On 2nd June 2022, government released a press release through which it communicated the fact that the Director General of the Directorate on Corruption and Economic Crime (DCEC) Rre Tymon Katlholo was suspended from duty ‘in accordance with Section 112 of the Constitution with immediate effect’. A further press release would be issued wherein it stated ‘The decision to suspend Mr Katlholo is necessitated by the fact that in the course of his official duties, he has misconducted himself and exhibited behaviour that is incompatible with the conduct of a public officer’. It is almost three months since the suspension was effected yet the disciplinary proceedings are to begin. It is fair to conclude the proceedings have not yet begun (if they will ever be) because it would have been communicated one way or the other given the public interest in the matter coupled with the publicly reported explosive circumstances leading to the suspension. For the disciplinary proceedings against Rre Katlholo to have stalled for three months says a lot about the reasons thereof let alone the validity of the same. From where I stand, the suspension was, and still is a knee-jerk reaction meant to counter his resolve to talk truth to power. Where is the brick wall?
The point of departure should be the legalities of the suspension itself. The Weekend Post online edition article dated 6th June 2022 titled “Katlholo’s suspension is unconstitutional” and quoting a Gaborone based attorney Othusitse Mbeha of Mbeha Attorneys says “Although the Constitution should be given a wide interpretation, it’s clear that using the word ‘President’ under this Section the intention of the lawmaker was that only the President has the powers to suspend let alone appoint or remove the Director General. It’s therefore my considered view that the decision of the Acting President is unconstitutional, unlawful and insupportable in law. It’s an unfortunate constitutional misstep”. Should Attorney Mbeha’s view be correct, it goes without saying that government is busy grappling with how to bring the disciplinary proceedings against Rre Katlholo without running into a fierce storm of the same being successfully challenged in court and at a huge cost. One way of avoiding such storm will be to withdraw the disciplinary proceedings. What will be implications of doing so? Very huge in form and shape! Firstly, it will leave a huge egg on the face of government in that it will demonstrate beyond any reasonable doubt that the suspension was premised on false and fabricated reasons. Secondly, it will demonstrate beyond any reasonable doubt the suspension was used to fight against Rre Katlholo by protecting the Director General of the Directorate of Intelligence and Security (DIS) from been unmasked from bribery allegations. The bad blood between the Directors General of DCEC and DIS are well documented the result of which is the ongoing suspension.
Flowing from the foregoing, it has probably dawned on the powers that be that it will be difficult if not impossible to frame charges against Rre Katlholo for them to render conviction at the disciplinary hearing let alone anywhere else. While the standard of proof at the disciplinary hearings is that of balance of probabilities as opposed to proving beyond reasonable doubt, the inability to charge him after three months speaks to the harsh realities facing the powers that be that the suspension is flawed in more ways than one. Put differently, the suspension should have not occurred in the first place. Like Attorney Mbeha reportedly said in the above-quoted Weekend Post article, the fact that the suspension letter states matter-of-factly that Rre Katlholo has been charged with misconduct ‘during the course of his duty’ suggests he has already been found guilty even before a process to ascertain the misconduct allegations has begun. ‘In the course of duty’ phrase simply means he deliberately or wilfully committed a misconduct while at the same time being aware that to be unlawful. The complainant at the disciplinary hearing will have to be meticulous to explain the phrase to the Chairman which Rre Katlholo is likely to raise as a point in limine before the substantive case is heard in earnest. It will be a big ask to overcome.
The speed and the viciousness with which the suspension was carried out suggested justice would not be delayed. In a paper authored by Bongani Khumalo of the University of South Africa titled ‘Procedural Unfairness Occasioned By Unreasonable Delay In Finalising A Disciplinary Inquiry’he says ‘Justice delayed is justice denied is a maxim which denotes that if legal redress is available to a party that has suffered, or is suffering an injustice but it is not dispensed timeously, it has the same effect as having not dispensed timeously. In this context, the maxim is used to emphasise that delays in finalising employment disciplinary processes may amount to denial of justice’. In the context of this paper, it goes without saying that Rre Katlholo is denied justice on account that those holding the levers of power have chosen to unnecessarily delay dispensing such justice. This delay in my view and as already alluded to above, is occasioned by the knee-jerk reaction borne out of no compelling basis and malice. By the time the suspension was effected, it would suggest the powers that be knew what misconduct had been committed. Expectedly, bringing the charges and constituting a disciplinary process should not have gone past the first month let alone three. As they would say, a case stands or falls on its founding affidavit.
The precarious situation those who are hell bent to as soon as possible see the back of Rre Katlholo is worsened by the politicisation of the civil service where on one hand, there are those who are intent on ensuring that the various civil service careers of those deemed unfriendly to the powers that be are brought to a screeching halt as like yesterday while on the other, there are those who believe the principles of natural justice, fairness and above all the Rule of Law should be at the centre of ensuring the Public Service Act and the Public Service Charter amongst others, determine the civil service careers of all civil servants without exception. In the process, the poles apart semblance of the civil service ends up creating the situation Rre Katlholo and a myriad of other not so prominent cases find themselves in.
In the end, it is my considered view that Rre Tymon Katlholo’s suspension was, and still is premised on bad faith accompanied by high levels of malice because he dared to challenge the all-powerful Director General of DIS whom some describe as the de-facto leader of this country given the immense power and authority he seems to hold. If the legal opinion of Attorney Mbeha to the effect that the suspension is unconstitutional and therefore unlawful is correct, it stands to reason there is no basis in law that would have precipitated the suspension. Owing to this legal opinion, it is reasonable to conclude the powers that be find it difficult to convene a disciplinary hearing hence my proposition that it has hit a solid brick wall it is unable to penetrate. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe’. Covid-19 still remains the biggest threat to our health. Let us continue to adhere to all health protocols.
