Tafa dismisses Khama again
Tumelo Mouwane | Friday March 3, 2017 15:48
Tafa ruled in favour of National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCGPWU) that the current practice where Khama appoints Appeal Judges is unconstitutional, as powers to determine the number of CoA judges rests with Parliament.
He also found that the decision and practice where Khama has extended contracts of some Appeal Judges contravenes the Constitution and nullified it. Consequently, the appointment of six CoA Judges was nullified and ‘relevant authorities’ ordered to regularise the appointments within six months.
However, Tafa yesterday indicated that the orders were in relation to Justice Isaac Lesetedi and Stephen Gaongalelwe.
“What happened is that when the judgement was typed, the reporter re-arranged paragraphs so that they were split into two. I failed to notice the split hence the confusion and I take the responsibility for the mix-up,” he said. Justice Tafa said the risk of granting an order for stay when there is no certainty as to whether CoA could be convened is that the order of the stay may become final.
“This would be unjust and contrary to all notions of justice. This therefore diminishes in no small measure the applicants’ prospects to success. The possibility of the CoA not being able to convene owing to the fact that all the Justices thereof are conflicted is not farfetched as some may think,” he said.
Tafa further said there was a real risk that the CoA, as presently constituted is conflicted and that no Justice of the said court qualifies to convene for purposes of the appeal.
“Indeed, first respondents’ case was never about whether previous provisions of the CoA Act were compatible with the Constitution, but was concerned with whether Section 4 of the CoA Act as it currently stands, is compatible with Section 99 (2) of the Constitution. This ground too, has no prospects of success. The same goes for applicants’ ground of appeal, which refers to historical context.
He said the appeal relating to the renewability of contracts of Justices of Appeal was argued for the first time.
“I must say that the practice subsequent to the promulgation of the Constitution and the establishment of CoA is that Justices of Appeal were always employed on renewable contract.
He said the Constitution is not meant to only serve the current generation, but for future generations, arguing that its meaning can therefore not be perverted by unconstitutional practices that emerged subsequent to its promulgation.
Tafa said the applicants failed to grasp the issues that were before the court; the difference between prescribing the maximum number of Justices of Appeal, that is, setting a ceiling and appointing from time to time more Justices but within the set ceiling.
“The former cannot be a routine administrative duty. This is clear and Parliament recognised this difference when it prescribed the ceiling for High Court judges strictly in accordance with the provisions of the Constitution,” he said.
“The application is dismissed subject to the correction to the effect that Order 4 of the court orders of February 16, 2017 is, in respect of Justices Isaac Lesetedi and Stephen Gaongalelwe, suspended for six months.
As there has been divided success, the applicants are ordered to pay three quarters of the costs of this application. Such costs to include costs of senior counsel,” he said.