Khama not budging on judges
Mpho Mokwape | Friday September 18, 2015 15:36
The suspended judges, Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang recently filed an urgent application to interdict the sitting of the tribunal. They also want their suspensions set aside.
Khama’s affidavit reads; “I am advised and believe that the applicants’ application as it stands is misconceived in so far as it is based on the enormous assumption that my decision is reviewable. To the contrary the applicants have not demonstrated the existence of the sound prospects for my decision being set aside at the envisaged review.”
Khama explained that the advice he was given regarding the suspension of the four was that it was not susceptible to review by the court. If the court finds that it is indeed reviewable, Khama argues that he used his discretion to suspend the applicants.
“I have a discretion under the constitution to suspend the applicants pending finalisation of the investigations to be carried out by the Tribunal which I have set up in terms of the provisions of the constitution. As far as the discretion in me is concerned, I submit that I exercised that discretion duly, properly and lawfully therefore the courts should dismiss the application,” reads the affidavit.
On the urgency, Khama said the matter ought to be dismissed as it was not urgent and also that on the letter of suspension the applicants were informed when it would effect, which was September 1, 2015.
He said the applicants had sufficient notice not only on the decision to suspend them, but also as to when the decision would be implemented and that he was surprised that the applicants are seeking a stay of events that have already occurred when they had the opportunity to do so before the said date.
“The urgency being asserted by the applicants neither exists nor has it been established and it has not been supported by the averments related to the alleged damage to the reputations of the applicants. With regard to the rest of the contents of the founding affidavit and the supplementary one, they primarily contain legal arguments, opinions and the legal conclusions and they are flawed, therefore I am not under any obligation to engage in such arguments.”
Khama also disputed that his decision to suspend the judges undermined judicial independence, the right to equal protection before the law and the freedom of expression as well as interfering with the applicants’ claimed right to work.
He denied that the applicants’ right to be heard was curtailed pointing out that they will be afforded an opportunity at the tribunal and dismissed the claim raised by Justices Godfrey Nthomiwa and Gaolapelwe Ketlogetswe who had joined in support of the four judges.
“I have also read the affidavits of Justices Nthomiwa and Ketlogetswe and the claims contained in them are extremely surprising and that the matters they discuss are not in my knowledge. Chief Justice is in a better position to respond,” said Khama.The duo had deposed confirmatory affidavits in support of their suspended colleagues and had confirmed that it was not unusual for government employees to be overpaid salaries and/or allowances.
Meanwhile the four in their founding affidavits had stated that the President’s decision to suspend them and appoint the tribunal to investigate their conduct was unconstitutional, unlawful and invalid.
Dingake said the decisions were taken without prior notice or warning that criticism of or complaints against the CJ, and failure to notice an administrative overpayment, could lead to suspension and possible removal. It therefore violates the rule of law.