Motshwarakgole takes a pot shot at Kirby
Oarabile Mosikare | Friday February 24, 2017 17:37
The national organising secretary of National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCGPWU), Johnson Motshwarakgole said this in a replying affidavit. He was responding to the acting AG Morulaganyi Chamme’s founding application in which he said the application is urgent that the operations of the orders of the High Court be stayed so that the CoA continues to operate in the public interest pending the intended appeal. Last week, Tafa invalidated the appointment of six CoA judges.
“Furthermore, it does not appear to be possible to constitute a CoA to determine the intended appeal. In this event an ostensibly temporary stay would permanently subvert the law as it has been determined to be by this Court. The appellants’ prospects of success on appeal are so poor that the application for the stay should be dismissed on this ground too,” Motshwarakgole argued. The fiery veteran Unionist said it would be wrong in principle for the Justices concerned to determine future appeal cases as if unaware of the very real doubt as to the validity of their appointments.
He continued: “Even if the judgement should not be stayed, it will be quite possible for the CoA to continue to carry out its ordinary functions. Subject to what is stated below in respect of the Appellants’ pending appeal, Kirby JP is not precluded by the judgement from continuing to carry out the duties of his office.
There is no reason why he should not be in a position to empanel a CoA, of either three or five judges as required, to determine pending appeals. Section 99(2) of the Constitution provides that the Chief Justice and the other judges of the High Court are judges of the Court of Appeal too and any of them can be called upon to sit in appeals.”
He said it may well be that, if the Chief Justice and/or a few other Judges of the High Court are selected by Kirby to serve on the CoA, the remaining Judges of the High Court can satisfactorily manage the work of the High Court. But if that should not be the case, there is no reason why acting Judges of the High Court should not be appointed. This is in terms of Section 99(5) of the Constitution to attend to what would otherwise be the duties of the Judges appointed to hear appeals.
He also argued that two pending judgements in respect of cases brought in the normal course do not justify allowing Justices of Appeal whose appointment is of doubtful validity to continue serving as such. “In 2015, four Judges of the High Court, each with approximately 400 cases that they were case managing, were suspended following an exchange with the Chief Justice.
At the time of their suspension, they had several judgements pending, and several part-heard trials and yet these were not considered to justify not suspending the Judges. Why should a different approach be adopted in this case?
Motshwarakgole said for the preservation of the integrity of the Judiciary, Justices of Appeal who are employed on a fixed-term that has been renewed should not sit until their matter is concluded. In the premise, he asked that the application be dismissed with costs, including costs of Counsel.