07 Oct 2015

Lobatse High Court Judge, Justice Tebogo Tau has dismissed with costs a case in which four high court judges challenged the President’s decision to set aside their suspension from office. 

The four suspended judges are Justices Oagile Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang.

The suspended judges also wanted the court to declare invalid the decision by the President to appoint a tribunal to investigate their potential removal from office, and that their suspension violates the rule of law and their right to equal protection of the law. 

The President, the Judicial Service Commission, the Attorney General and the Chief Justice came in as first, second and third respondents respectively.

Delivering judgement, Justice Tau said the applicants failed to demonstrate that they had a right to a hearing prior to their suspension pending an inquiry by the tribunal into allegations of their misconduct. 

Justice Tau said President Lt Gen. 

Seretse Khama Ian Khama in appointing the tribunal and subsequently suspending the applicants acted in accordance with the provisions of the constitution, adding that he did not interfere with judicial independence.

She said the tribunal consists of former judges and that it was significant that their recommendation would be binding on the President.

A decision to remove the judges from their judicial office, she said, would then be taken after allegations of misconduct by the judges have been investigated by the tribunal.

She said it was important for the tribunal to carry out its investigations into the matter and advise the President accordingly.

Justice Tau said it was indisputable that the judges were not afforded an opportunity to make a representation, adding that it was also not in dispute that when President Khama made a decision to appoint a tribunal and to suspend them, it was a preliminary step aimed at causing an inquiry by an independent body.

Although admitting that the reputation of the applicants might be tainted, she reasoned that they shall be afforded ample opportunity to refute the allegations against them.

“Given that the applicants’ reputation has already been somewhat tarnished by wide publication, the only way to salvage their reputation is for them to successfully refute the allegations before the tribunal,” she said. 

The four judges were suspended pending an investigation into their fitness to hold office. 

The judges are alleged to have undermined the authority of the Chief Justice and acted in a manner that was damaging to the judiciary by addressing a letter to the Chief Justice copied to all judges criticising his conduct against them.

They are also alleged to have signed a petition addressed to the Judicial Service Commission seeking the Chief Justice’s impeachment. 

The letter to the Chief Justice and the petition followed a letter to the four judges from the Chief Justice which informed the applicants that they had been receiving housing allowances whilst occupying government institutional houses. 

The applicants were further notified that the JSC had resolved to refer the matter to the police for further investigation.

President Khama suspended the four judges with effect from September 1.

President Khama also appointed a tribunal to inquire into the conduct of  the four judges. 

The tribunal consists of Justice Craig Howie, who is the former President of the South African Supreme Court of Appeal, and a member of the Botswana Court of Appeal, Justice John Foxcroft, who is the former judge of the Cape Supreme Court, and the current member of the Botswana Court of Appeal, and Mr Justice Isaac Lesetedi who is a  member of the Botswana Court of Appeal. 

The tribunal is to look into issues of misconduct following an internal audit report of the judges housing allowance which revealed that the  applicants had over an extended period received housing allowances in addition to residential accommodation.  

The report revealed that the first applicant, Justice Dingake wrongfully received housing allowance of about P200 000 over a period of approximately three years while Justice Modiri Letsididi wrongfully received an allowance of about P500 000 over a period of approximately eight years.

The report also indicates that Justice Garekwe wrongfully received a housing allowance of over P100 000 over a period of two years while Justice Busang wrongfully received an allowance of over P100 000 over a period of approximately two years.

The sum of over P900 000 was paid to the applicants.  Ends