BOPEU applies for Justice Solo to recuse himself
Lebogang Mosikare | Wednesday September 23, 2015 18:00
The applicant in the matter is Levi Holonga who used to work as an airport operations officer while CAAB and its director of airport operations, Justice Masole, are cited as the first and second respondents respectively. The union is funding Holonga’s litigation, while Thabiso Olatotse is the CAAB attorney.
In his notice of motion, the applicant’s attorney, Otto Itumeleng, said that the matter should be stayed pending “verification of loyalty and apology allegations” attributed to Solo. He prayed with the court to grant them alternative relief. Holonga said that the basis upon which the application is premised is that he came across newspaper articles in the Sunday Standard entitled Secret Documents Raise Questions about Botswana’s Independence of the Judiciary and another entitled Botswana’s Judiciary Loses its Halo Effect.
“There are developments which occurred between the time this matter was set down for hearing and the actual date scheduled for hearing…I was not aware of the developments that I have stated above, as some of the information surfaced as late as September 21, 2015 in the evening when the attorney was on his way to Francistown for purposes of dealing with arguments in the matter on the date set for arguments,” said Holonga in his overview of the matter. He said that upon perusal of the articles he noted with concern an allegation that had been attributed to Solo.
“The said allegation is to the effect that his Lordship signed a petition for the impeachment of the Chief Justice Maruping Dibotelo together with 11 other judges which petition was allegedly delivered to the Judicial Service Commission for consideration,” said Holonga.
He added that it is further alleged in the quoted articles that, “his Lordship Solo has since withdrawn his signature from the aforesaid petition”.
“Although I don’t find anything wrong with the allegation that his Lordship (Solo) has withdrawn his signature from the aforesaid petition, I am greatly concerned by the alleged contents of the withdrawal letter, which has been attributed to his Lordship.
“At this stage I am not in a position to confirm the correctness or otherwise of the contents and letter of withdrawal. However, the allegations that his Lordship (Solo) has stated in the withdrawal letter that he declared his undying loyalty to both Dibotelo and appointing authority, President Ian Khama who allegedly stood for his appointment when he (Solo) was in moment of despair,” said Holonga.
Holonga continued: “These allegations if proved to be correct will definitely compromise the standing of his Lordship (Solo) as an impartial adjudicator in cases where the appointing authority who is also the head of the executive, has an interest, as the case in the present matter were I am suing CAAB.”
Holonga added that he understands that there are three arms of government being the Executive, Legislature and the Judiciary.
“I further understand that this means that the three arms of government are regulated by and subject to the doctrine of separation of powers and that they provide checks and balances to each other,” said the applicant.
Further, Holonga said it would be a grave encroachment therefore if the aforesaid allegations attributed to Solo are correct that the judiciary or part thereof finds itself obliged to be loyal to the other arms of government especially the executive which may lead to biasness when it deals with matters were the other arms have an interest. “It is further alarming that there is an allegation attributed to his Lordship (Solo) that he was at some point in a moment of despair and his Lordship (Dibotelo) and the appointing authority stood by him. The aforesaid allegation unsettles me as it has the potential to suggest that the alleged declaration of loyalty is quid pro quo (trade off) arrangement,” said Holonga.
The executive, Holonga said, has an interest in his matter for the reasons already alluded and is of the view that despite the allegations attributed to Solo still being investigated further, with the assistance of the Botswana Public Employees Union, his matter may not be afforded the impartiality and justice it deserves.
He stated that at the time he was deposing his affidavit, he had not received any contradictory information to the articles stated nor had there been any assurances from the judiciary.
“I note that the president of BOPEU Andrew Motsamai addressed a press conference on September 21, 2015 commenting on the consequences of the said allegations attributed to his Lordship (Solo), that they have the effect of compromising cases leading to miscarriage of justice if they are found to be correct,” Holonga noted. He buttressed that the aforesaid press conference was held on its own and may disadvantage him on the basis that he shares the same sentiments thereof and that it is common cause that BOPEU, who held the press conference, are financing his litigation.
“I aver that his Lordship may not have a sober mind or be impartial in dealing with matters where the appointing authority in his various capacities especially as head of the executive has an interest as in the present matter. I aver that his Lordship’s mind may have already been clouded with respect to the outcome of my matter in favour of the executive and its enterprises,” said Holonga.
“…I should not be understood to be saying that his Lordship is biased in this matter, but that I do not expect him to be impartial should it later surface that the allegations of loyalty attributed to him are correct,” said Holonga.
Giving his order at the end of the mention, Solo said that having perused Holonga’s application, he felt that it contained prima facie defamatory statement about him.
“The matter should be reported to the registrar of High Court in Gaborone. Secondly I express my desire to explore my legal options in light of the prima facie defamatory statement made for my recusal,” said Solo.
The matter was adjourned to November 24 for status report.