28 Mar 2017

Parliament has adopted amendment to the Court of Appeal Act which will see the number of appeal judges increased to 12.
Minister of Defence, Justice and Security, Mr Shaw Kgathi tabled an amendment to the Court of Appeal Act last Friday seeking to prescribe the number of justices of appeal to be 12.
Mr Kgathi said the objective of the bill was also to comply with the High Court judgement of February 2017 which rendered appointments of justices of the CoA unconstitutional.
The court had indicated that appointment of justices were unconstitutional on the basis that the justices had been appointed on more than one fixed term contract which contravened Section 101 (1) of the Constitution.
The court had further ruled that Parliament abdicated its responsibility by not prescribing the number of justices of the CoA as per Section 99 (2) of the Constitution.
“Fundamentally, the judgement has pronounced that Parliament has abdicated its responsibility, which I am now facilitating by the amendments I am putting before this honourable House and requesting Parliament to assume its responsibilities as conferred on it by Section 99 of the Constitution,” Mr Kgathi said.  
Judgement followed a case through which the National Amalgamated Local Central Government and Parastatal Workers Union challenged the constitutionality of re-appointment of justices of appeal once their three year contract term expired.
Mr Kgathi said the six-clause bill also sought to validate appointment of the affected justices.
“The validation seeks to guard against any application that maybe brought to court in the future challenging the decisions made by justices whose appointment have been rendered unconstitutional by the judgement,” he explained.
Further, he said the number of litigations brought before the court had increased over the past two decades necessitating the need for a well-functioning court to deal with such issues.
“The Court of Appeal has had eight justices since 1994. I am therefore proposing 12 to allow flexibility to enable growth without having to come back to Parliament in the next decade,” Mr Kgathi said.
Nata-Gweta MP, Mr Polson Majaga supported the bill saying it was important for the number of justices of the CoA to be increased so that cases  would be held on time.
Gaborone Bonnington North MP, Mr Duma Boko accused the minister of “trying to unlawfully validate unconstitutional appointment of justices by amending the law.”
The opposition leader, however, advised that the only thing Parliament could do to comply with the Constitution was to prescribe the number of justices.
Mr Boko was against prescription being used to validate previous appointment which the court had found unlawful and unconstitutional.
Selebi Phikwe West MP, Mr Dithapelo Keorapetse also argued that Parliament would 'acting illegally' if it passed the amendments.
He said clause five which sought to validate judicial pronouncements, judgements, rulings and acts which were passed by justices of the CoA, and clause six which sought to validate all proceedings before the number of justices of the CoA were prescribed by Parliament were unlawful because they violated principles of legality. ENDS