Saturday, December 3, 2022

Judge grants AG right to appeal against Katlholo

High Court Judge Reuben Lekorwe has granted the Attorney General leave to appeal to the Court of Appeal (CoA) in an application against suspended DCEC Director General Tymon Katlholo.

The Attorney General (AG) is representing the Ministry of Justice and the Directorate of Intelligence Services (DIS) while Monthe Marumo and company represent Tymon Katlholo.

The Applicant, the Attorney General, representing the Ministry of Justice and the Directorate of Intelligence and Security Service (DIS), brought the application against Katlholo, the Director General of the Directorate on Corruption and Economic Crime (DCEC’), seeking an order for leave with costs, to appeal to the court of appeal against the judgment delivered by the court on the 3rd of June 2022.

According to court papers, the judgment, not only was the respondent,(Katlholo) a public officer, adjudged to be reposed with locus standi to litigate on behalf of the DCEC in the applicant’s stead but also, he and the DCEC were granted an interdict against the DIS and an anton piller type of an order was, as well, granted in their favour.

The relief was granted on the backdrop of a fierce contest from the applicant that the respondent had no locus standi to bring the application for an interdict on behalf of the DCEC or on his own behalf either in his official or personal capacity. The applicant had also put forward a spirited challenge that there was neither a cause for an anton piller order nor for an interdict, even an interim one.

In his judgment, Lekorwe noted that the respondent is opposed the application. 

He also noted that the Attorney General  has prefaced his averments by a general submission that although some of the aspects of the judgment sought to be challenged before the Court of Appeal are final in nature, leave to appeal is required where locus standi is an issue.

“However, reference to a few prominent one indispensable, applicant avers that the question that was submitted before this court, namely; whether one government department can sue another of the same government, is a novel one which calls for an authoritative statement by the apex court in Botswana. Secondly, the applicant avers that the court fell into an error in conferring locus standi on the respondent when it has no power to in terms of the law. Thirdly, the applicant intends to argue before the Court of Appealthathiscourt misconstrued the application that was brought before it; that is, in finding that it was for an anton piller relief when it was not. Lastly, it is averred that this court erred in granting the respondent an interdict when the requirements therefore were never met by the respondent,” said Lekorwe

“It is clear from court papers that the respondent, as noted already, resists the application. The respondent is of the view that none of the points of law that were argued by the applicant, including the one relating to locus standi, are of any merit,” said the judge.

An interim interdict, as its name suggests, is a temporary or provisional order issued pending the determination of the main action.

“My determination on the applicant’s locus standi is not susceptible to alteration by me or any subsequent judge of cognate jurisdiction who will be seized with the action or proceedings in due course, the efficacy of which has been preserved by the interdict. To this extent, the interlocutory order is therefore appealable. The application therefore succeeds and the order on favour of DIS is granted,” said judge Lekorwe.

He said the applicant is granted leave to appeal the judgment of this court delivered on the 3rd June 2022 to the Court of Appeal

He also ordered that a motion under certificate of urgency seeking orders for contempt of court by three top DCEC officials being Acting Director General Tshepo Pilane, Priscilla Israel (Deputy DG) and Edwin Batsalelwang to be committed to prison for a period of 30 days or such time as the court may deem appropriate is also granted leave to appeal to the Court of Appeal for further determination.

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