Attorney General Athaliah Molokomme has not taken kindly to insinuations of ethical impropriety on her part by lawyers acting for Kgalagadi Breweries.
Concerned that her proffessional and personal integrity are at stake Dr. Molokomme has called on Armstrong Arttoneys to retract the allegations they have made against her.
This happened after the Attorney General wrote the Registrar of the High Court alerting Chief Justice Julian Nganunu of her fears that Justice Unity Dow’s continued involvement in the case between government and Kgalagadi Breweries might compromise justice.
Last week, Justice Unity Dow granted KBL relief by restraining government from implementing the decision to impose a 30% levy on alcoholic beverages.
Government had wanted to implement the levy starting October 1.
In a no-blows-barred letter, Armstrong Attorneys, acting on behalf of Kgalagadi Breweries, accuses the Attorney General of discourtesy and untruthfulness.
“You first, to the surprise of our senior and two junior Counsels, refused to accompany them to Chambers for the purpose of the usual courtesy introduction to the allocated judge. Our Counsel at the time attributed this merely to a discourtesy to them, but it is now apparent that the refusal was also intended, as it plainly did, to constitute a discourtesy to them and a reflection on Dow J.”
The exchanges between the two camps have also narrowed down on Justice Unity Dow with the government through the Attorney General just slightly falling short of calling for the Judge’s recusal as her continued involvement is compromised.
“I note that the Attorney General says that there have been irregularities that ‘might have compromised’ my continued involvement in this matter. The irregularity complained has to be my sitting as a single judge, in the face of a properly constituted panel, (as asserted by the Attorney General) in terms of Section 6 of the High Court. It is thus the jurisdiction of the Court, as it was constituted on the 26th September 2008 that is challenged. No doubt the Attorney General will mount the necessary processes to obtain redress, if it persists in this view.
The challenge though goes further, it is said that my ‘continued involvement’ is compromised; the Attorney General appears to be pressing for my recusal. Once again there is a process by which redress in such circumstances can be obtained,” said Justice Dow, who clearly did not take kindly to insinuations that her sitting as a single judge had constituted an irregularity.
The whole judicial fracas was ignited by a letter from Dr. Molokomme to the Registrar of the High Court in which, among other things, she alleges “irregularities” which she says she believes seriously prejudiced the government’s case.
In her letter dated September 29th, Dr Molokomme registers her disappointment that a promise made to her by the High Court Registrar that the case between government and Kgalagadi Breweries would be heard by a panel of three judges has not been honoured.
The Attorney General had made a request, which she says had been acceded to, that in view of the weighty constitutional issues being raised in the application by KBL, it would be in the interest of justice if a panel of judges, rather than a single judge heard the case.
“On the morning of 26 September, the matter came before a single judge and not a panel of judges as you had assured us. The judge, Honourable Justice Dow, while acknowledging the decision by the Chief Justice to constitute a panel, proceeded to summarily make orders that effectively granted the relief sought by the Applicants. This was done in spite of an interlocutory application from myself which sought to set aside the entire proceedings on the basis that they are not properly before the court,” said Dr. Molokomme.
Continuing to register her displeasure at the turn of events at Justice Dow’s Court, Dr. Molokomme – a former High Court Judge – said it was unfortunate that the government was not given the opportunity to be heard on the interlocutory application.
Dr. Molokomme is not happy that an application for protection made from the bar by KBL was granted, with the result that the breweries group obtained the relief they sought.
In addition, the judge ordered the terms that require the parties to file and serve certain documents between now and 28 November 2008.
“Clearly this order requires us to file documents on the merits of the case, even before our interlocutory application has been considered. This situation, in my view, might have compromised the continued involvement of the judge in this matter. In conclusion the Government has, without doubt, been seriously prejudiced by the manner in which this matter has been handled. I, therefore, as a matter of urgency, request that this irregular step be rectified by convening a panel of judges to hear our interlocutory application. In view of the seriousness of the issue raised by this matter, I ask that you kindly bring the correspondence to the attention of His Lordship the Chief Justice.”
After outlining the reasons that led to her sitting as a single judge, Justice Unity Dow challenges Dr. Molokomme to seek for redress by mounting the necessary legal processes.
“The Attorney General appears to be pressing for my recusal. Once again, there is a process by which redress in such circumstances can be obtained.”
Lawyers acting for KBL have also not taken kindly to the request lodged with the Chief Justice by the Attorney General.
“In court you were indeed twice invited in the course of argument by our senior Counsel to advance your in limine points, but you chose twice not to do so. The result is indeed, as you now appear to have realised, that by your own election so-called jurisdictional points were not argued ÔÇô as a result of which the Court made its interim order directing, inter alia, that a hearing will now indeed take place on the final relief, with an interim interdict in the meanwhile made against the Minister and the Attorney-General representing the Government.
In their hard hitting letter, a copy of which has been sent to the Botswana Law Society, KBL lawyers infer that it is possible that the Attorney General has since realised (or been upbraided for) the consequences of her clear election, twice, not to argue her in limine jurisdictional objections, and is now employing a strategy to undo the interlocutory interdictory relief against government to which her election gave rise.
“Of course, our clients hold your clients to that election. In our Counsels’ oral┬áargument an objection was noted to the wholly improper approach made by you to the Chief Justice by letter not copied to us. You rightly apologised for this, claiming an oversight on your part. Now it transpires that you also had an ex parte discussion with the Registrar too, relating to the procedural regulation of this matter. This conduct, compounding your ex parte approach to the Chief Justice, is plainly unprofessional, and will be pursued appropriately with the relevant authorities.
“In the above respects your letter under reply, it has to be said, is thus not truthful. The suggestion of erroneous conduct on the part of Dow J is reprehensible. Together with the sudden attempt, after Dow J had been allocated by the Chief Justice to hear the matter, to achieve a Bench of three judges, it points to an improper attempt first to dilute her participation and now to procure her removal from the matter,” says the Armstrong Attorneys.