05 Mar 2017

By Benjamin Shapi

GABORONE - Lobatse High Court Judge, Justice Abednego Tafa has clarified mist over ‘misleading’ media reports purporting that recent constitutional case involving some judges of the Court of Appeal (CoA) was a contest between State President and trade unionist, Mr Johnson Motshwarakgole.  
Justice Tafa, who recently ruled in favour of the National Amalgamated Local Government and Parastatal Workers Union, represented by Motshwarakgole, its organising secretary as the applicant and the Office of the President, the Judicial Service Commission (JSC), the National Assembly, Attorney General and named Justices of CoA, said the reports are highly misleading.
He noted that it was not, as portrayed by some media houses, a contest between Mr Motshwarakgole and President Khama.
Last month Justice Tafa ruled in favour of Manual Workers Union, which had soought court intervention to clarify whether Section 4 of the Court of Appeal Act (Cap 04:02) is compatible with Section 99(2) of the Constitution and therefore invalid and whether it is unconstitutional for the President to review the appointment of a Justice of Appeal on the expiry of a three-year appointment.
In his February 16 ruling, Justice Tafa found that Section 4 of the Court of Appeal is constitutionally invalid and therefore struck down; the appointment of a Justice of Appeal on more than one fixed-term contract of three years term is unconstitutional and that the appointment of six to 11 respondents is constitutionally invalid.
However, on Thursday’s ruling, in which the Attorney General had applied for a stay of execution of the Order, but lost with costs, Justice Tafa stated that, ‘What happened when the judgement was typed is that the court reporter rearranged the paragraphs so that paragraph two was split into two, hence the confusion,” which led people to think that six judges were invalidated while in fact it was only two judges.
On Thursday’s ruling, Justice Tafa noted that the application by the Attorney General was dismissed subject to the correction to the effect that Order 4 of the Court’s Order of February 16 is, in respect of 6th and 7th (Justices Isaac Lesetedi and Stephen Gaongalelwe) respondents suspended for six months.  Earlier on Judge Tafa explained that the section of the CoA Act that the court struck down as unconstitutional was enacted way back in 1980.
He noted that it was repealing an earlier provision that had been enacted in 1972.
“It does not require knowledge of rocket scientist to understand that the Act was enacted more than 20 years before President Khama became the President of this Republic.
I can say without fear of being contradicted that the piece of legislation was enacted long before Mr Motshwarakgole was appointed to his present position and even before the first respondent was constituted in its present form,” he said.
Justice Tafa said he made these remarks because ‘reports such as these’ are likely to mislead the public regarding the true state of affairs and result in confusion and misdirected emotional outbursts.
In the meantime he raised concern that the 1st respondents answering affidavit or excerpts thereof were published in one of the newspapers before the same was filed with the court.
He therefore warned those responsible for leaking the said affidavit to desist from doing so as the court does not take kindly to such a practice. ENDS