Sunday, October 17, 2021

No ways mate … rules are rules!

Justice Dr Zein Kebonang has made an order at the Gaborone High Court that his colleague Dr Key Dingake comply with an order that he (Kebonang) issued in April last year.

Alongside former Debswana Diamond Company managing director, Blackie Marole, Dingake is suing Donald Gaetsaloe for defamation. The source of the alleged defamation was an affidavit Gaetsaloe had filed in legal proceedings he had instituted in the High Court against Mascom Botswana and six other defendants. 

At that time, Marole was Debswana MD and Dingake was presiding in a case in which the company was facing off with Gaetsaloe. 

The allegations the latter made were published in newspapers, prompting Dingake and Marole ÔÇô who had been mentioned in the affidavit – to sue Gaetsaloe for defamation.

Last year, Kebonang ordered Dingake and Marole to respond to allegations made against them with the specificity required by High Court rules. 

According to Order 20 Rule 4, a litigant “must admit or deny every allegation or state that he has no knowledge concerning it, or confess and avoid it”. 

In another part, the same rule says that “every allegation not so dealt with shall be taken to be admitted”. 

Rule 5 goes further to state that if it is alleged that someone received a certain sum of money, “it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else state how much he received”.

Describing Dingake’s response to allegations he had made against him as “bald and evasive”, Gaetsaloe went back to court to ask it to compel the former to be more precise. 

The allegations are that during the time that Dingake presided over the Gaetsaloe-versus-Debswana case, he had “considerable financial difficulties” and had been in default on his loans repayments to Barclays Bank, Botswana Building Society and Stanbic Bank; that he received a sum of P1. 25 million from the ABM University College which he failed to declare to the Botswana Unified Revenue Service in his tax returns for that tax year; and that under oath he had sold and transferred his property to the Minister of Infrastructure and Housing Development, Nonofo Molefhi, for P1. 5 million and that the sale had taken place on May 7, 2009.

On the other hand, Gaetsaloe contends that these assertions are false because Dingake had been paid only P1. 25 million by Molefhi in May 2008 and didn’t declare his taxes; that Dingake had received several cash payments between 2008 and 2009 of various amounts (totalling approximately P535 046) which were deposited into his bank accounts as “salary invoice payment”, which amounts he knowingly omitted in his tax returns; that Dingake and Marole had maintained contact throughout the court proceedings and, acting in concert, had prevented him (Gaetsaloe) from obtaining phone records from Mascom relating to various phone calls and text messages they had exchanged; and that Dingake granted bail to Elvidge Mhlauli (former Permanent Secretary in the Ministry of Local Government, Lands and Housing) in the absence of a court record. 

Mhlauli was represented by Kgalalelo Monthe who is Dingake’s first cousin.

“From the record of proceedings, it is clear that in response to these allegations, (Dingake) was content largely with providing bald denials and putting all averments into issue,” said  Kebonang when handing down judgment in an interlocutory application in which Gaetsaloe wanted Dingake compelled to be specific in answering allegations against him.

Kebonang described the position adopted by Dingake as “unfortunate”.

“First, by its very nature, a court order defines what the court requires of the parties to a dispute. Unless appealed or rescinded, it must be obeyed. In the instant case, (Dingake) has not explained why (he) could not comply with the spirit and intent of the order of April 18, 2016. 

“To deliberately not comply with a court order (and one may add, to which they consented to) is on the face of it contempt of court. It undermines the court’s primary function of conclusively determining the rights of the parties before it,” says the judgment adding that Dingake’s position undermines the role of pleadings in litigation. 

 

“Because (Dingake) elected to file his replication in terms of Order 20 Rule 4 and Rule 5 of the rules of court respectively, he cannot therefore, in my view, be evasive in his response or seek to put every factual averment by the defendant into issue.”

In Kebonang’s determination, Dingake cannot content himself with “vague and bald denials” and leave all issues to trial.

“Not only is this contrary to the specific order of this court; it evades the issues to be determined, prolongs the dispute; prevents prospects for early settlement, puts litigants into considerable expense and while it may be a tactical approach, it is generally an inefficient approach to litigation and use of the court’s limited time and resources. All it does is to promote litigation by exhaustion,” the judge said.

Kebonang ordered Dingake to “strictly comply” with the April 16, 2016 court order of this court issued on the April 18, 2016. He also ordered Dingake to pay Gaetsaloe’s legal costs for this particular application.

Dingake has just returned to work following a very long suspension. Alongside three other judges Modiri Letsididi, Mercy Garekwe and Rainer Busang), Dingake they were suspended for drawing housing benefit they were not entitled to. 

The matter came to a head when President Ian Khama suspended the four which was a serious blunder because it was later revealed that other judges had also done the very same thing. 

Speculation is rife that the suspension was part of a plot to disqualify Dingake, a very well-respected legal brain with an opposition party background, from becoming the next Chief Justice.

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