If both parties keep to schedule and keep their promises, the hot-potato case that has left the hands of seven High Court judges calloused will finally go ahead. When that happens, a High Court judge will be asked about his personal finances, his decision to hear a bail application case from the magistrate court before obtaining the record of proceedings as well as about his personal relations with the lawyer representing the bail applicant. The party raising all these questions vows that “When my averments are proven at trial there shall be unhappy consequences.” The litigants in the matter are Justice Dr. Key Dingake and former Debswana Diamond Company Managing Director, Blackie Marole, on one side and a former Debswana employee, Donald Gaetsaloe, on the other. Dingake and Marole allege that Gaetsaloe, who is now the Chief Executive Officer at Africa Alliance, defamed them through a newspaper article. Last year, Justice Dr. Zein Kebonang granted Gaetsaloe permission to amend and refile his court papers within a defined period of time.
The amendments were done but filed way past the deadline. The plaintiffs (Dingake and Marole) took issue with that and when the matter came up for hearing last Monday, their lawyer, Tshepiso Mpusetsang-Nape invoked a High Court rule that says court papers must be filed within the stipulated period of time. However, Kebonang pointed out to her that her clients had themselves filed out of time. “What is good for you must also be good for them,” said Kebonang referring to Gaetsaloe and his lawyer, Itumeleng Segopolo, who elaborate reasons for the late-filing in their papers. The judge queried why he should throw out the defendant’s pleas and added that while he was mindful of the rules, ultimately the matter was about dispensation of justice. He expressed “frustration” that having gone through the record of proceedings, he was concerned by what seemed to be proclivity by both parties to drag the issue on and on. However, after Segopolo and Mpusetsang-Nape had tussled before the judge for more than an hour, all parties managed to establish common ground on the contentious issue, even collaborating on crafting the language of the order that was subsequently issued.
In terms of that order, the defendant is given permission to amend his plea and the plaintiffs will have 14 days to respond to it. What Gaetsaloe has placed before court is correspondence between Segopolo & Company and Collins Newman & Company which is representing Dingake and Marole. The essence of this matter is an allegation made by Gaetsaloe that as Debswana MD, Marole facilitated a P1. 5 million bribe that was paid to Dingake in order that he could rule in the mining company’s favour. To back up his case and communicating through Segopolo, Gaetsaloe wanted Dingake to reveal whether he was in arrears on his bank loans. The response from Collins Newman & Company was that the question was irrelevant because it related to a matter between the judge and his bank.
The counterargument from Segopolo was that the information sought would reveal whether Dingake was under any financial pressure that would have made him vulnerable to financial influence. Dingake’s explanation about the P1.5 million in contention is that it was the proceeds of a house that he had sold to the Minister of Infrastructure Science and Technology, Nonofho Molefhi, on May 7, 2009. Gaetsaloe’s contestation is that this declaration was false because Dingake never received such money from Molefhi, on or after the stated date of sale and that the only money that the judge received from the minister (or his agents) was actually P1 250 000 which was transferred into bank account in May 2008 and not declared in the judge’s tax returns for that year.
This declaration alleges tax evasion. Another issue relates to a 2008 article that was published in Mmegi under the headline “Mhlauli’s release on bail triggers ethical quandary.” Elvidge Mhlauli, a former Permanent Secretary in the Ministry of Local Government and Lands (as it then) was found guilty of abuse of office by a Gaborone magistrate court and he applied to the High Court for bail. At that point, the lower court had not yet submitted the record of proceedings to the High Court but the case (in which Mhlauli was represented by Kgalalelo Monthe who happens to be Dingake’s first cousin) went ahead nonetheless and bail was granted. Dingake’s main contention in the defamation case is that his good character has been tarnished. Conversely, Segopolo is contending that the Mhlauli matter portrayed the judge in extremely bad light and that he never publicly dispelled negative perceptions around his handling of the matter. Given the opportunity to give his side of the story at the time, Dingake said he was busy.
However, Mmegi quotes the then Chairperson of the Law Society of Botswana and current Leader of the Opposition, Duma Boko, as saying that “there is nothing in the legal system of Botswana which compels the recusal of a judge in a situation where issues of conflict may arise concerning his or her handling of a case.” High Court rules (Order 20, Rule 5 to be precise) dictate that litigants against whom an allegation has been made must respond directly to such allegation. At last Monday’s hearings and before the consent order was issued, Segopolo invoked this provision numerous times to make the point that the plaintiffs were being evasive. When the consent order was being drafted, Segopolo successfully lobbied for compliance with Rule 5 as well as the preceding one (Rule 4) which says that a litigant must deal with every allegation in a specific manner by admitting, denying or stating that he has no knowledge concerning it, or confessing and avoiding it. Compliance with these rules means that Justice Dingake will have to respond in specific terms to Gaetsaloe’s allegations about the P1.25 million and evading tax.
There is a tactic in boxing called rope-a-dope which takes the form of a wily boxer lying against the ropes and letting his opponent drain his energy by punching himself out. The rope-a-dope made its international debut in 1974 when Muhammad Ali used it to spectacular success against George Foreman in the “Rumble in the Jungle” fight in Zaire. Not once did Segopolo use the term but earlier during the hearing when he was still arguing with Mpusetsang-Nape over technical points, he suggested that the former’s clients were applying the rope-a-dope. The lawyer precisely said that the plaintiffs were dragging the case in order to drain his client’s finances. When the Monday hearing ended, the matter was given the all-clear with no order as to costs.