Dibotelo to hear Kgafela appeal

LEKOPANYE MOOKETSI
Correspondent | Thursday December 9, 2010 00:00

 

Dibotelo will be among a panel of judges that includes Francistown-based Modiri Letsididi and Isaac Lesetedi who will hear Kgafela's appeal.  The appeal has been set for next year.

In his appeal, Kgafela argues for the interpretation of the Constitution, insisting that the floggings that were administered were part of his duties as a paramount chief. He claims such floggings are legitimately recognised by the laws of this country.

Earlier, outgoing Gaborone Chief Magistrate Barnbas Nyamadzabo had dismissed this application.  The magistrate ruled that even his court could interpret the Chieftainship Act regarding the powers of a chief. 

As far as he was concerned, taking the matter to the High Court would be a waste of time. But the High Court is going to preside over the appeal next year.

During Kgafela and his co-accused's bail application hearing at the High Court, the state made an application that Dibotelo should recuse himself because Kgafela was once his attorney. Dibotelo's daughter also did her internship at Kgafela's law firm. But Dibotelo refused to recuse himself on the grounds that Kgafela only represented him some nine years ago.

This was just after another High Court judge Key Dingake had recused himself from presiding over another case.  Dingake withdrew from a case in which the convicted former Debswana company secretary Joe Matome was applying for bail. The judge recused himself because Matome's lawyers were representing him in another matter.

Just before Kgafela's bail application, magistrate Nyamadzabo also recused himself from another case because he once attended classes with an accused person when they were University of Botswana (UB) students.  That was a long time ago and, for that matter, Nyamadzabo and the accused person were not doing the same course.

Speaking on condition of anonymity, a Gaborone lawyer said he found it a bit untidy that the judge decided to preside over Kgafela's case despite their past relationship as attorney and client.

'If I were in his boots, I could have recused myself from the case,' he said.

Francistown lawyer Morgan Moseki concurred that it was not correct for the judge to preside over Kgafela's case. 

He said 'the general rule is that a magistrate or judge who is aware that he has a feeling of partiality, enmity or any motive which might actuate him in deciding a matter, should recuse himself.'  He said this is the case especially if you treat the accused person as your own son.  Moseki said Kgafela could be regarded like Dibotelo's own son because he worked with the judge's daughter at his law firm.

Quoting another law principle he said 'where two judicial officers are attached to the same bench as colleagues, irrespective of the order of rank and one of them is a litigant, there is reasonable ground for the other to be recused from trying the action.

He cited a recent case in which Judge Moses Chinengo recused himself from presiding over a case in which retired judge John Mosojane was one of the litigants.

A Gaborone lawyer, who also preferred anonymity, said it was obviously not right for Dibotlelo to preside over Kgafela's case because of their previous relationship.  Quoting a common legal dictum he said justice should not only be done, but must be seen to be done.

'We are not saying he was biased but the perception is that he will not be fair,' he said.

He said right thinking members of the public would think that you would not be fair. 

He said it would make matters worse if Dibotelo's child did her internship at Kgafela's law firm.  'Clearly there is favour that he is getting through his daughter.'

He said if it was true that the judge's daughter did her internship at Kgafela's law firm, the judge should have by his own motion recused himself from the case.

Mmegi could not get a comment from the High Court over the Kgafela matter because the Registrar of the High Court Godfrey Nthomiwa was not on duty, while his deputy declined to comment.