09 Feb 2025

The Court of Appeal on Thursday dismissed two applications by former Permanent Secretary to the President and criminal convict, Mr Carter Morupisi.

Mr Morupisi, convicted of corruption and money laundering, had applied to interdict the Court of Appeal proceedings against him in order to challenge the authority of Judge President, Justice Tebogo Tau to empanel and also to have two members of the Court of Appeal bench recuse themselves.

He wanted Justices Leatile Dambe and Isaac Lesetedi to recuse themselves from the bench, arguing that they had in the past taken part in the Capital Management Botswana (CMB) review application, of which he was convicted of his role in the matter.

When arguing the authority of Justice Tau to empanel, his attorney, Dr Obonye Jonas said although the law conferred the authority to empanel on her, she was not supposed to empanel in the matter before the court. Dr Jonas said Justice Tau should have delegated the authority, as the application before the court sought to review a decision of a panel she was part of.

“Why not find someone else to empanel? There are circumstances where the judge president of this court must not empanel and relinquish that power to someone else,” he said.

He said when empanelling, Justice Tau violated the rules of natural justice, adding that no person should be allowed to empanel while the decision under review was the one they participated in. Dr Jonas said it was their view that Morupisi would not be heard by an impartial and fair panel, as the decision to empanel was tainted.

“There are nine justices of the Court of Appeal, four have already participated in the matter, what options were there for the judge president, was it not to use the remaining five?” Justice Lesetedi asked, to which Dr Jonas submitted that it was their view that the panel selection process was compromised.

On the recusal application, Mr Kole Kole said both Justices Lesetedi and Dambe had in the past participated in the review application involving Timothy Marsland who was the director of CMB, a company which formed the basis of Morupisi’s conviction. As such, he said, the facts in the Marsland case were the same as those in the Morupisi’s matter hence the judges would in the eyes of the public not bring a fair mind to the case, adding that it was important that justice should be seen to be done in the eyes of the public.

However, the state opposed both applications by Morupisi’s lawyers arguing that in the stay application, the test used was for the interim interdict, arguing that interim interdict challenges a specific event and seeks to preserve the status quo. And further argued that the applicants were in error to suggest that a reasonable person would perceive unfairness if the two judges make part of the panel, as a reasonable person would be abreast with the Morupisi case.

“There are no sufficient facts presented to understand why the two justices are asked to recuse themselves,” said Mr Tshiamo Rantao for the state.

He further added that both CMB and its directors were not party to the proceeding in the main application, where the state was appealing the High Court decision to liberate Morupisi from prison. Mr Rantao therefore said the Court of Appeal should dismiss the case with costs.

In its ruling, the Court of Appeal dismissed both applications with costs and will give reason on 21 February, while the main application will be heard on Tuesday. ENDS