Saturday, May 30, 2020

Another CoA ruling casts aspersions on Judge Khan

A panel of three Court of Appeal Justices has again raised questions about Acting High Court Judge Rahim Abdool Khan’s competence.

Delivering a unanimous ruling in a case involving Public Procurement and Asset Disposal Board (PPADB), Zhengtai Group Botswana, and China Jiangsu recently Justice Stephen Gaongalelwe stopped short of accusing Khan of making judgements based on emotions.

PPADB and others had lodged an appeal against a High Court decision to overturn a decision to award a P1.5 billion Maun Water Tender to Zhengtai Group Botswana which tender had initially been awarded to China Jiangsu. Gaongalelwe made reference to submissions that Judge Khan might have gotten frustrated by what he found to be deliberate delays by the PPADB and others.

“I must say while it might well be so a judicial officer’s judgement should never reflect anger at any of the parties.”

He said it was also impermissible for the Court, as the lower Court did,   to confine itself to the interests of one side only.

Zhengtai Group had already started works on the project before their counterparts won the case at the Court. The CoA found that it was wrong for Khan to substitute the PPADB’s decision to award the tender to Zhengtai Group when work had already commenced and Zhengtai had not been found to be at fault.

The decision by PPADB to withdraw the awarding of the tender to China Jiangsu followed a letter from the Directorate of Intelligence and Security (DIS) labeling the company a “national security threat”.  “It is common cause that Zhengtai Group Botswana was in no way to blame for the DIS letter,” Gaongalelwe said. He said case law shows that generally a court must be reluctant to substitute its own decision for that of a body tasked with such duties like PPADB.  In considering such an applications, Gaongalelwe said, the court has to consider the magnitude of the project and the welfare of the community at large.

“In this matter the project in question involves provision of water, an essential commodity in a wide area which has suffered inconvenience for some time. Zhengtai commenced the works in October 2019 though it was later interrupted by court orders. As a result of such interruptions operations have stalled resulting in immense prejudice to the community.”

The panel consisting Justices Gaongalelwe, Singh Walia, and Zibani Makhwade eventually ruled in favor of PPADB, Ministry of Land Management, Water & Sanitation Services, and The Attorney General.

It is not the first time Judge Khan’s competency has been called into question. In 2019 questions were raised over his decision to delay a ruling in which Portfolio Pharmaceuticals Botswana Propriety Limited sought to interdict the Ministry of Health from procuring Anti-Retroviral Drugs.

Delivering a judgement, Court of Appeal’s Justice Walia found that: “In a matter where there were uncontroverted averments of imminent threat to the health and even life of patients in need of drugs, it was irresponsible and callous of the judge to have treated the matter in what I can call an uncaring manner. These are strong words but they echo what has been said by this court before.”

Walia also cited the China Jiangsu judgement in which Justice Isaac Lesetedi had lamented the delay in the court making its decision saying that “the ruling was delivered after the Respondents’ attorneys had on several occasions approached the Registrar and finally written to the Judge expressing the need for the ruling to be delivered expeditiously.”

In that case too, Walia noted, the same judge presided. “This Court is not alone in deploring the delay in judgment delivery, particularly in cases brought on urgency.”

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Sunday Standard May 24 – 30

Digital copy of Sunday Standard issue of May 24 - 30, 2020.