When the March 23, 2016 meeting of the Casino Control Board convened, the chairperson, Thabiso Tafila, did what he is legally required to do.
Three Partners Resorts, the party objecting to a casino licence application by Moonlite Casino, retains the legal services of Minchin & Kelly Attorneys where Tafila is a senior partner. While offering to recuse himself from the proceedings, Tafila indicated that if he did so, the meeting would become inquorate and the matter would have to be heard at a later date. Another complication was that the CCB would cease to exist in only eight days, ushering in an altogether new dispensation.
“In response, both parties were of the view that the chairperson had been transparent and they stated that they trusted that he would be objective despite the involvement of his law firm,” read minutes of the March 23, 2016 meeting.
However, when Justice Dr. Zein Kebonang wrapped his mind around this particular aspect, he determined that Moonlite didn’t really have much of a choice.
“The comment directed at the applicant about the lack of quorum if the chairperson recused himself and the attendant delays were, in my view, clearly operational in the mind of the applicant at the time when it was asked to make an election. Under these circumstances, the applicant had no real choice but to have the matter proceed. It could not have realistically pressed a claim of bias without losing time and delaying the hearing on its own application. Similarly, Minchin & Kelly Attorneys as a firm, could never have been expected to express doubt or a vote of no-confidence on its most senior partner. Circumstances had simply conspired against the applicant,” reads Kebonang’s judgement.
An elaboration of the latter assertion is that Tafila’s seniority as a Botswana attorney and his law firm’s pre-eminence were reason enough to keep top of mind the fact that the perception of bias would be too high if Tafila participated in the proceedings notwithstanding his disclosure of a potential conflict of interest.
“As a partner in Minchin & Kelly, Mr. Tafila must be considered to have had through his firm, a direct, personal, substantial and pecuniary interest in the case. He should therefore have simply recused himself and not worry about any attendant delays to the applicant that would arise or have been occasioned by his recusal,” the judgement says.
The judge added that while he has no doubt that Tafila is a “morally upright” person, his opinion on the matter is irrelevant: “What is critical is whether an average person would have considered that Mr. Tafila would be neutral or whether there was potential for bias.”
In the final analysis, the court set aside the proceedings of the March 23 meeting.