Dibotelo, judges war rages on
Lebogang Mosikare | Friday September 22, 2017 16:12
The judges want the court to review and set aside a decision by the Judicial Service Commission (JSC) to open and continue with an investigation against them in respect of a petition dated August 17, 2015.
In their founding affidavit, the judges say that their urgent application originates from their annual judicial conference that was held at Mahalapye from July 30 to 31 in 2015 where the infamous housing allowance issue, which led to the suspension of some judges, came about.
The judges have cited Dibotelo in his capacity as the chairperson of the JSC and the Attorney General (AG) as the principal legal advisor to the government respectively.
In his answering affidavit, Dibotelo said the applicants - Justices Tshepo Motswagole, Lot Moroka, Gaolapelwe Ketlogetswe and Godfrey Nthomiwa respectively and others - caused “some great interest in the development of this matter to the JSC to further question and scrutinise their conduct to find out if such a petition was indeed a genuine grievance or it was merely to undermine the authority of the CJ of Botswana”.
“However, unlike the other eight judges who saw it fit to tender their individual apologies to me and withdrew their allegations either verbally or in writing, the applicants decided to remain silent, hence our correspondence of May 30, 2017 (annexure GG3) whose sole purpose was now to follow up on the petition and bring it to its logical conclusion,” Dibotelo said.
Dibotelo said that in response, the applicants simply said that due to the passage of time the matter had died a natural death, which answer could not logically conclude a serious matter such as this one.
“It is for this reason that since the police investigations of the housing allowance issue have been completed the JSC has now followed through the petition issue with the applicants who have not withdrawn their petition and tendered their apologies,” Dibotelo said.
“I deny that the JSC has decided to embark on an investigation, since this is the prerogative of the President in terms of Section 97 (3) of the Constitution and not the JSC hence the application to seek an interdict against the JSC is misplaced and premature as no such investigation has been launched by the JSC. In any event no one has the power to stop any investigation… The JSC and not the CJ alone made the decision that it should take the issue of the petition to the applicants for finalisation.
“The applicants then decided to downplay the seriousness of the matter by saying it had died a natural death through passage of time. Naturally this response raised eyebrows to the JSC hence its consideration to appraise the President of the developments for his guidance and or appropriate action,” Dibotelo said.
He added: “In terms of the Constitution, the proceedings which led to the decision requiring the applicants to show cause why this matter should not be referred to the President are valid and procedural even in terms of the members of the JSC who participated in the decision making. Furthermore, such decision was not made single-handedly but collectively”.
The relief sought, Dibotelo said, is misplaced, as there is no investigation carried out by the JSC and hence it should be dismissed.
“The applicants had the alternative to withdraw the petition and apologise as their counterparts did. There is no prejudice to be suffered as the allegation that the applicants will be suspended is mere speculation, especially that it cannot be said now how the President will react to the information he will receive and proceed to take disciplinary proceedings against the applicants,” the CJ said.
In as much as the applicants may contractually be liable to be tried, Dibotelo noted, in the event of a disciplinary infraction within a reasonable time, it is denied that there has been a delay in dealing with the matter.
“I reiterate that the fact that the JSC chose to deal with the more serious offence of housing allowance, which was being investigated by the police at the time and deferred the issue of the petition. The tribunal has since been disbanded after the four judges involved in the housing allowance issue had withdrawn and apologised for the letter of August 12, 2015 and the petition and had agreed to repay the housing allowance….”
The decision to set up a tribunal vests solely with the President and he may decide against the setting up of one hence the apprehension of harm is once again mere speculation. There are no investigations being carried out by the first and second respondents and there has not been an unreasonable delay in dealing with this matter, Dibotelo said.
He continued: “The reasons for the matter not being dealt with simultaneously with the housing allowance issue was because of the housing allowance issue and a letter written to the CJ, copied to all judges of the High Court was viewed as divisive and damaging to the judiciary as well because of the petition signed by them and other judges including the current applicants”.
The applicants, Dibotelo said, had in their petition indicated that “we find it difficult to continue to serve under his leadership and will not participate in any gathering he presides over until the matter is resolve”, but to the contrary, they now allege that they have been discharging judicial duties during this time without let or hindrance.
“This contradicts the statement that they find it difficult to continue to serve under the second respondent’s leadership and therefore they have not suffered any prejudice…. The applicants should not be granted the interdict as they do not have the prospects of success in the review and because there has been no reviewable decisions taken at this juncture by any of the respondents.”
Furthermore, there are no investigations that the JSC has commissioned and in terms of Section 97 (3) of the Constitution, it is the President who can appoint a tribunal to investigate whether a judge ought to be disciplined, removed or not and not the JSC.
“I submit that the applicants have not demonstrated the requirements for the grant of an interim interdict,” he said.
“This matter is not urgent because the applicants have had 14 days since August 28, 2017 to respond to the letter requesting them to show cause and there is no prejudice that they will suffer as the petition has to be followed through to its logical conclusion and not haphazardly as suggested by the applicants,” said Dibotelo adding that the applicants’ orders should be dismissed with costs.
Last week Justice Phadi Solomon, who is presiding over the matter, gave the applicants temporary relief.
She ordered that by consent, the respondents shall not proceed with proceedings against the applicants in terms of annexure GC6 to the applicants founding affidavit until the final determination of the urgent application.
Solomon then set down the matter for hearing on September 25, 2017.