The Sunday Standard newspaper dated August 28-03 September 2022 ran with a story where Judge Gaopalelwe Ketlogetswe bitterly complained to the President through a letter that the Minister of State President Kabo Morwaeng and the Chief Justice Terrence Rannowane attempted to influence his decision in the matter involving the Member of Parliament for Lobatse Dr Thapelo Matsheka. Dr Matsheka had launched an urgent application for his release from custody after being, on his version, unlawfully detained allegedly for the murder of a young school boy from his constituency. Dr Matsheka’s urgent application would be presided over and dispensed by Ketlogetswe J. It is common cause he released him from custody and that he is suing the State for over P 10 million. It appears from the Sunday Standard report that Ketlogetswe J had a conversation with his boss the Chief Justice which on the face of it was not inappropriate given firstly that both do not dispute it and secondly, that judges always discuss principles of law amongst themselves. A conversation between the two judges with respect to the Dr Matsheka matter would not be any different.
From reading the newspaper report on the Chief Justice’s involvement in the matter, it would appear firstly that a ‘closed’ matter of the housing issue completely irrelevant to Ketlogetswe J’s complaint that the Chief Justice attempted to influence him on how to rule on the Dr Matsheka’s matter is brought into the picture and strikingly the suggestion that it may very well be active and therefore liable to bring intended or unintended consequences. Secondly, that Ketlogetswe J is one of the judges who had advocated for the impeachment of the immediate past Chief Justice Dibotelo Maruping. The import of the Chief Justice’s statement with respect to the two foregoing issues is that all has not been well between him and Ketlogetswe J. Further to this, I find the inclusion of Ketlogetswe J’s political history or involvement as it relates to his complaint against the Chief Justice misplaced because it does not bring any relevance to the complaint. It is context that brings no added value. The Chief Justice is emphatically rejecting that he attempted to influence Ketlogetswe J.
Now that the two judges are holding two opposing views to the alleged influence conduct with respect to Dr Matsheka’s urgent application to be released from custody, it will in my view be appropriate for a tribunal or inquiry to be constituted in order to get to the bottom of accusations/counter accusations as emanating from either side. It does not emerge as succinctly as one would expect from my reading of the newspaper report, that the Chief Justice attempted to influence Ketlogetswe J. This matter particularly that it emanates from members of the judiciary cannot be resolved by the President because he is conflicted due to the fact that the complaint from Ketlogetswe J was directed at him. Neither can the Minister or his staff be assigned to deal with it. Such tribunal or inquiry will reveal inter alia, the content and tone of telephonic conversations between the judges to determine whether influence in any form or shape was expressed directly or indirectly or not.
If it is determined that the Chief Justice indeed directly or indirectly attempted to influence Ketlogetswe J, the former could find himself in the same position as currently does the Judge President of the Western Cape Division of the South African High Court Judge John Hlophe. He is accused of having influenced two former judges of that country’s Constitutional Court in the persons of Justices Chris Jafta and Bess Nkabinde to rule in favour of former President Jacob Zuma. After reading the said newspaper report, I constantly asked myself whether Ketlogetswe J would accuse his boss of having attempted to influence him to rule in this or the other manner given the serious implications of his allegations. Is he having a personal vendetta against the Chief Justice and therefore a score to settle? Would Ketlogetswe J stoop so low as to build a mountain out of a molehill? In fairness to the two legal scholars, an impartial inquiry led by individuals with impeccable records of integrity and fairness will be able to establish the truth.
Minster Morwaeng is also implicated by Ketlogetswe J to have attempted to influence him. I find the alleged involvement of the Minister in this matter neither shocking nor surprising. I have always felt he is someone who plays lip service to the principle of Separation of Powers. Since he was appointed to the Office of the President, he has displayed a conduct of someone who is intent on running roughshod over other arms of the State. Through so many proposals in terms of Bills and Motions in the National Assembly, it is fair to conclude some if not all of them were meant to allow the Executive have a firm grip on the National Assembly. Put bluntly, the National Assembly is firmly under the direction of the Executive and particularly the Minister himself. It should reason his next stop would be the judiciary.
To start with, he had no business under the sun to request a meeting with Ketlogetswe J let alone calling him. The fact that Ketlogetswe J correctly described such proposed meeting as ‘the most inappropriate thing to do on my part’ is telling. He was trying to shut the door on the Minister but inexplicably, he persisted with dialling the judge nevertheless. This persistence explains one thing: that the Minister was desirous of imposing himself on the judge. The story that if Ketlogetswe J ruled that Dr Matsheka be released from custody would result on his and his family’s security compromised is just but a school boy scapegoat. Ketlogetswe J’s security is subject to appropriate assessment by the relevant authority and would have been so assessed and beefed up if and when it was necessary to do so without the Minister proposing or calling him. While the Minister may have been aware of purported security requirements if at all, it would have been just that-to be informed without directly approaching him. The Minister’s story looks fabricated to achieve influence. Dr Matsheka’s story is believed to be riddled with an abundance of politics more than the legalities hence the Minister’s appearance.
While the Minister approached the judge on his own as alleged by the judge, it stands to reason he would not have done so without the express concurrence of his principals. It is unimaginable he could take such a chance given the deleterious consequences as already allude to somewhere in this conversation. On this point only, no action will be taken against him by the said principals because he would have been acting on their behalf. A pertinent question should be asked: is this the first time the Minister or anyone in the good books of the principals, would have approached judicial officers in order to influence them to rule in a particular manner? It may very well be this is the modus operandi. Given that judges are fallible like other human beings, there may be some in the judiciary who are always willing to be the Executive enablers whose judgments could be constructed to deliver an Executive friendly outcome.
By all accounts and should Ketlogetswe J’s claims be correct that Minister Morwaeng and Chief Justice Rannowane indeed attempted to influence him to rule against Dr Matsheka, this will be a permanent scar on one hand in the administration of President Masisi and on the other, the judiciary. It will also confirm the view that has, and continues to be made by some that the Executive is encroaching the judicial space to influence decisions against those deemed anti-establishment. This is a matter that cannot, and must not be swept under the carpet or be subjected to an Executive friendly tribunal or inquiry. An inquiry made up of men and women with untainted credentials complemented by high levels of integrity must be assembled as soon as possible to get to the bottom of this matter. It is in the interests of all the actors of this script together with nation and the world that this matter is probed and brought to finality under the principles of fairness, objectivity and the Rule of Law. I am hoping Ketlogetswe J won’t be the sacrificial lamb to protect the mighty and the powerful. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe’. Covid-19 is still in our midst. Let us be vigilant at all times.
