Justices Isaac Lesetedi, Leatile Dambe, Johan Froneman, Edwin Cameron and Goemekgabo Tebogo-Maruping when analysing the recusal application against Justice Kebonang, said the principal ground on which the latter’s recusal was sought was clearly established and reasonable. “It was established that his close family members benefited from funds of a company, following upon the unlawful award of a tender to that company by the Morupisis. There existed an association between the judge's twin brother and the controlling minds of that company. This association led to his brother receiving an undue payment,” said the bench. At the High Court, where Morupisi had filed a review of the Apex court decision against his seven years imprisonment, the Attorney General and Directorate of Public Prosecutions had sought for Justice Kebonang’s recusal citing he had close links with Morupisi as his mother and brother benefited from Morupisi’s unlawful acts.
When reading the judgment, Justice Lesetedi explained that the brother was later obliged to return that payment when the liquidator of the company hunted down the money trail. He pointed out that in addition, there was another association, stating that if it was not for the criminal acts of which Morupisi was convicted of, the company would not have received the very funds that were used to purchase a vehicle for the judge's mother and to make the undue payments to his brother. “The reasonable bystander could be readily be pardoned if she apprehended that the judge would be biased in favour of the respondent. Morupisi was the person who was the root cause of benefits that flowed to the judge's brother and to his mother,” explained Justice Lesetedi.
Justice Lesetedi emphasised that under those circumstances, it would have been proper for the judge to step aside from the entire litigation in these proceedings but instead, he made matters worse, by imputing bad faith on the State for applying for his recusal. He also said Justice Kebonang did so, surprisingly, on the basis of matters the State did not raise at all in the recusal application, nor did he give the State, or those he accused of ulterior motives, a chance to be heard. “His outburst does nothing to assuage the reasonable doubts reflected in the actual ground the Appellants advanced for his recusal,” he read.
Meanwhile, the bench also addressed the counsels for the use of not so palatable language saying there appears to be a tendency of counsels to attack and accuse the bench. “A tendency appears to have emerged of scathing, toxic and unwarranted imputations against the bench,” stated Justice Lesetedi.This was after Morupisi’s attorney, Obonye Jonas, apologised to the bench for the use of unpleasant language in court papers. Justice Lesetedi explained when deciding on costs they (judges) decided to stay their hands in the main application because of what weighs it being the unusual event that took place toward the end of argument, in open court as Jonas, offered an unreserved apology for the intemperate language in they used in the pleadings and the correspondence. “The apology was refreshingly candid and without condition. When confronted with the fact that the language in issue was not that of a lay client, but of a legal practitioner, he embraced personal responsibility, and repeated his unreserved apology,” he said.
Justice Lesetedi concluded that it may be hoped that the beneficent impact of Jonas's apology extended beyond the same proceedings, to other cases, and that hope warranted some amelioration of the costs orders that would otherwise have been appropriate.
