Judge President Patrick Tebutt, Justice Michael Ramodibedi and Lord Abernethy presided on the matter yesterday, on how best to resolve this case that has been before the courts for years. Their colleagues Justice Seth Twum, Stanley Moore and Craig Howie have refused to recuse themselves from the case that has the potential to expose a lot of unknowns in the judicial process of Botswana. It also puts the integrity of the judicial system under serious scrutiny. When the matter resumed yesterday, Itumeleng Segopolo, representing Gaetsaloe stated that his case was a constitutional matter that should not be taken lightly. He argued that the three judges were biased towards Debswana Company hence they should recuse themselves because it was evident that his client was not going to be accorded a fair trial that he is entitled to under the Constitution of Botswana. He argued that the three judges did not bother to address the concerns he made when he applied for their recusal but instead brushed it aside as a non-issue. Segopolo stated further that the Constitution takes in high esteem the issue of recusal of any judicial officer when allegations of bias have been raised. Yesterday's matter was on whether the Court of Appeal has power to order any of the judges to recuse themselves, which Segopolo said it has. He said that the Court of Appeal Act states that a panel of five judges should preside over the matter to make a decision on whether or not to order their colleagues to recuse themselves. "This court is empowered to order to recuse themselves and to correct miscarriage of justice if there is that allegation. Questions of recusal are definitely final," he argued. He cited similar cases in the South African Constitutional Court and Botswana where the same rule was applied. On the other hand Advocate Stephen Vivian, representing Debswana, argued that there was no need for the judges to recuse themselves adding that the Court of Appeal had no powers to order their colleagues to do the same. He said that such an exercise would be like saying their colleagues were wrong, to which Lord Abernethy responded that it happens all the time. He also said that the applicants should pay for the costs of the case. Gaetsaloe left the employ of Debswana in December 2004 and instituted the lawsuit in 2005 seeking unpaid bonuses and other payments for acting in additional positions for several months before his departure.
The application for recusal stems from a High Court ruling denying Gaetsaloe access to crucial documents from Debswana that he feels would strengthen his case. The presiding judge had denied granting him the documentation on grounds that they were sensitive for public consumption and the same judges struck the appeal off the roll. Their grounds were that the matter cannot be appealed. In his previous appearance two weeks ago, Segopolo argued that the court was applying double standards in dispensation of justice.
