Appeals court absolves judge from criminal investigation

11 Feb 2019

BY MPHO KELEBOGE

Court of Appeal judge, Monametsi Gaongalelwe, was on Friday absolved from being subjected to criminal investigations stemming from accusations of ’theft’ and fraudulent acts.

The charges and the impending investigations were pronounced by High Court Judge Michael Mothobi relating to Gaongalelwe’s controversial housing allowances.

This follows a judgement handed down by Gaborone High Court judge Michael Mothobi in which he ruled that Justice Gaongalelwe be investigated by the Directorate of Public Prosecution (DPP) for possible charges of theft after he was listed on a Ministry of Defence, Justice and Security report for allegedly owing government about P63 000.00 in housing allowance.

Justice Gaongalelwe then challenged the Final Audit Report which exposed him as amongst the judges who had wrongly received housing allowances while occupying government institutional houses.

Three Court of Appeal Judges being Justice Isaac Lesetedi, Zibane Makhwade and led by Justice Singh Walia questioned the manner and the damning remarks used by Judge Michael Mothobi of the High Court in his judgment making a verdict that a criminal investigation by the DPP be conducted against Gaongalelwe.

In his grounds of appeal Justice Gaongalelwe of the Court of Appeal, said the learned judge (Justice Mothobi of the High Court in Gaborone) erred in both fact and in law and/or misdirected himself neither in deciding an issue which was neither pleaded nor in respect of it being heard on arguments or submissions.

He said Mothobi misdirected himself by deciding that the payment of housing allowance to the appellant (Justice Gaongalelwe of the Court of Appeal) from August 2007 to March 2008 was a proper case for a referral to the DPP to make an inquiry on whether the appellant should be prosecuted for theft or stealing.

In his judgment the Court of Appeal said the respondent, attorney General submit that that at worst, the language used by the judge a quo is gratuitous verbiage, incapable of being construed as decision or orders and that the referral of the matter to the DPP is not final in effect, it is not an order or command to the DPP.

’I am unable to agree with the respondent (Attorney General) that the damning remarks in the offending paragraphs of the judgment are merely verbiage. In my view, portions thereof constitute findings and verdicts or decisions with final in their effect,’ said Lesetedi

Lesetedi found that the comments dealt generally with the panel code in relation to theft and fraudulent conversion and those that deals specifically with Lobatse payments are questionable and need to be dealt with.

He said there are no doubts that the barbs are aimed at Justice Gaongalelwe and the comments made by Mothobi amount to general findings of stealing.

It is quite clear that the appellant brought the review application in the court a quo to vindicate his reputation.

Judge Lesetedi purely dismiss judger Mothobi arguing that he was wrong to say, his colleague is a man of incomparable ability and proceeds, on the issues placed before him to exonerate him.

”The volte face in the offending paragraphs is quite inexplicable but there can be no doubt that it was a final decision of the court a qua to impute dishonesty to the appellant (Judge Gaongalelwe) and direct a referral to the DPP, said Lesetedi

He said there is nothing objectionable in a court raising an issue mero motu if the issues can be of assistance in resolving what is before the court or in the interest of justice but it is impermissible for the court to determine such as issue without affording the parties an opportunity to deal with it.

He said not only are the findings appealable, the court a quo has seriously misdirected itself in making defective findings without affording the parties the opportunity to advance arguments on the issue.