Four High Court judges who are refusing to apologise for signing a petition against Chief Justice, Maruping Dibotelo are accusing the Judicial Services Commission (JSC) and the Chief Justice of abusing their office to force them to apologise.
The quartet has also accused the Judicial Service Commission (JCS) of failing to address their complaints against Chief Justice Maruping Dibotelo and instead slapped them with trumped up charges.
Justices Gaolapelwe Ketlogetswe, Lot Moroka, Godfrey Nthomiwa and Tshepo Motswagole took the war to the JCS following a letter addressed to them by Registrar and Master of the High Court Michael Motlhabi demanding to know their positions on a 2015 petition that had requested JSC to address their complaints against Dibotelo.
The letter also called on the four judges to apologise. The judges resolved not to and instead approached the High Court seeking to interdict JSC from taking disciplinary action against them.
A strongly worded affidavit signed by Ketlogetswe on behalf of the other judges, states that “The First (JSC) and Second Respondent (Dibotelo) converted a complaint by us against the Chief Justice into a charge of misbehaviour in terms of section 97 of the Constitution without affording us the opportunity to be heard on our converse complaint.”
He also stated that “For the avoidance of any doubt, at all times material, I considered myself and other judges who authored the petition to be complainants before the JSC against the Honourable Chief Justice.”
The judges want Dibotelo’s demand that they apologise to him to be set aside because “The decision to open the investigation was made in the presence of, and with the active participation of the Chief Justice, who is the Chairman of the JSC in violation of the nemo judex in causa sua principle (a principle of natural justice that no person can judge a case in which they have an interest.”
Ketlogetswe accused the JSC and the Chief Justice of “wrongfully using their functions and powers for an ulterior purpose, to wit, improperly extract an apology from, us at the pain of facing removal from office of the judge of the High Court.”
Ketlogetswe stated that JSC had refused to give them an opportunity to make representations after they had written to it in August 2015 complaining against Dibotelo.
“Thereafter there was a complete silence from the JSC in relation to me and my co-applicants until the 30th May 2017 when it wrote a letter to me inviting me to state my position on the allegations made in the petition,” he said.
He stated further that “Four judges who co-authored the petition apologised to the Chief Justice. Three of the apologies were in writing while the fourth apology was tendered verbally. In due course, four other judges who were subject of the housing allowance issue also tendered their apologies as part of an out of court settlement. In total, eight judges have tendered apologies.”
Ketlogetswe said the apologies tendered by the eight judges were accompanied by a withdrawal of the complaints or allegations, in the petition, made by the said judges.
“It is appropriate that I state that the first four of the eight judges who tendered apologies have not been subjected to a disciplinary process,” he said.
Ketlogetswe further stated that due to a lengthy passage of time, he had accepted that the JSC had refused to hear the petition. “So much water had gone under the bridge and I considered it in the interest of all for the matter to rest.
“This was, by and large the position of my co-applicants (letters to the JSC). My co-applicants and I seek to interdict the first and second respondents from proceeding with investigation, including referring the matter to His Excellency the President pending the filing of proceedings to review and set aside the decision complained of,” said Ketlogetswe.
He said the grounds of the intended review proceedings are that the decision by the JSC to open an investigation against us for purposes of section 97 of the Constitution and the consequent determination that there is a prima facie case of misbehaviour is liable to be reviewed and set aside on the basis of illegality, irrationality, breach of the principles of natural justice and unreasonableness. “On account of the following, regarding being had to the fact that the apparent cause of the complaints arose in August 2015, JSC and Dibotelo unreasonableness delayed in opening the investigations against us,” said Ketlogetswe.
Refusing to tender an apology, Motswagole told Motlhabi that “I took an oath of office and made a vow not only to the people of this land but to God Almighty as well to stand for the truth and justice no matter the persons and the consequences involved.”