Tuesday, May 18, 2021

Court’n trouble

Can a judge be reasonably expected to objectively listen to a matter that concerns a close associate and colleague at the bench?

Media consultant, Methaetsile Leepile, wants the Court of Appeal to make a ruling on this question. He has filed an ex parte notice of motion for leave to appeal against High Court judge, Justice Gudu Walia’s refusal to recuse himself from a defamation case that another High Court judge, Justice Mpaphi Phumaphi, has launched against The Voice and four other defendants, including Leepile, who is cited as the fifth defendant.

The defamation case is a sequel to the ethnicity debate that gripped the country in 2001, largely provoked by newspaper articles that quoted from a paper in which Leepile critiqued the ethnical composition of both the Judiciary, and the Attorney General’s Chambers, which he found to be skewed in favour of the Kalanga.

Phumaphi is suing The Voice for P1 million, and Leepile for P850 000 allegedly for insinuating corruption, nepotism, and extremely reprehensible conduct on the judge’s conduct.

When the case got off two months ago, Leepile ÔÇô through his attorneys, Efan Khan and Mompoloki Mogobe, senior partners at Lerumo Mogobe Legal Practitioners ÔÇô moved an application for the recusal of Justice Walia on March 9 principally on account of what was described as “an enduring friendship” between the presiding judge and Justice Phumaphi. Leepile’s lawyers argued that he would not be given a fair and impartial hearing because Justices Walia and Phumaphi were not only colleagues, but friends as well. It was averred that the two judges had practised in the same division and worked together from the same premises in Lobatse, before moving to work together in Francistown; and that their friendship extended to the golf course.

The following day, Justice Walia dismissed the application with costs on the basis that Leepile had failed to place reasonable evidence before the court from which reasonable suspicion of bias could be inferred. This was followed by another application which Leepile filed for leave to appeal to the Court of Appeal, on March 12. Four days later, Justice Walia dismissed the application with costs, arguing that the circumstances ÔÇô as they were in the application for recusal ÔÇô remained based on hearsay, and had no prospects of success.

With that, the judge went ahead with the trial, and when it adjourned earlier this month, Justice Phumaphi had led his evidence-in-chief, and was under cross-examination by Khan.

Clearly dissatisfied with Justice Walia insistence to proceed with the matter, Leepile has since instructed his lawyers to make an ex parte notice of motion for leave to appeal to the Court of Appeal against the trial judge’s refusal for recusal. The notice of motion to appeal lists 10 grounds of appeal, among them being:

i. That the Court erred in ruling that Leepile’s application lacked sincerity as he knew from date of the first pre-trial (20 April 2008) that Justice Walia had been assigned the matter. He argues that he only became aware of reasons that led to his application for the judge’s recusal on the evening of 5 March 2009; and further that Justice Walia did not disclose at the pre-trial that he served with Justice Phumaphi at the Francistown Division of the High Court, or that the two have had a collegial relationship that has endured many years, as well as having played golf together on several occasions ÔÇô thus underscoring that the cordial relationship between the two judicial officers was not only professional, but personal as well.
ii. That the Court committed an irregularity by making credibility findings against Leepile, with respect to the sincerity of his application, which findings ÔÇô it is argued ÔÇô only add substance to his suspicion that the Court is likely to be biased against him.
iii. That the Court erred in disregarding the argument that, given that Justices Phumaphi and Walia are presiding judges in the same division in Francistown and given that they had social outings together, a suspicion of bias arises from Justice Walia presiding over the matter.
iv. That the Court erred in that it did not correctly apply the test of reasonable suspicion of bias as applied in comparable circumstances where recusal of a judge is an issue.
v. That Justice Walia committed an irregularity by regarding the application for recusal as an attack on his integrity.

Meanwhile, this week, Justice Walia dismissed another application ÔÇô this time from Justice Phumaphi’s lawyers ÔÇô which sought to amend the particulars of his claim by adding two additional paragraphs. The paragraphs deal with the publication of an article in the Botswana Gazette of 29 August 2001, authored by Leepile. The gist of the application was that by the Gazette article, Leepile confirmed the contents of his critique of the ethnical composition of the Judiciary and Attorney General’s Chambers, and sought to justify the paper.

However, Leepile’s lawyers opposed the application on a number of grounds ÔÇô among them being;
ÔÇó The delay in bringing the application.
ÔÇó Failure to offer an explanation for the delay.
ÔÇó Leepile suffering prejudice which cannot be cured by an order for costs.
ÔÇó That the amendment was driven by bad faith.
ÔÇó That the amendment sought to introduce a new cause of action.
ÔÇó That the amendment sought to introduce a cause of action which had prescribed.

Justice Walia ruled that generally, an amendment would be allowed if the other party would not suffer such prejudice as may not be cured by an appropriate order for costs. He concluded that there had been a substantial delay in Justice Phumaphi moving his application for amendment, and that the amendment sought would introduce a new cause of action.

“The greatest danger, as I see it and this has not been addressed by either party, is that by allowing this amendment, I may facilitate the opening of floodgates to any number of applications for amendment every time the plaintiff [Justice Phumaphi] becomes aware of the publication of another article in the same vein,” Justice Walia said, dismissing the application with costs.

Justice Phumaphi has instructed Collins Newman & Company’s senior partner, Parks Tafa.


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