'You can't judge us'
Mpho Mokwape | Friday July 22, 2016 18:00
The judges, Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang yesterday filed a recusal application against Justices Singh Walia, Leatile Dambe and Zibani Makhwade on grounds that the panel have been biased in dealing with their matter and that they will not be afforded a fair hearing.
The panel had earlier in April dismissed the quartet’s application in which they sought to be furnished with the necessary documents crucial for their pending review application from among others the President and Registrar and Master of the High Court.
Through their attorney Thuto Pepsi, the quartet want the panel to give way for a different panel to hear their leave to appeal application, which was filed on July 6 and was to be heard yesterday.
“We believe that the judges have been biased in dealing with our clients’ matter and we want them to recuse themselves in this matter. We believe that it would only be fair because they had already heard the first application which they dismissed and we believed that they had already prejudged it,” she said.
However this did not sit well with the panel of judges who for a while insisted that they would not recuse themselves but would hear both applications simultaneously.
After much consideration the panel allowed the attorneys from both parties to meet to discuss a way forward and following a consent agreement application for recusal, which will now be heard on September 22.
Walia then made orders among others, postponing the leave to appeal application, to pave way for the recusal application to be heard first.
He indicated that both parties should obey the orders and file all the necessary documents before the hearing.
“Today’s application for leave to appeal is hereby postponed to a later date and we will hear the recusal application, only after that, that’s when the leave to appeal application will be heard, after we decide to recuse ourselves or not,” he said.
Meanwhile, in their filing notice for recusal, the judges insist that they took the decision after much consideration and discussion and that it was not taken capriciously.
In Letsididi’s founding affidavit he argued that the recusal application was not an indictment on the judicial profession at large but an attempt to bring to light some concerns, which any litigant was entitled to highlight.
He maintained that the main application was inherently precedent setting, even if one was to ignore the stature of the parties on either side, as it called on members of the judiciary to evaluate and adjudicate upon issues which have a personal impact on their colleagues.
“Having served the Republic on the bench for a number of years, I am alive to the sensitivities attending an application of this nature. However the fact that such sensitivities subsist, ought not to bar a litigant from securing a fair hearing,” he said.
Letsididi further explained that despite having long had serious concerns about the impartiality of the courts and its ability to dispassionately deal with the matter, they decided to take the decision to leave the matter as it stood.
He said he is however mindful that the courts would not lightly attribute bias to a judicial officer without a more concrete and objective basis, until a receipt of a letter dated July 13, 2016 from the Registrar of the High Court.
“There are a number of issues which are problematic about the correspondence. It illustrates bias, a blurring of official duties and a total disregard of our rights at law as applicants,” he argued.
Letsididi said it was clear that the Registrar who is cited in the proceedings was conflicted since he was a party to the proceedings and yet he was clearly in communication with the justices and carrying instructions on their behalf related to the same matter.
He noted that the Registrar and the panel of judges have been in discussions about the matter in the absence of the applicants and the other respondents regarding the propriety of their actions and conduct.
Moreover he submitted that it was clear that the judges had already formed a view that they are delaying the matter as the letter suggested the filing notice to strike out the answering affidavit was a delay tactic.
“Therefore we believe that the judges have prejudged the application to strike out same as a delay before we have even been given an opportunity to be heard. The judges have on various occasions shown themselves to be partial and displayed unwarranted impatience with our attorney and are biased against us,” he said.