Justice Dr. Zein Kebonang is the latest in a parade of judges to be tossed a hot-potato defamation case that involves a colleague of his, Justice Dr. Key Dingake, and former Debswana Diamond Mining Managing Director, Blackie Marole, as plaintiffs. The defendant is Donald Gaetsaloe whom Dingake and Marole accuse of defamation through a newspaper article in which he alleged corruption on their part. The Minister of Infrastructure, Science and Technology, Nonofo Molefhi, whose name was also mentioned in the alleged corruption, has successfully sued and been awarded damages.
When first filed in 2010, the matter was initially assigned Justice Zibani Makhwade but has gone through at least six judges, including the recently appointed Botswana Ambassador to the United States to America, Justice David Newman. At the penultimate count, the hot potato had been tossed to Justice Terrence Rannowane who, in turn, passed it on to Kebonang, who was appointed acting judge two months ago. As with colleagues before him, Rannowane had found himself unable to proceed with the matter and recused himself. It is unclear what Kebonang will do with the case himself but its history suggests that judges are unwilling to handle it. As far as Sunday Standard could determine, this is the first time in Botswana’s judicial history that a case has been so fruitlessly rotated among so many judges.
Then again, the matter may never go to trial because when it came up for roll-call hearing last week, Gaetsaloe’s lawyer, Itumeleng Segopolo, hinted at the possibility of an out-of-court settlement. He asked Kebonang to postpone the next hearing by a month and half “in order for parties in the matter to achieve clarity as to the way forward.” In his ruling, the judge granted the parties a full two months. The next hearing is on August 3, “assuming the parties would not have managed to cobble together some agreement”, as Kebonang said. Dingake and Marole are represented by Tsholofelo Mvungama.
All around the world in democratic systems, it is common judicial practice for judges to recuse themselves in proceedings where their impartiality might be reasonably questioned. Where a judge doesn’t voluntarily recuse himself, a litigant may ask such judge to do so, giving reasons for the request. If the judge declines, the litigant may file an affidavit of disqualification with the court. Whatever the reason for these recusals may be, this is not the first time that a matter in which a judge is a litigant has been tried at the High Court.
In 2001, Justice Esmail Chatikobo presided in a matter in which Chief Justice Maruping Dibotelo successfully sued Mmegi for defamation. Justice Singh Walia presided in a similar case in which Justice Mpaphi Phumaphi unsuccesfully sued veteran journalist and one of Mmegi shareholders, Methaetsile Leepile, in a case that dragged on for 14 years and ended last year.
