CJ may have lied, withheld information - suspended judges
Mpho Mokwape | Friday April 1, 2016 16:10
The quartet, Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang, before a panel of three judges said that Dibotelo made certain untrue statements in his affidavit. Some of the claims include Dibotelo stating that he did not know about the final audit and that he made a verbal complaint to the police that the judges say may be far from the truth.
The interlocutory application that follows Dibotelo’s claims in his affidavit compels the CJ, the Judicial Service Commission and the President to produce specified documents crucial to their main application.
Through their attorney, Pepsi Thuto, the judges said, among other things, that the CJ could be deliberately withholding information on the final audit that he had authorised after he reported the quartet to the police.
She argued that the CJ could not have, in a normal sense, stated that he was not even aware the final audit he authorised, in relation to the judges, was not in his possession.
“For the CJ to blatantly say in his affidavit that he was not aware of the final audit is surprising. He was given a preliminary audit only for the four judges and the final audit should have been produced in relation to all of them.
We say we need that audit to see what it entails,” she said.
Thuto said for the CJ to have commissioned the preliminary audit against her clients and not followed through with the final audit on all judges smacks of witch-hunting.
“For him to even say in his affidavit that the matter was sensitive, yet making a verbal and unrecorded police statement, could not be true. A formal police statement should have been filed for investigations to be conducted to follow up his complaint about my clients,” she argued.
Further to build their case, the judges argued that they were entitled to all the documents that were considered by each decision-maker when making their respective decisions.
Thuto argued that it is her clients’ entitlement that they have access to the documents whether relevant to their case or not.
“Once the documents have been produced, it is for the applicants to decide which of them are relevant and will be included on record before court,” she argued, adding that all documents, letters or notes between the President and the JSC, including the minutes from their meetings, be relinquished.
She explained that her clients could not be denied access to documents on the basis of confidentiality.
On the court registrar furnishing them with records of proceedings, the quartet said it will bear the costs of the application.
Thuto explained that the registrar should not be the one who decides what is important to the judges.
“The registrar cannot simply ignore the High Court rules.
The rules relating to filing, inspection and copying of the records in review proceedings serve an important purpose.
They bestow a procedural right upon the applicants to inspect the full record of proceedings, filter out irrelevant documents and compile the record that will be placed before the court,” she said.
Yarona Sharp of the Attorney General Chambers said most of the documents that the judges were seeking had been produced.
She said for the judges to check if there were other judges fraudulently claiming the housing allowance was irrelevant.
On the issue of costs, Sharp said the judges were not entitled to them because the registrar was not joined into the proceedings. Also the judges did not make a notice to AG in the first place.
Judgment has been reserved for April 28.
Among other arguments in their review application, the judges want set aside the President’s decision to appoint a tribunal to investigate the applicants’ potential removal from judicial office. Further, the review seeks to have the President’s decision to suspend them be rescinded.
Meanwhile, the Law Society of Botswana, as an interested party, has indicated its wish to be part of the proceedings.