Motumise appeals Khama judgment

Oarabile Mosikare | Tuesday March 15, 2016 15:29

 

The LSB and Motumise had sued Khama challenging his refusal to appoint Motumise, who had been recommended by the Commission. Motumise and the LSB argued that Khama acted irrationally by refusing to give reasons for his refusal.

However, a panel of judges ruled that the President had committed no reviewable wrong in making the decision.

According to papers filed in the appeal, the LSB and Motumise, through their lawyer Tshiamo Rantao say the High Court judges erred in rejecting the universally settled meaning of the words “acting in accordance with the advice of the Judicial Service Commission” in Section 96 (2), its history and its purpose.

The two also said the judges erred in failing to take guidance from foreign and local authorities, publications and reports which the appellants submitted to the court as providing an aid to the construction of Section 96 (2), in line with the provisions of Section 24 of the Interpretation Act.

The applicants argued that the court erred in failing to take guidance from The Report of the Presidential Commission on the Judiciary dated July 9, 1997 and The Report of the Bechuanaland Independence Conference dated February 15, 1966.

“Having properly accepted in paragraph 80 of the judgment that executive decisions made irrationally are reviewable, the court a quo erred in its findings in paragraphs 85 and 86 of the judgment that the first respondent was under no obligation to make any disclosure in so far as his decision was motivated by concerns of national security and policy or based on adverse information in relation to the second appellant…” argues Rantao in the papers. He says there were no facts before the court to establish whether the decision was in fact motivated by concerns of either national security and policy or information in relation to the person of Motumise.  Rantao also says the first respondent [Khama] did not provide any reasons for his refusal to implement the second respondent’s [JSC] “careful and considered recommendation” and that there were no documents generated by Khama or his office in the decision-making process. The lawyer also takes issue with the court finding that Khama was under no obligation to provide reasons for his decision.

“In relation to the JSC’s interviews being made public, the court a quo erred in failing to recognise the general rule in relation to the protection of the privacy of applicants who apply for high office, that they must accept that the public has a legitimate interest in their application unless there are reasons that justify secrecy, which in this case no such reasons were given.”

In relation to the disclosure of the outcome of the JSC’s deliberations on the appointment of judges, Rantao says the court erred in failing to give proper weight to the public interest in making the deliberations open to the public.

“The court a quo erred in its finding that the application was not brought in the public interest but in the interests of the second appellant in its reasoning for awarding costs against the appellants. This finding is contradicted by the court’s statement in paragraph 46 of the judgment that the issues raised in the application are of national and public interest and its acknowledgment in paragraph 84 of the judgment that the first respondent’s decision has generated public interest.”

The LSB and Motumise seek an order that the appeal is upheld. They also seek an order that the respondents are ordered to pay the costs of the appeal in the Court of Appeal and the costs in the High Court, including costs of two counsels.