In building a case of why Justices Singh Walia, Leatile Dambe and Zibani Makhwade should recuse themselves from a matter in which they are applicants, four of their colleagues have chronologically plotted a pattern of alleged bias that they have observed over the course of a court case that has been dramatically unfolding for over a year now. On affidavit page, Walia and Dambe don’t come out smelling of roses but at first sniff, there is some fragrance that hangs around Makhwade. However, as a May 19, 2016 encounter suggests, the concentration of that fragrance is not strong enough for the noses of a quartet (Dr. Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang) whose individual identity in press mention has largely been subsumed under the somewhat anonymising epithet of “suspended judges.” Over an extended period of time, each one of those judges drew housing allowance that they were not entitled to. Matters came to a head when, at the instance of the Judicial Services Commission (JSC), Chief Justice Maruping Dibotelo reported all of them as a single offender group to the police. The result was that President Ian Khama, who appoints judges, suspended all four and activated a process to determine their suitability for holding judicial office by appointing a tribunal to investigate the matter. Determined to be restored to office with their reputations intact, the suspended judges have launched a major legal war interspersed with a succession of battles. As the following account shows, the recusal battle puts Walia & Co. under controversial focus.
February 4, 2016: Walia issues then withdraws two cautions against judges’ lawyer
At the beginning of this hearing, Walia and Patient Thuto, the lawyer representing the four judges, could not find common ground on whether the window to make pleadings was still open. The lawyer wanted to bring an application to compel the Registrar and Master of the High Court to both allow inspection of the court record and compel production of some documents. In an affidavit deposed to by Letsididi, Walia and Dambe are said to have stated that the four judges were “unnecessarily delaying the matter.” Walia went a step farther and “cautioned” Thuto about what appeared to him to be intentional delay. When the lawyer pointed out that the judge was confusing the interdict application with the review application, the latter withdrew the caution. At that same hearing, Letsididi describes Walia as having “taken umbrage” to one statement made by Thuto. The latter revealed plans to file two separate interlocutory applications, one (which wouldn’t be part of the main application) compelling the Registrar to allow inspection. “The Honourable Justice Walia took umbrage at what he thought was a suggestion by our attorney that the application to compel the Registrar to allow inspection would be placed before a different judge and he once again cautioned [Thuto] about seeking to delay the matter,” Letsididi says in his affidavit. It was Makhwade who would come to the lawyer’s rescue by telling Walia that the applicants had not made any indication that the Registrar’s matter would go to a different judge. Walia withdrew this second caution but would make a third that, from reading Letsididi’s affidavit, doesn’t seem to have been withdrawn. After issuing a scheduling order, Walia cautioned the four judges to “concentrate on substance than form”, adding that he would “hate” to have to say down the line that “enough is enough.”
February 9, 2016: Walia’s secretary makes a cameo appearance
Lights, camera – no action. The judges’ lawyer hand-delivers a letter requesting access to the transcript of proceedings to the Registrar’s office. After that, she stops off at Walia’s chambers to collect a copy of the transcript but the secretary – who is identified only as Mrs. Motlhabi – tells the lawyer that she does not keep transcripts of status hearings. (Interlude: “I wish to state that in my years as a judge, I do not know of any status hearing where a transcript is not kept by the stenographer,” an astonished Letsididi asserts in his affidavit.) The lawyer leaves the secretary’s office empty-handed. Cut! Subsequent effort towards securing the transcripts drew a blank. Summarising events thus far, Letsididi says that the option of filing an interlocutory application is a right which is available to any litigant prior to judgement being handed down and is provided for in the Rules of Court. He describes as “unwarranted” the accusation that a litigant exercising this right does so for purposes of delay. He adds that these incidents at the hands of Justices Walia and Dambe foreshadowed “unwarranted hostility and ultimately bias” against him and fellow boat passengers.
March 31, 2016: A ‘hostile and clearly agitated’ Dambe ‘gives evidence’ from the bench
During the hearing of argument, the judges’ lawyer pursues her clients’ demand for a copy of the JSC report that Chief Justice’s Dibotelo submitted to the police. Dambe asks the lawyer whether the judges were insinuating that Dibotelo was being untruthful. Letsididi’s impression of Dambe’s line of questioning is that it was illustrative of her “descent into the arena in that she was in effect giving evidence. In addition, she was hostile and clearly agitated by the suggestion that the Chief Justice’s version should not be accepted.” He adds that this incident provided further proof “of the unwarranted hostility and bias demonstrated by the court against us.”
May 19, 2016: Court wants judges to file papers before deadline
Through their lawyers, the judges express intent to file an appeal to an application they had lost within the six weeks allowed by court rules. The court wants the appeal sooner than the judges plan but Thuto insists that her clients have a right to use the full window period. Later in Walia’s chambers, each party digs its heels in with Makhwade enquiring “time and again why it was not possible for the applicants to file their application for leave to appeal before the end of the six weeks.” However, the parties are latter able to agree on timelines for the six-week period and Walia is keen to stress that the dates are “cast in stone.”
July 13, 2016: ‘No further piecemeal litigation will be permitted’
A day before the last day permitted for the filing of heads of argument in respect of the application for leave to appeal, the judges’ lawyers receive a letter from the Registrar. Letsididi says that the applicants (and only the applicants”) were informed that “no further piecemeal litigation will be permitted.” His assessment is that this letter “illustrates bias, a blurring of official duties and a total disregard for our rights at law as applicants.” The judge faults the Registrar for entangling himself in a conflict-of-interest conundrum because “on one hand he is party to the current proceedings, yet on the other hand he is clearly in communication with the Honourable Justices and carrying out instructions on their behalf related to the same matter.” Two other things are as clear to Letsididi: that the Registrar and the judges have been discussing the matter in the absence of both the applicants and respondents and that the judges have already formed a view that their suspended colleagues are purposefully delaying the matter. Letsididi frowns upon the fact that the letter is addressed to the applicants only and not the respondents and that the Registrar equates the bringing of interlocutory applications with delaying the conclusion of the substantial application. The judges’ response was to have their lawyers fire off their own letter expressing grave concern about what they believed to be subversion of due process. On the basis of what they believe, the applicants want all three judges to recuse themselves from the matter. “We, as applicants, have a real apprehension that the Honourable Court comprising of the Honourable Justice Walia, sitting with the Honourable Justice Makhwade and Honorable Dambe, are biased against the applicants and have formed a view regarding the propriety of the applicants’ conduct in this matter such that the applicants will not be afforded a fair hearing. Accordingly, the Honourable Court comprising of the Honourable Justice Walia, sitting with the Honourable Justice Makhwade and Honorable Dambe should recuse themselves from the further hearing of this matter,” Letsididi’s affidavit says. The court rules on the recusal application on December 8.