Justice Solo recuses himself from BOPEU case

Lebogang Mosikare | Thursday January 14, 2016 18:00

The second respondent is the Director of Airport, Justice Masole.

BOPEU vehemently insisted that Justice Solo recuse himself from the case.

A court order seen by this publication on Wednesday stated that the judge had decided to recuse himself after discussing the matter with Advocate Sidney Pilane SC who is representing the applicant.

In his arguments on Tuesday, Pilane said the application for Solo’s recusal dated back to last year. “The matters which have made it necessary to file these heads include: the order handed down by this court on 22 September 2015 particularly paragraph 1 thereof… and the outrage with which the court has (sic) previously reacted to this application.”

Pilane said that the court record showed that Justice Solo felt he had been defamed by the applicant (BOPEU) and was considering legal action against it, and therefore would not be suited to preside over the current matter.

“Your Lordship has assumed a position adversarial to the applicant. Your Lordship might soon bring a defamation action against the applicant arising in the context of this matter while at the same time sitting in the judgement over litigation in which the applicant is concerned. Objectively viewed, it must, I submit, be quite impossible for the applicant to be assured of your Lordship’s impartial adjudication of litigation in which he is concerned.”

Pilane stated that applications for recusal are commonplace and he has not been able to find one in which the Attorney General (AG) interfered on any basis. He added that as a member of the executive, the AG’s involvement on any behalf would worsen matters.

“In question in this application is the relationship your Lordship has with the head of the executive as appears from your Lordship’s letter received by the registrar on 3 September, 2015.”

In conclusion, Pilane submitted; “the letter that your Lordship expresses loyalty to President Ian Khama does not sit well with constitutional imperative of judicial independence generally, and especially in matters which come before the courts in which the executive or its sub-parts is concerned.”

Ndiye Balule from AG Chambers requested the matter to be postponed saying that he was not ready to proceed because he was served with the applicant’s supplementary head of argument in the morning.

However, Pilane said that if the AG wanted a postponement they should pay the costs of Monday’s application.

Balule quickly dismissed the demand saying that the AG should not be ordered to pay the costs because they were not party to the application but were invited by the judge as friends of the court. He added that the AG had the option of recusing itself from the matter. Attorney David Olatotse who is representing CAAB preferred a short adjournment instead of a postponement. Justice Solo then called the parties to his chambers.