Khama appeals Tafa judgement
Oarabile Mosikare | Thursday February 23, 2017 18:00
However, it is still unclear how the appeal will be heard as the effect of Tafa’s judgement has been to suspend the CoA.
Legal experts yesterday said Judge President Ian Kirby, the only CoA judge unaffected by Tafa’s judgement, could not hear the case as he is a member of the second appellant in the matter, the Judicial Services Commission(JSC).
In his judgement, Tafa ruled that the appointment of Isaac Lesetedi, Monametsi Gaongalelwe, John Foxcroft, John Cameron, Arthur Hamilton and Craig Howie was invalid in that the President had no right to reappoint them to the bench.
The judgement followed a challenge by the Johnson Motshwarakgole’s led National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCGPWU) against President Ian Khama on his appointment of the CoA judges.
The Union argued that no Judge should be reappointed after a fixed term.
Yesterday, in the appeal filed by Matlhogonolo Phuthego, the appellants, President Ian Khama, the JSC, the Speaker of the National Assembly and the Attorney General, argue that “the appointment of a Justice of Appeal for more than one three-year fixed-term contract is inconsistent with the Constitution”.
Phuthego wants the appeal to be upheld and the Union’s application be dismissed with costs, including costs of the two Counsel as well as the costs of the appeal.
“Part of the judgement complained of is that motivating and deciding that (a) Section 4 of the CoA Act is constitutionally invalid and therefore struck down; (b) the appointment of Justices of Appeal on more than one fixed-term contracts of three-year terms is unconstitutional; and (c) the appointment of sixth to 11th respondents is constitutionally invalid,” read the appellants’ notice and grounds of appeal.
The appellants say Tafa erred in failing to recognise that by Act 44 of 1972, Parliament authorised the President to appoint four Justices of Appeal.
This is in addition to those provided for under the Constitution, which authority was never withdrawn, but was expanded by Act 39 of 1980, which introduced the present Section 4 of the CoA Act. “The court a quo erred in not interpreting Section 101 (1) (II) in its historical and current context, and not applying the presumption in favour of constitutionally – the practice of employing older Justices in repeated contracts (some until into their eighties, depending on health) has been applied for over 50 years without challenge and with no apparent prejudice,” appellants say.
They continue: “The court a quo erred in differentiating a subsequent three-year contract from the initial one, as being destructive of Judicial independence, since any perceived hopes or sense of obligation on the part of a Judge would be equally present in a Judge who, after reaching 70, seeks to be appointed on the initial contract.
If such a contract is specifically authorised, as it is, by the Constitution itself, and it’s therefore unobjectionable, then subsequent contracts would be no different.”
They also say Tafa erred in not appreciating that no single provision of the Constitution is to be considered in isolation. Rather, all related provisions are to be brought together and construed so as to achieve the great purposes of the instrument.
“The court a quo erred in failing to analyse and deal with the counter-arguments of the appellants, and in dealing only with the arguments of the respondent (the applicant in the court below) in reaching its decision.” The other respondents are the six CoA judges.
It is understood that Tafa is scheduled to hear an application for a stay of execution soon. Yesterday evening, Union lawyer, Mboki Chilisa said the appeal would be 'rigorously challenged'.