Tuesday, October 19, 2021

Legal eagles claw at each other over judges’ stipend

The Administration of Justice tried in vain to persuade the Ministry of Finance and Development Planning and the Ministry of Justice Defence and Security to remove Justices Stephen Gaongalelwe and Terrence Rannowane from an audit report suggesting that they drew housing allowance they were not entitled to.

This is contained in court papers in which the two judges want the court to set aside a portion of the audit report that implicate them in the never-ending saga at the Administration of Justice (AoJ).

The audit present a problem for the AoJ and suggests double standards because while Rannowane and Gaongalelwe are still presiding over cases at the High Court, four other judges have been suspended for drawing housing allowance they were not entitled to.

The first letter from Senior Internal Auditor in the Ministry of Defence Justice and Security Maria Mokgwathi addressed to Registrar and Master of the High Court Michael Motlhabi rejects a proposal to remove both judges from the audit report.

“Kindly be advised that the findings in the internal audit report are factual, as such, it would not be possible to remove any of them from the report,” states a letter from Mokgwathi to Motlhabi.

Another letter from the Permanent Secretary in the Ministry of Finance Solomon Sekwakwa marked “Confidential” states that “kindly be advised that the findings in the internal audit report are factual, as such, it will not be possible to remove any of them from the report.”

Sekwakwa’s letter further states that: “May I also remind you that as the Accounting Officer, internal audit reports are produced on your behalf, on advisory basis, therefore it is within your ambit to decide on the action which you deem appropriate.”

Mokgwathi and Sekwakwa were responding to a savingram from Motlhabi marked “Confidential” which proposed that the two judges be removed from the audit report.

In his letter addressed to Sekwakwa and Mokgwathi, Motlhabi states that “an audit on housing allowance of judges has now been finalised and its findings amongst others are that the two judges received housing allowance which they were not entitled to, as they were staying hotels paid for by the Government and a pool house.”

He further states that “the judges through their communications of June 17, 2016 and June 23, 2016 respectively, succinctly show that they do not owe monies to Government and request to be removed from a list of judges owing Government through receipt of undue housing allowance”.

Motlhabi explained that the judges’ position is based on their conditions of service and “we have considered the specific condition of service dealing with accommodation of judges”.

He added that “we are convinced by the views of the two judges, as a hotel room and a pool house respectively, cannot be a substitute for a judge’s institutional house with all its amenities and do support the request to have them removed for the reasons given in their submissions”.

The audit report was conducted by the Ministry of Defence, Justice and Security whose portfolio the Administration of Justice falls under.

The audit mentioned Rannowane and Gaongalelwe as beneficiaries of housing allowance whilst occupying institutional accommodation provided by the government of Botswana.

The audit further named the current Minister of Basic Education Unity Dow among judges who benefited from illegal housing allowance during her time as a judge.

The trio adds to four other High Court judges suspended by President Ian Khama for illegally enjoying housing allowance whilst accommodated under government properties. The four are Key Dingake, Rainer Busang, Mercy Garekwe and Modiri Letsididi.

Sunday Standard has turned up information that in another desperate attempt to create distinction between the two groups of judges who were paid housing allowance against what the law prescribes, the AoJ attempted to redefine established policy and practice.

The AoJ wrote to the Ministry of Finance and Economic Development to give an interpretation of finance law that the latter (which is the custodian of state funds) is unfamiliar with. In terms of the policies developed from such law, there is no such thing as “inconvenience allowance” but AoJ is now making the case that judges in the second group were paid housing allowance as recompense for the inconvenience of staying in a hotel.

Apparently, no one has ever been paid this sort of allowance because it has never been known to exist. The ministry is said to have refused to play along because there is no provision for inconvenience allowance.

It is unclear what will happen in the future but if the ministry accepts that civil servants can be paid housing allowance for staying in a hotel, that would mean that circumstances under which Gaongalelwe and Rannowane received housing allowance are different from those of the four suspended judges.

To be precise, it would mean that there is no double standard in taking disciplinary action against one group of people and none against the other. The ministry’s acquiescence could open a Pandora’s Box because other civil servants who stay in hotels while on duty would also be eligible for inconvenience allowance.

The double standard that has come to define this matter has largely been attributed to a plot to make it impossible for Dingake to become Chief Justice next year when Dibotelo reaches retirement age.

 He is the second most senior judge after Dibotelo and the practice since independence in 1966 has been for the most senior judge to become Chief Justice. Dingake, who is the younger brother of Michael Dingake, (a veteran opposition figure who was imprisoned with Nelson Mandela on Robben Island) is reportedly seen as anti-government. 

RELATED STORIES

Read this week's paper