Judges win interim interdict to stop disciplinary hearing
Lebogang Mosikare | Wednesday September 13, 2017 16:37
Judicial Service Commission (JSC) chairperson, Maruping Dibotelo had written to the four judges to show cause why the petition which they endorsed and that which allegedly undermined the authority of the Chief Justice Dibotelo should not be referred to President Khama.
The matter is referred to Khama perhaps to set up the Tribunal to inquire into their conduct. Justices Tshepo Motswagole, Lot Moroka, Gaolapelwe Ketlogetswe and Godfrey Nthomiwa respectively say the intended review proceedings will seek to have reviewed and set aside a decision by the JSC to open and continue with an investigation against them in respect of a petition dated August 17, 2015.
According to the judges’ founding affidavit, their application stems from their Annual Judicial Conference that was held in Mahalapye from July 30-31 in 2015 where the famous housing allowances issue that led to the suspension of some judges cropped up.
The judges were suspended on account of receiving housing allowances while simultaneously being provided with institutional accommodation.
The judges stated then that they tried everything in their power to indicate the anomaly to officials of the Administration of Justice, but the payment continued for a long time.
The affected judges were later reported to the police for a criminal investigation, says the affidavit.
The applicants said that their attorney, Wada Nfila advised them that they meet the requirements for the grant of interim interdict.
“We have a prima facie right to be heard even though it is open to some doubt. We have well grounded apprehension of harm or prejudice. There is absence of a similar, or satisfactory alternative remedy and that the balance of convenience favours the grant of the relief in our favour,” says the affidavit.
The judges said, “We crave of the court to deal with the above requirements one after the other.”
On the issue of urgency, the judges say the matter is urgent because they have been given up to September 15 to respond to the show cause letter.
“Evidently, the investigation, which will be the subject matter of review proceedings, is ongoing. The determination that there is a prima facie case for referral in terms of Section 97 of the Constitution was made by the first respondent,” said the judges.
They added: “If this application is not heard on urgency and the investigation allowed to continue, we stand to suffer irreparable prejudice of being subjected to a disciplinary hearing process conducted in violation of our right to a trial or hearing within a reasonable time.
The investigation by the first and second respondents is prima facie, irrational, illegal, unreasonable and in breach of the rules of natural justice. The decision by the first and second respondents to open the investigation into the petition in relation to us, and determine that there is prima facie case has the effect of damaging our reputations as judicial officers.
It also visits upon us unwarranted anxiety,” says the affidavit.
“We cannot be afforded substantial redress in due course, the judges said, ‘for the reasons that if we are not granted interim relief on urgent basis, the opportunity to assert the right to a prompt disciplinary hearing will be permanently and irreparably lost to us’.
“We therefore humbly submit that after receipt of the show cause letter, we did not sleep on our rights to seek urgent relief. The second and fourth applicants received their show cause letter on August 29, 2017. The third applicant received his after September 3, 2017. The first and second applicants have been out of the country on official duty since September 3, 2017 and came back on or about September 9, 2017. This has made it difficult for us to collectively instruct our attorneys. Furthermore, this matter is complex,” said the judges.
Journalists who came to court in great anticipation of covering the case left the court premises a disappointed lot as the matter was held in chambers. Their efforts to write what happened inside chambers hit a snag save to hear that the matter will continue on September 28.