Chief Justice Maruping Dibotelo says his referral of the matter involving the four judges to the police over receiving and utilising housing allowances they were not entitled to was neither discriminatory nor malicious.
The four judges are; Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang. The quartert was recently suspended from duty by President Ian Khama pending the finalization of the investigations to be carried out by a tribunal set up by the president.
In his answering affidavit, Dibotelo says his actions to report the judges to the police flowed from the gravity of the revelations of the audit report; the huge sums unlawfully paid and the recurrence over a very long period of time ranging from sixteen months to eighty five months.
The Chief Justice says the matter was viewed as having gone beyond a mere administrative lapse or mere overpayment into the realm of prima facie criminal behaviour and or misbehavior.
As appointed by the President under section 96 of the constitution, the Chief Justice says his duties and powers are both administrative and judicial and include among other things appointing places where the High Court shall sit.
Amongst other things Justice Dibotelo also said he is the chair of the Judicial Service Commission ensuring the integrity of the judiciary and ensuring that the conduct of the judges is above reproach.
He said the decision to refer the matter to the police was necessitated by a number of considerations:
First the Administration of Justice (AOJ) has no investigative capacity or competence.
Second, it was considered important that investigations into the conduct of the four judges be done by an impartial and competent authority to avoid allegations of bias and also ensure that the integrity of the investigations was not compromised.
As the actions of the applicants appeared to constitute a potential criminal conduct, the AOJ could not be a complainant, investigator and adjudicator of the matter.
As a matter of public policy, it would have been wrong for the AOJ to conceal the wrong doing or to apply different ethical, moral and legal standards to the applicants. The applicants as judicial officers are in fact to be held to the most exerting of Standards. A criminal conduct does not cease to be so simply because it has been committed by judicial officers.
The Chief Justice further said it was also in the best interest of the four judges that whatever allegations leveled against them be tested by an independent and credible body; in the form of the police.
Justice Tebogo Tau of the Lobatse High Court last week postponed the matter to September 28, to allow the applicants and respondents to exchange court papers.
The four judges are expected to file their replying affidavits by September 22. Both parties will engage heads of arguments on September 24.