Basupi gets reprieve over JSC
Lebogang Mosikare | Friday December 20, 2019 13:36
According to the reasons advanced by Justice Mercy Garekwe, the relief sought by the Applicant (JSC) was premised on the following averments: a judgement of Justice Leatile Dambe (as she then was) that was placed before the Respondent for his consideration.
The judgement, Garekwe added, stemmed from a civil action against Basupi by one Dumi Serole who alleged that, whilst being a Magistrate in the past, the Respondent unlawfully detained him.
In her judgement, Dambe made a finding that Basupi unlawfully violated Section 5 of the Constitution.
“The court further found the Respondent to have abused his office. In the result, the Respondent was ordered to pay Serole P40, 000 and the judgement was furnished to the JSC for its consideration.
It is alleged in the founding affidavit that the rationale for referring the judgement to the JSC was on account of the findings that were made against the Respondent, which findings have serious implications for the integrity and honourability of the judiciary….” said Garekwe.
Upon considering Dambe’s judgement, the JSC called Basupi to show cause within seven days of the letter written by it, why a recommendation should not be made to the President of the Republic of Botswana, Mokgweetsi Masisi, for disciplinary action based on his (Basupi) lying under oath and abusing office, Garekwe said further.
“The show-cause-letter was dated November 29, 2018. The Respondent on December 10, 2018 sought deferment of the matter indicating his intention to appeal Dambe’s judgement, which the Applicant acceded to… . The Court of Appeal through its decision of August 21, 2019, refused to grant the Respondent leave to appeal out of time. Following such a decision and on August 26, 2019, Respondent was once again called by the Applicant to show cause why he should not be referred to the President for disciplinary action,” said Garekwe.
The Respondent, Garekwe added, made representations through his letter dated August 26 and September 3, 2019 respectively.
“Upon consideration of the Respondent’s representations, Applicant considered the same unsatisfactory and determined that the Respondent be sanctioned. The decision was communicated to the Respondent on September 12, 2019 and Respondent elected not to make any further recommendations though given the opportunity to do so by the Applicant. Instead, Respondent launched an urgent application seeking an interim restraining order against the Applicant from proceeding with its intended recommendation to the President pending the filing and determination of an intended review application,” said Garekwe.
Justice Mothobi, before whom the urgent application was brought, did grant a temporary order on November 29, 2019, seeking amongst others, restraining the Applicant from making the intended referral to the President, said Garekwe.
She added: “The Respondent was further ordered to file his intended review application within 30 days from October 7, 2019. This present application was filed on October 18, 2019, that is, the return date of November 29, 2019 before the expiration of 30 days within which the Respondent was to file the review application…”On urgency, Garekwe noted, the Applicant averred that the Respondent had not filed his intended review and if he did, it would be heard on the ordinary course and may take months and even years to be determined.“In terms of this application, it was clear that the Applicant was seeking a final order. The application was opposed with the Respondent filing points in limine to amongst others: pray that the application is incompetent as the subject matter of these proceedings is still pending before Mothobi,” said Garekwe…
She went on: “For the Applicant to seek to question or chastise the Respondent for not having filed the review application immediately upon issuance of the temporary order is devoid of logic. The Applicant totally disregarded the Court Order of October 7, 2019, to the point of at the very least seeking to await the return date, and only act thereafter, if the dictates of the matter warranted them to act in the manner they had sought to act…”
The other factor that the Applicant relied upon for urgency, Mothobi explained, which point is in actual fact unmeritorious, is the contention that the intended review proceedings by their nature would seek to have the decision of the JSC that lead to the final decision against the Respondent set aside.
“Appreciating the import of the intended review application and this court through Justice Mothobi having granted the Respondent the opportunity to file such review application, it baffles me why the Applicant expects the very same court that has given such dispensation to ignore its order and make and order in separate proceedings whose import is to circumvent the process it has already sanctioned…” she said.
Garekwe added: “There is also a blanket reference to how judicial officers should conduct themselves.
These are factors that ought to be understood by everyone. It is a result of what is deemed unbecoming conduct of the Respondent that the JSC embarked on its enquiries and made decisions that potentially will lead to the dismissal of the Respondent from work.
The JSC’s decisions therefore have far reaching consequences on the life of the Respondent in general and no judicial officer in his or her right thinking mind would lie supine and not seek to challenge those decision(s)”.
“The same way the JSC has a duty to execute in disciplining judicial officers, judicial officers have a right to defend themselves by every legal means possible… Had I granted the relief sought on October 29, 2019, declaring the proceedings before the JSC in relation to the Respondent valid, such order would have spelt doom to the urgent application before Mothobi.
Additionally, I would have pre-determined the review application before it was even conceived though the court had given the Respondent an opportunity to prosecute the review…” said Garekwe.
As such, Garekwe said, she found the application to be ill-conceived, not urgent but filed to seek to circumvent the intended review process that the Respondent intended to file and at the very least was given an interim order to file such a process.
“The Applicant could oppose the process before Mothobi and I believe it can adequately do so.
In the event the interim order was confirmed, the Applicant has to await the law to take its course as this case whatsoever has no bearing on the functions of the JSC in general, but challenges the Applicant decision(s) in relation to the Respondent only and not judicial officers in general.
If the JSC is confident in its processes, which I believe it is, I fail to understand its apprehension in awaiting the law to take its course, and why it and no one else, is of the view that its case with the Respondent hampers the performance of its functions in general.
In fact it does not, and the Applicant has failed to even indicate and show how it alleges it purportedly does,” said Garekwe.