The Administration of Justice is investigating allegations that a High Court Judge, First National Bank of Botswana (FNBB) and its lawyers Briscoe Attorneys may have colluded to undermine the justice system, documents passed to the Sunday Standard have revealed.
According to a letter dated 21 December 2017, the then Acting Chief Justice Abednego Tafa informed one Patrick Molefhe (a defendant in a case against FNB) that “I have requested the Registrar and his team to investigate your complaint and report back to me so that I could respond authoritatively to your complaint.”
Molefhe had lodge a complaint with Justice Tafa that the case between him and FNB was adjudicated twice before two different High Courts. The same matter was allegedly heard before the Gaborone High Court under case no. CVHGB-000140/16 and also by Lobatse High Court under case no: CVHLB-002323/11.
In another letter addressed to former Chief Justice Maruping Dibotelo dated 14th December 2017, Molefhe states “that I wish to bring to your attention a concern relating to a matter which has been adjudicated twice by courts at the same level. This creates an opportunity for abuse of office and corruption within then judicial system.”
He added that “The matter at hand relates to a case between me and FNBB about property I bought through mortgage loan. Following a default of payment FNBB referred the matter to Kanjabanga Attorneys and the matter was heard and adjudicated by Lobatse High Court case No. CVHLB-002323/11. The same matter was also handled by Briscoe Attorneys representing FNBB under Case No. CVHGB-000140/16.”
Molefhe said that “My layman’s understanding is that a case on the same matter cannot be heard by court of the same level twice.”
Molefhe informed Dibotelo that “FNBB, together with Briscoe Attorneys were very much aware of the Lobatse High Court ruling, however, with the lack of proper case management at the Administration of Justice they took advantage and registered the case as a new matter,, which is fraudulent.”
He concluded thus “it is against this background that I’m appealing to your office to intervene or act to protect citizens of this country as this kind of action will persist and make us not to have confidence in the judiciary system.”
Yet in another letter of complaint addressed to Dibotelo, Molefhe stated that two people were sent to his house by an FNB employee (names withheld) and the High Court judge (who was presiding over case no: CVHGB-000140-16- Molefhe vs. First National Bank) to collect P25 000.
Responding to Molefhe’s letter, Dibotelo states that “as the matter is ongoing before another judge you are advised to lodge your complaint before him about what allege some people did at your Extension 14 home in Bontleng.”
Molefhe also reported FNBB to the Bank of Botswana for its alleged misconduct. The Central Bank advised him to take up the matter with the Botswana Banking Ombudsman.
In a letter dated 30 October 2017, the Botswana Banking Ombudsman stated that “as far as they are concerned, they (FNBB) are only aware of case number CVGB-00140-16 and not case number (VHLB-002323-11.
Molefhe also alleged that he had suffered abuse at the hands of one Patricia Khoza from FNB in South Africa and he has since reported the matter to the ombudsman saying he had a contract with FNB in Botswana and not FNB in South Africa.
Responding to Sunday Standard queries, Registrar of the High Court Michael Motlhabi said “…we are also aware of the matters and complaints raided in your questionnaire.”
He said “We find it improper to divulge the specific details which are private. The concerned parties are at liberty, if they deem it appropriate to share the details of our response.”
Motlhabi said “Suffice to state that regards Mr. Molefe, there is a legal framework to the effect that once a case between the same parties concerning the same subject matter and founded on the same cause of action is determined by the Court it becomes res judicata (a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties).”
The Registrar added that “The fact that we have a defence in the form of res judicata means that it is not upon the Registries officials to refuse registration of cases on account of them seemingly bearing the same parties. The res judicata principle is raised before court by the parties for investigation and determination.”
“In a nutshell, the issues raised have nothing to do with the operations of our system as we have a framework in place to deal with forum shopping,” said Motlhabi.
For its part, Briscoe Attorneys said “In October 2010, Briscoe Attorneys registered a bond on behalf of First National at the instruction of FNB. Briscoe Attorneys has never acted on behalf of Mr. Patrick Molefe.”
Molefhe insisted that Briscoe Attorneys are conflicted because he had paid them money for preparing a title deed and transfer fees when he bought a house through a loan he acquired from FNB only for the law firm to “turn against me and represent FNB.”
Briscoe Attorneys also denied that Case No. CVHGB-000140/16 is pending before the court. “The case was determined in favour of FNB on 30 June. Following judgment, on the 8th November Mr. Molefe filed an application to set aside the judgment on grounds that he subsequently considered spurious, which led him to apply for withdrawal of the application on 28 November 2017. An order granting Mr. Molefhe was made on 23 April 2018. Mr. Molefhe is well aware of these facts, all of which are in public domain,” the Attorneys said.
FNBB Marketing and Communications Director Obonye Malope said “…the Bank is not in a position to discuss matters that are currently before the courts. We respect this rule and will be guided by the court process.”