A freaky glitch in Botswana’s judicial system has messed up more than 200 litigants, who have spent more than P30 million pursuing justice.
The Judicial Services Commission (JSC) which for years has closed its eyes and ears to complaints about Justice Michael Mothobi’s slackness finds itself saddled with an unprecedented crisis.
The Law Society of Botswana (LSB) was this week fuming that for a long time the JSC has been protecting the bungling judge.
The former judge, who retired ostensibly on ‘medical’ grounds recently, reportedly left the bench with more than 100 pending judgments.
Those close to the Judiciary believe Mothobi was forced to retire as a result of an avalanche of complaints about his poor performance especially in relation to his failure to deliver judgments on time.
Instead of taking action against Mothobi, the JSC is believed to have given him the option to jump, escaping possible disciplinary action.
The LSB’s open letter to Chief Justice Terrence Rannowane makes reference to the complaints against Mothobi.
“Numerous complaints had been raised in respect of his inefficiency and nothing was done about these complaints. Rather than set an example by taking stern disciplinary against him, he was allowed to retire on “medical” grounds without having delivered the outstanding judgments.”
The letter says litigants who had expended vast financial resources running trials and arguing applications before Mothobi were nonchalantly informed through a letter from the Registrar that their matters will start from the beginning.
“There was not the slightest hint of an apology or regret from the Administration of Justice for the huge inconvenience to the public occasioned by allowing Mr. Mothobi (sic) to retire on ‘medical’ grounds.” LSB says the “huge inconvenience” to litigants brought about by the retirement of Mothobi would have been avoided if the numerous complaints raised against him had been given the attention they deserved. We hope that in future complaints about non-delivery of judgments will be promptly attended to in order to avoid judges accumulating undelivered judgments spanning several years. Mothobi retired with immediate effect in August this year while serving notice. He was expected to serve until end of September 2021.
Mothobi, Sunday Standard was told at the time of his retirement, was being investigated by the JSC for similar charges to those alluded to by the LSB.
He appeared before the JSC in August which appearance may have influenced his decision to retire.
In a statement announcing his resignation Secretary for the Judicial Service Commission Juliana Dube said Judge Mothobi had resigned on medical grounds with immediate effect and that the cases pending before Mothobi would start de novo (afresh).
“This statement confirms that indeed there are pending judgments and disposal of cases before justice Mothobi,” the statement said.
The LSB has on numerous occasions during opening of the Legal Year kept reminding government that the society has noted with concern the delayed delivery of judgment and disposal of cases.
As far back as 2014, outgoing Appeal Court judge President; Justice Ian Kirby publicly slammed Justice Mothobi for delays in delivering judgments. Passing judgment in an appeal in which a divorced couple Dr Michael Akerele and his erstwhile wife Dr Ruth Moampe had a dispute over a company they owned jointly while still married, Justice Kirby complained that Justice Mothobi’s delay in delivering judgment risked eroding the public confidence in the courts. It emerged then that Justice Mothobi issued an order to make the provisional liquidation of the estranged couple’s company final and for two years sat on the reasons of his order, making it difficult for the appellant to lodge an appeal.
Justice Kirby pointed out that, “on 21 February 2014 (two years after the issue of the order and apparently after the intervention of the Chief Justice” justice Mothobi finally handed down his reasons for making the provisional liquidation of the company final. Justice Kirby charged that, “such delays are unacceptable, extremely prejudicial to litigants and undermine the constitutional imperative that cases are to be heard with reasonable expedition. Such delays are inconsistent with the values expected of the office of the judge of this republic.
They tend to diminish public confidence in the ability of our courts to deliver justice speedily. Unfortunately this is not the first time that this court has had cause to draw attention to lapses of this kind. The same problem has arisen in a number of cases. He cited the case of Premier Properties vs. Mogobe Incorporated, saying “although in that case the delay was far shorter, it also caused unfair prejudice to the prospective appellant.” Justice Kirby further stated:
“I would recommend with respect that the honourable Chief Justice consider charging his Rules Committee with the task of drafting a new rule, perhaps along the lines of Rule 6(2) of the Court of Appeal Rules; to require timeous delivery of judgments and reasons for decisions already made.” This was not the first time Justice Mothobi was censored by the Court of Appeal for delays in delivering judgments. Earlier, Justice Isaac Lesetedi of the Court of Appeal called for administrative action against Justice Mothobi for delays in delivering judgements.
This followed a matter in which Justice Mothobi sat on a case for more than two years without delivering judgement and about 15 months before he gave reasons for an order he had issued in the same case. This was in a matter in which Jamal Trading Company had appealed to the Court of Appeal for an interpretation of an order Mothobi had issued over execution of immovable property of Doves Funeral Parlour.
Delivering judgement over the appeal, Lesetedi said, when the matter was heard at the appeal, both parties complained of slow pace at which Mothobi dealt with the case. He said Jamal Trading Company lawyer asked the court to remit the matter to the High Court if the appeal fails and be allocated to a different judge.
Lesetedi noted that Mothobi stayed for 15 months before furnishing reasons for an order granting leave to appeal.
He said there was need to address complaints by the litigants administratively lest the integrity of the “judiciary be sullied by perceptions of inefficiency.”
Lesetedi said they had been told that the parties have even written complaints to the Chief Justice Maruping Dibotelo expressing their concern at the pace at which Mothobi was handling the matter.
“Before us, it was pointed out, for instance, that although the interdict application was brought on urgency in February 2011, up to date no rule nisi has been issued and that the parties are in a state of uncertainty several years after the dispute arose. If there is merits in these complaints, there is need to address the complaints administratively lest the integrity of the judiciary be sullied by perceptions of inefficiency.”
Lesetedi then ordered that the matter be remitted back to High Court and be placed before another judge so that it may be expeditiously dealt with. He said they were told that both parties are unhappy at the slow pace at which Justice Mothobi dealt with the case.
