21 Feb 2017

Gaborone High Court Judge Justice Singh Walia has dismissed with costs a preliminary application in which suspended Botswana Premier League, chief executive officer, Bennett Mamelodi had wanted the court to interdict the Botswana Football Association disciplinary hearing against him.

In his ruling, Justice Walia said he was cognisant that Mamelodi was cagey with the disciplinary hearing given that they argued that it was based on an illegitimate forensic audit.

He however said the applicant was silent on what right he sought to protect, but instead contended that the disciplinary hearing did not provide a remedy adding he was also silent on the question of balance of convenience.

However Judge Walia said it appeared from the papers of the applicant that the right he sought to protect was the right to have the forensic report to be declared invalid, as it was conducted in the absence of Mamelodi’ s participation during investigations.

He said BFA had argued that during the disciplinary hearing, Mamelodi had the right to cross examine the witnesses and was entitled to call witnesses.

In that regard, Judge Walia said he was not satisfied that his court was the right platform for the application, adding that if during the disciplinary hearing Mamelodi felt aggrieved, there were still other avenues he could  exhaust.

He ordered that BFA should make available all documents, report and ledgers required by Mamelodi and they should be delivered within two weeks, and the hearing should commence not later than April 20.

Earlier in his argument, BFA attorney Otto Itumeleng pleaded with the court to shun the attempt to have a disciplinary hearing heared in court but instead the matter should be dealt with by the internal remedy or mechanisms provided for at the work place.

He told the court that the internal process and remedy were still available to the scrutiny of the court once the process had been concluded.

Itumeleng said the outcome of the disciplinary process was a normal natural occurrence and that under the disciplinary process, an employee may be adversely affected by either dismissal, suspension or any other form of punishment.

He said Mamelodi was entitled to call witnesses, submit written statement and he was entitled to defend himself and to seek the assistance of employee representative of his choice to assist him                during the disciplinary hearing.

“Therefore my Lord, it is too premature for this case to be before this court, there are internal processes that need to be exhausted,” he said.

Mamelodi’s attorney Dutch Leburu on the other hand had argued that the forensic audit had found criminal conduct against Mamelodi including conclusions of fraud.

“The report actually mentions Mamelodi more than 15 times, as having done those wrongful acts which amounts to criminal conducts,” he said.

The report, he said formed the fabric of the disciplinary hearing, adding that his client was scheduled to attend the disciplinary hearing but he was not furnished with complete record of ledger and transcript of witnesses who were interviewed against Mamelodi in the forensic investigation.

Meanwhile, Mamelodi has already approached the court to set aside the forensic audit, and the BFA is expected to file a reply to founding papers, and the case is expected to be heard at the high court. BOPA