The Court of Appeal last month stopped short of confirming earlier reports by Sunday Standard that a Court of Appeal verdict was leaked to the Directorate of Intelligence and Security Services (DIS) and former President Lt Gen Ian Khama before it was delivered in an open court.
This was in a case in which the DIS had appealed a High Court decision denying them a warrant to search State House 4, Khama’s official residence where they believe he has kept multiple illegal firearms and ammunition.
The leaked judgement was delivered in an open court on 18th November 2022.
Justice Isaac Lesetedi of the Court of Appeal three weeks ago said the judgments were ready prior to 18th November 2022. He revealed that once the judgments have been handed down to staff to photocopy and collate, the risk of leakage is enhanced.
In what is probably the biggest violation of the High Court confidentiality ever, hours before the Court of Appeal could announced its verdict on 18th November 2022, the two parties to the politically charged legal dispute appeared to have learned through back channels that the judgement had been made in favour of Khama against the DIS.
The leak of the Court of Appeal majority opinion which arose from a split decision stocked growing fears that Botswana’s judiciary is politicized.
Hours before the Court of Appeal made it verdict on 18th November 2022, Sunday Standard published an online story in which a source close to the former President claimed that they had been tipped by a source that judgement had been decided in favour of Khama against the DIS.
Quizzed by the Sunday Standard on the allegations, a few hours before the Court of Appeal delivered the judgement, Khama would not comment on the claims. He however told the Sunday Standard that it was apparent that information about the outcome of the case had been leaked to the DIS.
This was after the DIS proceeded to search Khama’s official residence on 17th November 2022, a day before the CoA could pronounce judgement. In an interview, Khama told Sunday Standard that, “It is true they went in there last night until now. No search warrant was presented. As the judgement is being delivered today it is surprising that that the DIS did not wait. Clearly they were given prior knowledge of the outcome which is typical.”
In another incident suggesting that the DIS was aware of the Court of Appeal verdict, shortly before the Court of Appeal could deliver judgement, the spy outfit made an attempt to withdraw its appeal. Their attempt was however thwarted by the Court of Appeal.
Giving reasons three weeks ago why the Court of Appeal did not entertain the notices of withdrawals, Justice Lesetedi revealed that, “by the time the purported withdrawal was filed the judgments had been photocopied and it may well have been leaked as some social media pages seemed to foreshadow.”
Justice Lesetedi accused the DIS of attempting to “frustrate” the functions and duties of the Court.
He said in the present matter the judgments were ready prior to 18th November 2022. He revealed that once the judgments have been handed down to staff to photocopy and collate, the risk of leakage is enhanced.
“By the time the purported withdrawal was filed the judgments had been photocopied and it may well have been leaked as some social media pages seemed to foreshadow. It would therefore be inimical to the interest of justice for a party who may get wind that a judgment which is ready for delivery may be unfavourable,” he said.
He said it was for the above reasons that the President of the Court Justice Tebogo Tau pronounced the court’s decision to disregard the purported withdrawal in public interest.
In his ruling (with three judges concurring), Lesetedi was critical of how the DIS sought “to preemptively withdraw the appeal in order to frustrate the pronouncement of not only the outcome but also the reasons which the court bases its decision upon and the consequences such a judicial pronouncement may carry.”
Lesetedi unleashed a barrage of accusations saying the Court would not cow down to DIS by sanctioning abuse of its own process.
“To permit that process will be to allow an abuse of process as no interest of justice is served in allowing a party to preempt the delivery of a judgment by withdrawing an appeal at the court’s doorstep of the intended delivery of the judgment,” the judge said.
Citing a decision of the Court in the Sun International Botswana (Pty) Ltd v Fair Deal Botswana (Pty) Ltd, Lesetedi noted that “procedures of court should not be used to achieve injustice.”
“More importantly, it is in the interest of justice that once a court has prepared its judgment and is ready to deliver it, the affected parties and the public be entitled to know that decision and the reasons upon which it is reached,” said the Judge.
He added that this is more compelling in appeals such as the present. “These were public interest cases involving alleged criminal conduct on the part of a retired State President as well as the remit of certain powers of the Directorate on Intelligence and Security Services, an intelligence organ of the state, among other issues,” said Lesetedi.
He said the cases attracted substantial media coverage both at the High Court and on appeal.
“Once the appeals were argued, it was in the public interest as well as jurisprudential dictates that judicial decisions thereon be made known for it is fundamental to the judicial process and fair administration of justice that once a matter has been finally argued before it, the court is called upon to deliver its verdict and the reasons therefor.” he said. He said “It is a vital function and duty that should not be easily frustrated.”
He said the “Procedure of this Court of having judgments signed and photocopied ready for distribution prior to the date of hearing is well- established, going as far back as one can recall.”
“These were complex and important cases being heard by a full bench of five. That involved a lot of research and drafting with judges sometimes spending long hours often late at night preparing and reading,” he said. According to the Judge; “All that cannot be brought to naught on the day of handing down of judgments simply at the instance of one or more of the parties with a last-minute one- liner that “[t]he appellant(sic) hereby withdraws its appeal with costs.”
To permit that, Lesetedi observed, is “to sanction an abuse of court process.”
Justice Lesetedi said, “It is also startling that the appellants'(DIS) attorneys noted that the judgments are silent on why the notices were disregarded. They are experienced legal practitioners who have appeared before this Court on many occasions and ought to be aware that upon conclusion of the appeal hearing process, judgments of this Court on reserved matters are prepared in advance of delivery,” said Lesetedi.
He said the reasons for disregarding the purported notice of withdrawal could therefore not have been set out in those judgments, the notices of withdrawal appearing literally minutes before the time allocated for delivery.
He said one of DIS’ legal representative was in court when the decision on the handing down of the judgments was made and he ought to have noticed that the bundles of copies of those judgments were already at hand when the issue of the propriety of the withdrawals was heard.
“The decision on the purported withdrawals was summarily made and there could be no well-placed expectation to find, in the main judgments, the reasons for disregarding those purported withdrawals,” he said.
In the weeks leading to the apparent leak, the Court of Appeal seemed to be having difficulties dealing with the controversial case and decided to postpone judgement.
This was after Khama instructed his lawyers not to participate in appeal cases by the Directorate of Intelligence and Intelligence (DIS). The panel led by Court of Appeal President Tebogo Tau resolved to continue with the case and hear oral arguments after Khama’s lawyers pulled out of the Court of Appeal hearing.
The consolidated judgement were scheduled to be delivered on 4th November with other appeal judgement for the October 2022 session. The Court of Appeal however backed off from delivering the judgments.
In a letter addressed to the Directorate of Intelligence and Services (DIS) lawyers Thapelo Attorneys and Khama’s Lawyers Ramalepa Attorneys, the Registrar of the Court of Appeal Nomsa Moatswi indicated that “kindly be advised that the judgments in the above referred matters will not be delivered on the 4th November 2022 as originally communicated to the parties.” The Registrar added that, “Rather the delivery of the judgments is postponed to a date to be advised to the parties, such date being before the commencement of November 2022 Application,” she said.
According to Moatswi’s letter: “The postponement of the delivery of the judgments is necessitated by the need for more time as the matters involved complex matters and the appeals were heard by a full bench of the Court of appeal.”
Sunday Standard has established that the consolidated judgments were scheduled to be delivered on 4th November with all other appeal judgments for the October 2022 session.
In an earlier press statement, Khama’s lawyers stated that, through them, he addressed a formal letter, advising her, among other concerns, that he has it on good authority and reliable sources that decisions in the consolidated appeals had already been made, adverse to him, and that the hearing of the appeals would be a mere formality.
“President Khama requested that a panel of independent judges not affected by these allegations, be assigned to hear the consolidated appeals, so that his reasonable apprehension that he will not receive justice is addressed,” the lawyers said.
The statement says, on the same date, the Registrar of the Court of Appeal responded to President Khama`s letter, advising that the Judge President directs President Khama to deliver formal and properly motivated applications for recusal of judges of appeal ahead of 14 October 2022.
“On 12 October 2022, President Khama addressed another letter to the Judge President, advising her that he is unable to deliver recusal applications because he does not have a panel or list of judges who will sit in hearing of the consolidated appeals,” reads the statement. It says Justice Tau did not respond to this letter. The statement says Khama decided that if his concerns about the apparent lack of impartiality of the panel of judges who will sit in hearing of the consolidated appeals is not meaningfully addressed, he will not participate in a sham of a hearing, when it is clear to him that decisions against him have already been made. The Court of Appeal decided to proceed with the hearing of the consolidated appeals, after considering President Khama`s concerns, and dismissing same.
“President Khama`s legal team respectfully asked to be excused from today`s sitting of the Court of Appeal, after the decision of the Judge President, not to address President Khama`s concerns aforesaid was announced in open court,” the statement says. The lawyers indicated that Khama “has consented to us informing the people of Botswana and all those who are interested in the independence of the judiciary, reasons why the consolidated appeals were heard in the absence of his legal team, because he considers this to be a matter of public interest.”
