The circular by the Chief Justice has, to borrow an English expression, stirred a hornet’s nest. A lot has been written in the local private media about the circular, including reactions of some of our judges, trade unions and private practitioners. I have had occasion to read the circular and the reaction of judges at Lobatse and realized that we are here dealing with a wound that has been festering for some time.
A look at the Chief Justice’s circular and that of the judges of Lobatse shows that both sides are agreed on the existence of the practice of forum shopping. They only differ in regard to the reasons for its existence. In the view of the Chief Justice it arises out of a need for placing the matter before a judge who is favourable or sympathetic to one’s cause. In the view of the Lobatse judges it arises out of poor service delivery.
The Chief Justice goes a step further to suggest a possible method of how forum shopping is implemented. He suggests that perhaps those engaged in forum shopping bribe registry staff. The Lobatse judges have taken this suggested method to heart and want the Chief Justice to provide evidence. With due respect to the Lobatse judges they cannot request the Chief Justice to provide evidence to prove the correctness of his suggestion.
The Chief Justices circular also raises a hope that the judges who are said to be sympathetic to cases of attorneys who practice forum shopping are not being bribed. Again with due respect to the Lobatse judges they cannot request the Chief Justice to provide evidence of judges who are being bribed. He has not said any judge is being bribed.
The Lobatse judges seem to me to have reacted to the part of the circular that does not level any accusation at any judge. At best they should ask the Chief Justice to provide names of judges who in his words “are said to be sympathetic to cases of attorneys engaging in such sordid practice.”
Our judges and the trade union movement have made a jump from the issue of forum shopping and its mechanics to conclude that the Chief Justice has accused some judges of corruption. One would have expected our judges to tread with restraint. The remark by the Chief Justice in regard to the possibility of judges taking bribes is consistent with the presumed integrity of judges arising out of the oath of office that they take. If one is aware of this presumption then one can contextualize the Chief Justice’s remark. The basis of the Lobatse judges’ reaction is this very same presumed integrity. It is incredible that they have a problem with the Chief Justice effectively saying he hopes that this principle is not being violated in the process of implementing forum shopping.
I am not party to communication reported in the media that some law firms have received correspondence accusing them of forum shopping. I also do not have copies of correspondence supposedly written to some of our judges accusing them of taking part in the practice but I have read in some papers that the trade union movement seems to think that it is a target of the accusation of forum shopping and that it is contemplating legal action if the Chief Justice does not provide evidence of corrupt judges. Given that the Lobatse judges do not dispute the existence of forum shopping, and that the trade union movement itself does not have a problem with forum shopping and that the Chief Justice has not really accused any judge of corruption I wonder what their case will be about.
There have been calls for the Chief Justice to apologize if he cannot produce evidence of corrupt judges. In my view such calls are misplaced because the Chief Justice has merely reasserted a long standing principle that our Court of Appeal has upheld. He has not accused any judge of corruption. He cannot therefore be called upon to produce evidence of that which he has not alleged.
I am well aware of the fact that when one reads a document one must also read between the lines. This however does not suggest that one has to manufacture issues that are not raised in the document. At best the Chief Justice has suggested that some judges are known to be biased in particular matters by some lawyers. These lawyers then engage in efforts to ensure that their matter is heard by a particular judge. We would be fooling ourselves if we pretended that lawyers do not necessarily know the inclinations of our judges. I read somewhere that successful attorneys know the judge and not the law. Does this expression suggest that a judge is corrupt?
It seems to me that the Lobatse judges have a problem with the Chief Justice’s management style. They also believe that he has singled Lobatse out as a seat of corrupt practices. I believe they are being a bit unfair. As the administrative head of the judiciary the Chief Justice clearly states in his circular the reason for the change in the originating process. Effectively the judges are accusing the Chief Justice of fabricating a reason whilst knowing fully well that his real motive is to victimize them. In this instance it is the Lobatse judges who are effectively saying that the Chief Justice is acting in a dishonourable manner.
What advantage accrues to the Lobatse judges from having cases originated at Lobatse if we have a case management system that allocates judges? If the station where the process originates has some advantage for the judges based at that station then something is wrong with the case management system.
In my view the Lobatse judges must return to work. The Chief Justice has not accused anyone of them of being forum shopped. He has merely said that the practice continues. He has proposed steps to try to stop the practice. It would be strange if a step intended to stop a particular unacceptable practice can be relied upon to look back and justify none continuation with matters at court. There is a presumption that our judges have integrity, in the absence of evidence that they are not, they cannot take a step that suggest that they want prove that they do not have integrity. I think our judges have misread the issues involved.
The issue though having set out what I believe is the correct position is what step should be taken? It is highly unlikely that the Lobatse judges will agree with what I have set out above. In the event that they agree with what I have set out above the issue is how does the chief Justice bring them back into the fold? This is where we now need the Chief Justice’s leadership.
It is quite clear that the Lobatse judges have certain gripes with the Chief Justice. There is a need for the issues that divide the parties to be ironed out and for the judiciary to act as one. I do not hold the view that the Chief Justice’s circular has damaged the reputation of our judiciary. It is the conduct of the judiciary in the face of the circular that may damage the integrity of the judiciary. The issue that the Lobatse judges raise about service delivery is the one that is damaging to our judiciary.
We cannot have supposedly urgent matters taking months to be resolved. We must also look at the issue of judges who have spent their entire professional lives handling criminal matters now presiding over complex civil matters. It is perhaps time we looked at specialized courts or modify the case management system such that judges are able to say if they do not believe they can handle a complex civil or criminal matter such that it is assigned to another judge. Much as I suggest this, I can feel a chill down my spine, because we already have some lazy judges, and they may take advantage of this. Eish go thata.
I think the Court of Appeal was a bit harsh in its remarks regarding the High Court’s treatment of the Ngwaketse inheritance case. I am in full agreement with the Court of Appeal position that where possible a matter should be determined without making it a constitutional issue, but the tone of language that the court used was in my view harsh. I was also surprised that Justice Motswagole in the face of the Court of Appeal remarks still felt free to make constitutional issue remarks about the sentencing regime. One wants brave judges but at the same time one wants judges to act in a manner that suggest that there is not too much variance on legal principles. Effectively our judiciary is presenting a divided face and that is not good.
The Chief Justice must lead. The starting position is to ask some of our judges who quite obviously are out of their depth to resign. I think the Lobatse judges are effectively saying the Chief Justice is protecting unproductive judges. I know that private legal practitioners are also concerned about unproductive judges. The Chief Justice must do something about these unproductive judges.
