Judges mount appeal against Chief Justice ruling
Lebogang Mosikare | Thursday November 9, 2017 18:00
Recently, Justices; Tshepo Motswagole, Lot Moroka, Gaolapelwe Ketlogetswe and Godfrey Nthomiwa, went to court asking for the review and setting aside of a JSC’s decision to open an investigation against them over the now infamous petition in which 12 judges expressed lack of confidence in the Chief Justice. The petition accused the CJ of tribalism and sabotaging judges’ careers, amongst other allegations.
The four judges landed in hot soup after they refused to apologise to Dibotelo for their role in the petition, a matter which ended up involving President Ian Khama after the JSC wrote to the judges asking them to show cause why he should not be brought in to resolve the issue.
The judges instead sued the JSC, Dibotelo in his capacity as the chairperson of the JSC and the Attorney General respectively as the principal legal advisor to the government, saying the decision to launch an investigation was “irrational and illegal”.
Last month, Justice Phadi Solomon dismissed the judges’ application for an interim interdict of the investigation.
In their grounds of the appeal filed recently, the judges say that Solomon erred and misdirected herself in not finding that the JSC took decisions capable of being reviewed at law. The decision in question relates to the opening of the investigation against the judges in relation to the petition.
“Solomon erred in not finding that the petition constituted a complaint against Dibotelo in terms of Section 11 (b) of the Judicial Services Act of 2014 and the appellants were complainants. The judge erred in not finding that the JSC turned the complaint against Dibotelo into a complaint against the appellants.
“The judge erred in not finding that there was a delay in opening an investigation against them in relation to the petition and making a decision for them to show cause why the matter should not be referred to Khama,” reads the appeal.
The grounds for appeal are part of an application for leave to appeal Solomon’s decision. No ruling has been made on the application yet.
The judges additionally say Solomon erred in finding that the delay by the JSC to open an investigation against the appellants was justifiable.
“The judge erred in finding that the appellants accepted the explanation by the JSC for the delay in opening an investigation against them.
“The finding by the judge a quo that the CJ was not present when the decisions complained of were taken is against the weight of admitted evidence. The judge misdirected herself by no-direction in that she failed to determine that the JSC was using its powers for an ulterior purpose (which was) to extract an apology from the appellants.”
The appellants also say that Solomon misdirected herself in determining that a court of law has no jurisdiction to interdict quasi-judicial bodies from performing their statutory functions even in the face of breaches of fundamental tenets of law.
The judges also lament that Solomon erred in not finding that they had a right to protection of the law in particular the right to prompt disciplinary action adding that Solomon erred in conflating the requirements of an application for an interdict pending review proceedings with the requirements of a substantive review.