Tuesday, October 19, 2021

Justice Tafa jabs at Justice Kirby

Lobatse High Court Judge Abednego Tafa last week took a swipe at the President of the Court of Appeal Ian Kirby following a statement by Justice Kirby postponing the session of the Court of Appeal.

Kirby issued the statement following a judgement in which Tafa struck down Section 4 of the Court of Appeal which gives the State President the power to prescribe the number of judges of the Court of Appeal, declaring that only Parliament is constitutionally empowered to do so.

Responding to Kirby’s statement, Tafa said “it is to be noted here that no reason is given why it would not be practical for the application session to proceed.”

He added that “I say so because it is a notorious fact for which no evidence is necessary, that application sessions have always been dealt with by three resident justices of the Court of Appeal and not by the full bench.”

Tafa’s observation follows an appeal by the State in a case in which the National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCGPWU) successfully challenged President Ian Khama on his appointment of the CoA Judges. The State filed an application before Justice Tafa to stay his order pending a final determination by the Court of Appeal.

“More often than not, only one judge sits to determine an application of that sort. However, the court has first to quorate i.e. with no less than three justices. There is no reason why the President of the Court of Appeal could not enlist the assistance of two ex-officio judges of the Court of Appeal i.e. High Court judges many of whom are highly experienced and have, in the past, sat alongside justices of the Court of Appeal.”

Tafa also noted that Kirby’s statement was made before a decision had been made to appeal his judgement.  “He (Kirby) seems to have made up his mind that there would be an appeal yet he gives the impression that the Attorney General who after all is the principal legal advisor to all the applicants (president of Botswana, Judicial Service Commission, Speaker of the National Assembly) is yet to decide the way forward. One may ask, what would have happened had the Attorney General decided to not appeal. Would the suspension or cancellation of the application session have been justified? The answer is a resounding “No”.”

Justice Tafa felt that Justice Kirby’s statement, which the State relied upon to launch an appeal, unjustifiably paints a picture of a judicial crisis where none exists.

“It might not have been the intention of the President of the Court of Appeal to exaggerate the problem he perceived but clearly his statement did,” observed Tafa. 

He said there is no need why the Court of Appeal cannot enlist the services of some judges of the High Court to assist in carrying out the functions of the Court.

“I’m mindful that Mr. Chamme (Acting Attorney General) in his affidavit alludes to the High Court Judges being inundated with their own workload. This is neither here nor there regard being had to the fact that as and when they were required to assist at the Court of Appeal, they have done so,” he said.

Tafa further pointed out that at any rate Court of Appeal sessions that require a full bench are held during High Court vacations.

On argument by the State that granting of a stay will not prejudice Manual Workers Union, Tafa said “…the prejudice of to the First Respondent (union) of being subjected to a panel of judges whose appointment has been declared by a competent court to be unconstitutional is immense and so is the prejudice to the public at large should the appeal be decided against the applicants after they have sat and delivered many more judgements which may later be declared to be void.”

Dismissing the appeal, Tafa ordered the State to pay three quarters of the application.

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