Court suspends jail-stay for P2m defaulter, orders payment

Mpho Mokwape | Friday November 9, 2018 12:40

 

Matshidiso Tiro who fought that she was a shareholder in Illala Holdings escaped jail this week when Justice Zein Kebonang suspended it for seven days to comply with the order.

She had filed an application trying to stay a judgement that ordered that she pay P2m back to the respondents that included the latter companies, ex-husband and Barclays Bank Botswana.

In the ruling, Justice Kebonang ordered that the stay application was dismissed with costs.

“The applicant is held to be in contempt of the order by Godfrey Radijeng and is committed to prison, for a period of 30 days, suspended for seven days, to enable her to comply and she is ordered to pay the cost of the contempt application on an attorney-client scale,” Kebonang said.

Before his ruling,Kebonang  had explained that by a consent order of December 29, 2017, Tiro had bound herself to pay back the P2m to the respondents in the event that her main application did not succeed.

He said the main application did not succeed, therefore she did not have any court order authorising her to retain the funds.

“Court orders are to be obeyed. In the instant case, the applicant has chosen to ignore a court order. There can be no greater contempt than that. Her conduct undermines the entire judicial system and is tantamount to self-help. I find her to be in wilful disobedience. In this regard, a case for contempt has been made out,” he said.

The background of the matter is that Tiro, who was at some point the wife to Eloma Tiro, one of the respondents, had a dispute during divorce proceedings about the Illala Company that was owned by the husband at the time.

She had instituted court proceedings in 2017 asking for the acquisition of her shares and payment in return.

As a result pending the determination of the application she made, the parties appeared before Justice Radijeng on December 29, 2017 where a detailed consent order was made and amongst the orders she was to get the P2m payment returnable after determination of the application.

However, on June 2018, the court determined the main application and held that she was not a shareholder as she initially contested and was ordered to comply with the consent order and return the P2m.

Dissatisfied with the judgement, she lodged an appeal with the Court of Appeal (CoA) and filed a stay application with High Court.

According to court papers, in her notice of motion filed in support of the stay application, she sought a rule nisi calling upon the Respondents to appear and show cause why the matter should not be heard and why she should not be granted the order staying and suspending the execution of a judgement delivered by Justice Kebonang on June 5, 2018 pending the final end and determination of an appeal to the CoA against the judgement.

In the meantime, following the determination of the main application, the respondents having received no payment from her, filed contempt of court proceedings and sought orders.

Amongst the orders they sought was “ordering and directing the applicant to be in contempt of court, committing her to prison for a period of 30 days or such time as the court may consider appropriate”.

The respondents argued that although the stay application was filed on June 7, 2018, there were no attempts by her to have it heard.

They explained that it was only after the contempt proceedings were instituted that she brought the matter finally before court for adjudication.

Kebonang also took issue with “egregious and gratuitously insulting” comments made by Advocate Sidney Pilane for the applicant.

“Before issuing orders in respect of the two applications, I wish to comment on an unfortunate incident that occurred during the hearing of the two applications. In particular, I wish to make reference to egregious comments made by Advocate Pilane during oral submissions,” Kebonang said.

The judge further said these comments went something like this; “Judge don’t take this matter personally…Please exercise judicial restraint, remove yourself from the dispute…Let yourself be guided by the law. Let it be less about your views, but what the law says. This is a court of law…Forgive me but it troubles me. Does a judge have an interest in this matter? Why is he anxious and not prepared to allow time in the usual way”. While Kebonang said he accepted that attorneys may occasionally display anger or annoyance, he explained that is not a licence to abuse and disparage the court, or opposing litigants.

“Advocate Pilane provided no support for any of his assertions nor did he apologise to the court or withdraw the comments. His comments were intended to be offensive, scandalous and gratuitously insulting.”

In his view, effective advocacy could be achieved without offensive, mean-spirited and demeaning language towards the court and other attorneys.

“The perception that advocacy can be enhanced by personal attacks; overly aggressive conduct or confrontational tactics is misplaced.

Such tactics in my view, are not a mark of strength. They merely erode the credibility of the Advocate and demean the legal system and those who serve in it.” 

Kebonang said court outcomes must never be a product of an assault on the presiding judge or sniping. Rather they must be a product of sound arguments. Intemperate statements are merely counter-productive because they do not persuade a court, Kebonang said.