Dibotelo denies allegations against him
Lebogang Mosikare | Thursday September 21, 2017 18:00
The judges - Justices Tshepo Motswagole, Lot Moroka, Gaolapelwe Ketlogetswe and Godfrey Nthomiwa want the court to review 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 and 31, 2015 where the infamous housing allowance issue that led to the suspension of some judges cropped up.
The judges were suspended on account of receiving housing allowance while simultaneously being provided with institutional accommodation. The judges then stated that they tried everything in their power to indicate the anomaly to officials of the Administration of Justice, but the payments 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.
In his answering affidavit dated September 18, 2017, that was deposed before Justice Phadi Solomon of the Francistown High Court, Dibotelo denies that JSC has opened any investigation nor is it continuing with any investigation against the applicants in respect of the petition dated August 17, 2015.
“The applicants were called upon to show cause why the original petition they endorsed and the letter of May 30, 2017 addressed to them together with their responses thereto should not be referred to his Excellency Ian Khama for his consideration in terms of the Constitution. In response they launched the current application,” he said. Dibotelo said that the matter cannot be referred to, nor categorised as “vintage”, but is a matter that has been in existence for about 25 months.
“I deny that this is a correct reflection of what transpired. I have always been a leader who advocated for the improved conditions of service for the judiciary and for the continuous legal training. As I depose to this affidavit, the first and fourth applicants have just returned from Cape Town where they underwent training as confirmed in paragraph 67 of the first applicant’s founding affidavit.
My position at the conference was no different. I was neither incensed nor dissatisfied by the resolution nor was I a proponent of the view that additional training was unnecessary,” said Dibotelo.
He said that he was concerned that when some judges discussed the issue of continuous judicial training, as if they wanted to be sent back to law school for initial training not withstanding that when they appeared for interviews before the JSC, they had exalted themselves with regard to how qualified they were as judges.
He added: “I categorically deny that I made remarks regarding the destruction of careers, press exposure, or the ambitions of other judges to become Chief Justice… I had earlier informed judges that it had come to light that certain judges who occupied houses provided by the government had also been receiving housing allowances and that this was being investigated”.
He said he never mentioned the names of those involved and that he only knew about the state of affairs shortly before the judicial conference following government’s decision to increase judges allowances to P13,500 per month.
“I instructed the Registrar to compile a list of judges receiving the housing allowances so that the AG could be informed accordingly. It was then that the Registrar informed me that some judges had been receiving the housing allowances, which they were not entitled to. The allegations by the third respondent that I would expose such judges’ indiscretion to the print media so as to destroy their careers is not true…”
The Chief Justice also denied that he is of destructive and divisive nature and “can neither confirm nor deny what transpired in Mahalapye as this is not within my direct knowledge”.
He added that, “In terms of the Constitution, the JSC shall not be subject to the discretion nor control of any other person in the exercise of its functions and hence it saw it fit to write to the applicants on August 19, 2015 indicating that it would not be appropriate to meet with them with regard to the issues raised in their letters whilst investigations by the police were pending”.
Dibotelo said through the same letter the applicants were informed that it would be inappropriate to meet with them to discuss the issues they raised whilst police investigations were pending, to which letter they never responded to, to raise concern on why their petition was not dealt with simultaneously with the housing allowance issue.
“Their silence meant that they accepted the explanation that it was logical and proper for their issues to be dealt with after the housing allowance issue… The issue of the housing allowances was dealt with primarily rather than the issue of the original petition involving the four applicants because the ‘housing allowance judges’ were thought to be more ‘culpable’ because of the letter written to Chief Justice copied to all judges of the High Court, which was viewed as divisive and damaging to the judiciary and also because of the petition they signed and other judges including the current applicants,” Dibotelo said.
Dibotelo said the four applicants were at liberty to have withdrawn the petition and tendered apologies just like their counterparts and by now the issue of the petition standing as withdrawn would have been logically concluded.
“I deny that during the time lapse, the JSC had refused to hear the petition, but that the JSC explained in annexure GG3 pending completion of the work by a Presidential Tribunal and the police investigations and hence the JSC did not refuse to hear the petition.
“I deny that the applicants have been complainants in this matter. The act of writing a petition against the Chief Justice and circulating it publicly may in light of the attitude of the applicants’ conduct be interpreted by any reasonable person as prima facie a conduct to undermine the integrity and authority of the Chief Justice,” Dibotelo said.
Amongst others, Dibotelo also denied that there has not been any inordinate delay in the matter, but the JSC explained that certain issues were under police investigation and that there was a pattern of behaviour that showed that the judges were trying to undermine the authority of the Chief Justice.