC) before bringing the recusal application.
The accusation comes after Infotrac filed a recusal application of Justice Lakhvinder Walia who was accused of biasness following the appeal arguments.
Infotrac wanted the judges, especially Justice Walia, to recuse himself from the case after there was a heated exchange of words between Justice Walia and Infotrac former lawyer, Kgosietsile Ngakaagae. On Wednesday this week, the judges dismissed the application saying it was without merit. Justice Froneman explained that by Infotrac bringing the recusal application after laying a complaint with the CJ and the DCEC,in in fact, tried to preclude them from making a decision about the appeal.
“It remains to deal with the ground that because Infotrac laid complaints with the CJ and the DCEC before bringing this application for our recusal, we are now ‘opponents in a formal administrative complaint and the report to the DCEC and thus precluded from determining the appeal,” he said. Justice Froneman said it was an extraordinary proposition pointing out that the complaint and report may well amount to criminal contempt of court for intentionally attempting to influence the outcome of the appeal.
He also said the content of the complaint may also amount to contempt of scandalising the court. He explained that what the proposition amounts to was that a litigant may manufacture or create a supposed complaint to another body before following the proper procedure of applying for the recusal of the judges hearing an appeal and then use its own procedural impropriety as a ground for their recusal. “To put it mildly, that cannot be. Before bringing this recusal application, Infotrac in person of Mompoloki Motshidi delivered a complaint to office of the CJ asking the appeal proceedings as a whole to be declared a nullity,” he said.
The judge noted that the CJ refused to entertain the complaint on the basis that he had no competence to interfer in a matter that was still before court as the complaint was replete with wild accusations against Justice Walia, his wife and the President of the CoA. He explained that it is recorded in the complaint that only after the appeal did Motshidi discover that the correspondence received in the litigation from Debswana’s attorney, Armstrongs, and Infotrac was indeed from Justice Walia’s wife.
Justice Froneman emphasised that it meant, according to the complaint, that it would be reasonable for any ordinary person to believe that Justice Walia would have access to and was privy to all material matters relating to the case even before it reached the CoA. He pointed that not only did Motshidi lodge the complaint with the CJ before bringing the application for their recusal, he also addressed a request for investigation to the DCEC and in it he reiterated the complaint made to the CJ and even attached a copy of the letter. “There is no explanation in Motshidi’s affidavits why he approached the CJ and the DCEC before launching the recusal application.
He does not state that he consulted his attorney before doing so, only that on July 25, 2023 he sought legal advice from him on the remedy to be explored, given that the CJ’s letter refusing to deal with the complaint provided no remedy,” Justice Froneman said. He explained that in order to deal with biasness, the first reasonable requirement of the principles applicable to recusals of judicial officers was that the alleged perception of reasonable bias must be determined from the objective perspective of a reasonable person or 'informed observer’ and not from the subjective perspective of the party asking for recusal. The judge said an informed observer would not have attempted to influence the outcome of a pending appeal especially after the hearing of the appeal in open court, by approaching institutions other than the court itself in an effort to thwart the outcome of the appeal.
“And he would not have made the outrageous and scandalous accusations based on speculation and gossip as both actions come dangerously close to if not actually constituting contempt of court,” he said. Further, he noted that the informed observer would also have been aware that the supposed apprehension of bias arising from Justice Walia’s historic relationship with his firm, Armstrongs and in particular John Carr-Hartley, had authoritatively been laid to rest by the same court in another judgement.
On the alleged exchange, the judge noted that an informed observer of the Botswana CoA would know that vigorous and sometimes robust debate and interaction between the bench and counsel was the very stuff of an appeal hearing as is the case in many other jurisdictions. “Of course that does not justify rude and unfair treatment of counsel but neither does it prevent searching questioning of counsel’s arguments from the bench and for counsel to react appropriately thereto,” said the judge. Meanwhile, the judge said the complaint about the alleged involvement of Justice Walia’s wife similarly is devoid of any merit as an informed observer would have been aware that she has been working as a secretary for Carr-Hartley at Armstrongs for some time. He explained that the reasons advanced in the founding affidavit of her likely being involved in sharing knowledge of the case with her husband beforehand and during the pandemic is simply far-fetched and ridiculous.
“To argue that her affidavit setting the record straight in answer to the speculative assertions now makes her a witness to the appeal case simply adds salt to injury. She was not involved in the appeal at all,” Justice Froneman lamented. Justice Froneman further mentioned that it was because of Infotrac’s ridiculous allegations that she was forced to depose to an affidavit in the recusal application and has manufactured a so-called further conflict of interest. In conclusion, Justice Froneman noted that the objection to Carr-Hartley’s affidavit was on a similar footing as Infotrac directly implicated him in its founding papers and that he expressly explained that as the reason for his affidavit.
“No one from Debswana could answer to these allegations. To suggest in the face of a power of attorney to act for Debswana and a notice of opposition that he was doing it as an impropriate frolic of his own cannot withstand scrutiny,” he said. Meanwhile, the main appeal from the High Court that gave rise to the recusal application was heard on July 10, 2023 and judgement was expected to be delivered on August 4 until Infotrac on July 31, launched an application for the recusal of all three members of the CoA.
The application was heard on August 3 which meant the main appeal judgement was automatically postponed. In the grounds of appeal, Infotrac said one member of the bench being Justice Walia was so intemperate in his questioning to the company's lawyer that it gave legal rise to a reasonable bias on their part. The court papers further outlined that the relationship between Justice Walia and Debswana's legal representative Carr-Hartley created a similar apprehension for bias, that Justice Walia failed to disclose facts to the court , that because of formal complaints laid to the CJ and the DCEC, the matter had become a dispute between the judges and Infotrac.