Gaetsaloe vs Debswana: a test of the integrity of Botswana's judicial process

Staff Writer | Friday July 16, 2010 00:00

Gaetsaloe is represented by Attorney Itumeleng Segopolo of Segopolo & Company, while Debswana is represented by Advocate Stephen Vivian and Dineo Makati-Mpho of Collins Newman & CompanyGaetsaloe, a former employee of Debswana who resigned (and not fired as it has consistently been reported) from the mining giant in December 2004 dissatisfied with standards of governance, launched an action in the High Court in September 2005 claiming unpaid bonuses and other remuneration earned in the course of covering positions additional to his designated post. His action in the High Court is still to go to trial.

The appeal arises out of a ruling by the High Court in June 2008 holding that a substantial portion of his claim had prescribed in terms of the Prescription Act. Gaetsaloe disagrees with the High Court's interpretation of the relevant section of the Act.

In a previous appeal to the Court of Appeal, Gaetsaloe took issue with another decision of the High Court in the same case where the High Court had refused to order the disclosure and production of documents in Debswana's possession which he argued were essential evidence in his case.

That previous appeal was decided in July last year when the Court of Appeal held that the decision denying Gaetsaloe access to the documents was not appealable, in that it was a matter purely internal to the proceedings in the High Court and did not affect the outcome of those proceedings. Gaetsaloe, however, argued that the decision was final in its effect since he would be unable to prosecute his case in the High Court without the vital evidence. In the end, the Court of Appeal struck the appeal off the roll for lack of appealability. 

When the second and present appeal was called for hearing in January, Gaetsaloe and his attorney discovered that the three judges who had struck his previous appeal off the roll were on the five-judge panel. The three are Judges Stanley Moore, Dr Seth Twum and Craig Howie. He applied for their recusal, citing that their failure to deal with his previous appeal in a fair and impartial manner gave him reasonable cause to doubt that they would afford him a fair hearing in the present appeal.

Gaetsaloe cited, in particular, the fact that the three judges had taken the unprecedented step of basing their judgment in July last year, exclusively on the submissions of Debswana's lawyer without having made any mention of the contesting arguments by his (Gaetsaloe's) lawyer and without explaining why they disagreed with those arguments.

Gaetsaloe and his attorney maintain that it is an elementary rule of justice and of law that a court should weigh evidence and arguments from both sides of a dispute and show in its judgment that it has done so. Furthermore, one of the judges, Justice Howie, had taken an opposite decision in a similar matter, with similar arguments to Gaetsaloe's while still serving on South Africa's Supreme Court of Appeal (the case of Tetra Mobile Radio v MEC Department of Works and Others [2007] SCA 128).  

In their rulings delivered in January , the judges dismissed the application for their recusal as being baseless. The acting Judge President, Judge McNally, who also sat on the five-judge panel, agreed with his colleagues. The judges argue that Segopolo was apprehensive towards them and wanted them to state their responses to each and every complaint he has raised in his application.

'Instead of hearing the appeal, therefore, we heard Segopolo, purportedly speaking on behalf of his client, contend that in an earlier hearing these three judges had manifested bias, such as to give rise to a reasonable suspicion that the three judges might be biased against his client and that consequently his client apprehended that he might not receive a fair hearing before a court on which they sat,' McNally said in his ruling. He said the judges have responded opposing the application. 'I should indicate here that I entirely agree with the decision of the learned judges,' he concluded.

The position of the fifth Judge, Justice Foxcroft, is as yet unknown since he had nothing to say about the application and his signature does not appear on any of the rulings.

Segopolo and his client argue that in the same session of the court in January this year, a five-judge bench of the court granted the late Louis Nchindo a judgment giving him access to documents in the hands of the Director of Public Prosecutions (DPP), which Nchindo said were essential to his case. Nchindo, his son Garvas, Golconda Holdings (Pty) Ltd, and Tourism Development Consortium (Pty) Ltd. were facing criminal charges and the DPP was reluctant to furnish them with all documentation they were going to use during trial.

They also demanded a list of witnesses, some of whom they wanted to interview prior to the trial. Judge Howie was on the same panel that granted the judgment in Nchindo's favour. Segopolo and his client point to this as evidence of inconsistency. He argues that the public must wonder why, when certain people appeal, they are granted orders allowing them access to vital evidence, when others presenting the same argument are told that their cases are unappealable.

Gaetsaloe's application is now that the four judges - McNally, Moore, Twum and Howie - must be recused by the court as a whole, since the last three have failed to answer properly his complaint against him, and Judge McNally appears to have aligned himself to the same judges who have failed to exonerate themselves.

What remains to be seen is whether the three judges will step down as per Segopolo's application as he argues that they have failed to rebut his fears of bias and prejudice. 'Having failed to rebut the grounds for the application the justices remain disqualified from hearing the prescription appeal. The appellant accordingly seeks their recusal by a full bench of this Honourable Court. The conduct of MacNally with regard to the application for the recusal of the three justices has been such as to engender doubts as to his own impartiality. Accordingly his recusal is also sought,' Segopolo said his preliminary application to be heard on Monday 26.