An appeal by President Khama, The Speaker of the National Assembly, the Attorney General and the Judicial Services Commission against a recent judgment by Justice Abednico Tafa may never see the light of day as it will be impossible to assemble judges to hear it because of a conflict of interest ÔÇô it emerged last week.
In his judgment, justice Tafa ordered that Section 4 of the Court of Appeal Act of 1980 which allows the President to determine the number of justices of appeal should be struck down as unconstitutional; That the appointment of Justices of Appeal on more than one three year contract, as has been the practice for many years is unconstitutional and that the appointment of the justices of appeal other than the Judge President is unconstitutional. The state immediately lodged an appeal against the judgment, and applied for a stay of the judgment pending the appeal. As it turns out, however, it may not be possible to empanel a court that would hear the appeal. Agreeing with the argument raised by the National Amalgamated Local and Central Parastatal Workers Union (NALCPWU) who were opposing the application for a stay of the judgment, Justice Tafa said, “from the onset, I would like to advert my mind to the submission by the 1st respondent (NALCPWU) to the effect that as things stand, there might never be an appeal for the reason that it would be well nigh impossible to empanel a court that would hear the appeal. This argument, farfetched as it may seem at a blush nevertheless deserves interrogation, for; it is unlikely that a panel of judges will be available to hear the appeal. Then and in that event, a stay pending appeal will be tantamount to subverting the ends of justice because it would remain in force indefinitely to the prejudice of the respondent herein, which holds a judgment in its favour.”
According to the Court of Appeal Act, only the President of the Court of Appeal can empanel a court to consider an appeal.
The President of the Court of Appeal, Justice Ian Kirby would be unable to convene judges to hear the case because as a member of the Judicial Services Commission which is appealing the judgment, he is conflicted. There would also be no resident judge to act on behalf of Justice Kirby as the next senior judge of the Court of Appeal namely justice Isaac Lesetedi would also be conflicted because he is a respondent in the appeal. The next senior judge after Justice Lesetedi is Justice Monametsi Gaongalelwe who is also conflicted. Dismissing the application for a stay of the orders, Justice Tafa said, “the likelihood if not probability, therefore, is that it is impossible to convene a Court of Appeal for the purpose of the applicants.” Justice Tafa said the “risk in granting an order for stay when there is no certainty as to whether an appeal court can be convened is that the order may become final. This would be unjust and contrary to all notions of justice. This therefore diminishes, in no small measure, the applicants’ prospects of success. The possibility of the Court of Appeal not being able to convene owing to the fact that all the judges thereof are conflicted is not as farfetched as some may think. Such situation [played itself in South Africa in the case of Judge President Hlope v Premier of Western Cape Province 2012 (6) SA 13, wherein because the judges of the Constitutional Court ( that being the apex court in South Africa) were conflicted could not be convened to deliberate upon the applicant’s appeal. As a result, the judgment of the court below was regarded as final.