Five judges to decide colleagues' recusal

BAME PIET
Staff Writer | Friday July 30, 2010 00:00

Donald Gaetsaloe is seeking court intervention to order the company to pay him outstanding payments and bonuses for performing additional duties as acting officer for several months before he left the company.

Judges Seth Twum, Stanley Moore and Craig Howie have been requested to recuse themselves from the case on allegations of bias towards Debswana.

The attorney representing Gaetsaloe, Itumeleng Segopolo - had appealed a High Court ruling that denied him documents from Debswana that his client wants to use as evidence in his trial as well as another ruling that his claims had prescribed. The three judges heard and dismissed the appeal, hence the application for their recusal.They refused to recuse themselves and another application was taken up with their colleagues.

Three of their colleagues sat on Monday to find the best way to proceed with the matter when the Court of Appeal resumes in January. Judge President Patrick Tebutt, Justice Michael Ramodibedi and Lord Abernethy listened to Segopolo last Monday when he argued that the issue of recusal is a constitutional matter on the right of a litigant to a fair hearing before an impartial court. He argued that a panel of five judges should preside over the matter to determine whether the court has power to order their colleagues to recuse themselves.

In their ruling yesterday, the judges conceded that the court has power to correct any miscarriage of justice as well as sit on constitutional matters. 'Accordingly, in our opinion, when the court is presented with a matter which raises important constitutional issues, as this application does, it should not be unduly distracted by the differences between an application and an appeal. To do so would be unduly technical and would overlook the substance of the matter. That means that a court of five judges should be convened to deal with it. To deal with it in any other way would be inconsistent with the requirements for dealing with an appeal raising constitutional issues of this kind and not do justice to the importance of the issues raised in this application,' the judges said.

Advocate Stephen Vivian, for Debswana, had argued that there was no need for five judges to preside over the matter since it was an application and not an appeal. 'Vivian did not suggest otherwise but we are satisfied that Segopolo was correct on this point,' the judges said as they cited the case of former South African president Nelson Mandela against the South African Rugby Union (SARU). 'Judges have jurisdiction to determine applications for their own recusal. If a judge of first instance refuses an application for recusal and the decision is wrong, it can be corrected on appeal,' partly reads the judgement of the South African Constitutional Court.