Monday, March 30, 2020

DCEC investigating conflict-of-interest allegations against Court of Appeal judge

Good sources tell Sunday Standard that having earlier rejected a request to investigate Justice Lakhvinder Singh Walia of the Court of Appeal for alleged conflict of interest, decision-makers at the Directorate of Corruption and Economic Crime (DCEC) have had a change of heart.

DCEC has now formally started investigations to establish whether there was any conflict of interest in some cases that Walia, who has been too closely associated with Armstrongs Attorneys, handled both as a High Court and later as a Court of Appeal judge. As a High Court judge, Walia presided in a legal dispute between Tours of Africa (Pty) Ltd and Regent Insurance Botswana in 2017. Tours of Africa lost the case and by the time it appealed this judgement, Walia had been appointed CoA judge and got to sit in a panel of judge that heard the matter. Through engagement with the Registrar and Master of the High Court, Tours of Africa tried but failed to get Walia to recuse himself. Tours of Africa lost the case once more, at which point it submitted a formal complaint to DCEC, alleging conflict of interest on Walia’s part.

The outline of the alleged conflict of interest is as follows: Regent Insurance Botswana was represented by Armstrongs Attorneys, which employs Walia’s wife as personal assistant to the Managing Partner, John Carr-Hartley. Walia has himself worked at Armstrongs Attorneys before joining the bench and continues to use its services.

Sunday Standard learns that DCEC is also investigating a matter in which Walia came to be part of a panel of CoA judges in a case that pitted African Alliance and two of its former employees: former CEO, Don Gaetsaloe and Moarabi Mariri, a senior sales executive. African Alliance was represented by Armstrongs Attorneys. We also learn that some more cases of similar nature have been reported to the DCEC.

Rumours that DCEC were investigating Walia began swirling in November last year but later turned out to be false. A senior judge is said to have attempted to get DCEC to issue a public statement, denying that it was investigating Walia but was rebuffed. This time around, the Directorate is indeed investigating and the decision is said to have been influenced by more complaints about Walia’s perceived conflict of interest regarding association with a law firm he has a very long association with directly and through individuals associated with it. In the case of the latter, that relationship goes back at least four decades.

Armstrongs Attorneys was established by Neil Armstrong who, 40 years ago, represented Walia in a case in which the latter legally protested the reduction of fees he had charged for his services.

In early 1979, Walia participated as attorney in the provisional liquidator involving Tim Longden (trading as Segwana Liquor Distributors) and Koveya Holdings. At the time, Walia was managing partner of his own law firm, L. S. Walia Attorneys, which was based in Francistown. Koveya Holdings was owned by Bruce Chatten and Sam Koveya and the liquidation came after the disappearance of the former and death by suicide of the latter. The company owed Segwana, Botswana Liquor Manufacturers and Barclays Bank Botswana. The provisional liquidator was Allan Constable Smith and the judgement notes that the latter and Walia were very close: their offices were located on the same lot in Francistown and Smith had used Walia’s legal services in matters unrelated to the liquidation.

When the matter had been disposed of, Walia submitted a bill of costs to the Assistant Registrar and Master of the High Court, M.C. Motsemme, in February 1980. At the time she was Acting Registrar. The judgement notes that being new to the job and still trying to “find her feet”, Motsemme made a couple of missteps. A month earlier she had received a letter from Smith which in part stated that “I have perused the bill of costs from Attorney L.S. Walia, in respect of professional services undertaken at my request, in connection with the above liquidation, and I hereby confirm that the charge thereon is a fair and reasonable charge for the services rendered.”

The court found that the bill of costs had no references to dates, that “easily ascertainable” standard charges had been incorrectly stated, that the taxing master (Motsemme) had made no comments as was required and that while Walia had to appear before courts in Serowe, Francistown, Mahalapye and Lobatse where the liquidation proceedings were being conducted, “there was no query by the taxing master whether any of these journeys had been undertaken in connection with other professional business in respect of which the costs of the journeys would properly be chargeable.”

Four months later, Motsemme decision was overturned by the Registrar. The latter determined that that the bill of costs submitted by Walia had in fact not been taxed. The Registrar also wrote to both Walia and Smith to communicate the view that “the bill of costs had not only not been taxed, but that it was clearly inflated.” It was at this point that Walia sought an order declaring that the Registrar was functus officio (had no legal authority) to tax the bill again and that the original taxation remained in force. Walia was represented by Armstrong in a matter that came before Chief Justice Hayfron-Benjamin.

The application failed, with Hayfron-Benjamin ruling that “the attitude adopted seems to be that in the absence of any shareholders within the jurisdiction, any surplus appearing after full payment of all the creditors should be treated as liquidation bounty to be appropriated and shared by the applicant and his business client, the liquidator.” The court also determined that Smith had adopted the South African scales in computing his remuneration and arrived at the figure of P21 826, whereas the applicable Botswana scale would have yielded P7 437.

“There is no doubt that [Walia] was aware of this; a letter dated 19th May, 1980 from the Acting Registrar shows that it was the applicant who presented the liquidator’s fees to Registrar. [Walia], on his own behalf, presented an obviously loaded bill of costs totalling P7 108 which was later taxed by the Acting Registrar to less than half that figure on the 6th June, 1980,” says the judgement, which came out in 1981.

Two years later (1983), Armstrongs established Armstrongs Attorneys which Walia would later join and became senior partner in. It is unclear when his wife joined the law firm but she still works for it. It irks some that Walia retains the law firm as his attorneys while presiding over matters in which litigants are represented by those same attorneys. No wrongdoing against him has been proven, only discomfort about this close relationship with Armstrongs Attorneys has been asserted.

Based on what the current Registrar and Master of the High Court, Michael Motlhabi, has said, there appears to be no hard and fast rule of what should happen when a judge has to preside in a case in which his own attorneys are participants. In a press statement he released following conflict-of-interest allegations made against Walia, Motlhabi basically said that it is a judge’s prerogative whether or not to recuse him/herself from a case “taking into consideration circumstances which create a reasonable apprehension of bias on their part.” He also referred to the Bangalore Principles of Judicial Conduct which establishes standards of ethical conduct for judges.

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