Saturday, October 23, 2021

Justice Mothobi and state lawyer cross swords over judges’ conditions of service

An exchange ensued this week between Gaborone High Court Judge Michael Mothobi and senior attorney Matlhogonolo Phuthego of the Attorney General Chambers over terms and conditions of employment for judges. 

The controversy on the welfare of judges arose from a case in which Court of Appeal Judge Monametsi Steven Gaongalelwe has approached the court over an audit report suggesting that he drew housing allowance he was not entitled to. He is demanding that the report as it relates to him should be set aside. Gaongalelwe was listed on the report as owing government 63 000 Pula (P63 141.00) housing allowance.

During the proceedings this week, Justice Mothobi and Phuthego locked horns on whether a hotel that Justice Gaongalelwe was accommodated in at Francistown constituted free accommodation as per terms of conditions of his employment as a judge. 

“How can a hotel, a room at Marang Hotel be a rent free house; it is a room not a house,” Justice Mothobi informed Phuthego to which the latter responded “It is a rent free house because he did not pay rent, he was staying for free (at the expense of government).” 

But Justice Mothobi was not convinced by Phuthego’s response and argued that “we are not talking about lowly placed civil servants” but judges who form part of the three arms of government. 

“It is the same way when you cannot put up a minister in a hotel and then say he is not entitled to allowance,” said Mothobi adding that a hotel is a temporary accommodation. 

But Phuthego dug in his heels and insisted that Justice Gaongalelwe was not entitled to the housing allowance. 

“This is a simple matter. The issue is whether he was entitled to an allowance or not. We are saying he was not because he had free accommodation. This is public and tax payers’ money and we believe that he should reimburse the government,” said Phuthego. 

He also rejected Mothobi’s assertion that accommodation in a hotel at the expense of government does not amount to a free accommodation. 

“Perhaps then this calls for what a definition of a house is if we cannot equate free accommodation at a hotel for a year to a rent free house,” he said. 

Mothobi insisted that “My own understanding of a rent free house has nothing to do with a hotel room. The requirement for a judge is that you will be supplied with a fully furnished house.” 

The judge further added that “You didn’t supply a house but a room in a hotel. How can a hotel room be a government house; if not given a rent free government house then you are entitled to an allowance.” 

“The way I see it, you either give a judge a suitable accommodation or pay an allowance. Conditions of employment are quite clear. One of the conditions of employment of judges is what class of vehicles they are entitled to and we learnt recently in the press that some of them are not benefiting from what they are entitled to,” said Justice Mothobi.

Earlier on, Justice Gaongalelwe’s lawyer, John Carr-Hartely of Armstrong Attorneys had argued that the author of the audit report, Maria Mokgwathi from the Ministry of Defence, Justice and Security should have taken into consideration a letter written by Master and Registrar of the High Court, Michael Motlhabi in which he agreed with Justice Gaongalelwe that he should be removed from the report. 

He argued that Motlhabi was Mokgwathi’s principal and therefore she should have heeded his advice to remove Gaongalelwe from the audit report. 
The letter was reportedly addressed to Permanent Secretary in the Ministry of Finance absolving Gaongalelwe of any wrong doing. 

Mothobi also stated that the letter was copied to Chief Justice Maruping Dibotelo who did not take action against Justice Gaongalelwe. 

“Why didn’t the Chief Justice and the Registrar and the Permanent Secretary come forth with written evidence? Why is it that there was no action on their part? When we talk about rationality we cannot avoid these questions; the fact that the Registrar who is the accounting officer came out in the open and agreed with the Applicant (Gaongalelwe),” he said. 

But Phuthego insisted that Mokgwathi, in response to Motlhabi’s letter, had advised the Registrar that he and Gaongalelwe were wrong in thinking that he was entitled to continue receiving a housing allowance while he was at the same time staying in the hotel at Government’s expense.

 

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