Wednesday, September 28, 2022

Registrar misled court in suspended judges case

In a high-stakes case involving the President, Chief Justice, Attorney General, four High Court judges, Registrar and Master of the High Court and the Judicial Services Commission, one expects own goals to be avoided at all costs because of the cost involved. However, the Registrar has scored an own goal that may prove even costlier down the line.

The four suspended judges (Justices Dr. Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang) sought access to “a complete and accurate transcription” of court proceedings held on four separate dates between February and May this year. The judges wanted the transcripts for the February 4, March 31, April 28 and May 19 hearings but only got those for the first two dates which were delivered on September 1, 2016. The situation had not changed on September 19, 2016 when in various capacities, the judges deposed to a founding, supporting and confirmatory affidavits.

However, in his answering affidavit, the Registrar stated that the whole package (including transcripts for the April 28 and May 19 hearings) were delivered on September 15, 2016. Oddly, a day after the whole package was supposedly delivered, the judges contacted an unnamed presiding judge in futile attempt to secure the still-undelivered transcripts. This revelation is made in Paragraph 39.

“This was not denied in the answering affidavit filed. On the contrary, the response was simply as follows: ‘The contents herein are noted.’ If indeed this was not true, the Registrar would have filed an affidavit to show that indeed by the 16th September 2016, the transcript had in fact been delivered and that the events captured at Paragraph 39 did not occur,” says a ruling written by Justice Zibani Makhwade and agreed to by Justices Singh Walia and Leatile Dambe.

The court determined that as the judges’ affidavits stated, the transcripts were delivered on September 20, 2016, five days after the Registrar falsely stated that they had been delivered.

“There is no doubt from the affidavit that the transcript referred to in the answering affidavit was only delivered on the 20th of September 2016. One does not understand why the Registrar in the light of averments made in Paragraph 39 would raise an issue yet at the same time fail to respond to clear allegations on the issue,” Makhwade’s ruling says.

The second lapse is not an own goal given that the subject involved is not party to the proceedings but is a court reporter superintending a vital aspect of the court process.  In terms of Order 45, Rule 18(3) of the Rules of the High Court, the longhand and shorthand notes taken in court shall be certified by the person taking them and shall be filed with the Registrar. However, the set of transcripts that the judges were given was not certified as Rule 18(3) requires. This raises a question of whether this is indeed a transcript in terms of the Rules of the High Court. In his ruling, Makhwade directed the Registrar to ensure that the court reporter who prepared the transcript to file the necessary certificate. All in all, the judges will be given full access to the transcripts for all sittings they cited in their application.

The case continues on December 8 when the court will make a ruling on a recusal application made by the judges. Upon conviction that Justices Walia, Makhwade and Dambe are biased against them, the suspended judges have made an application that they be replaced by foreign judges with no links to Botswana. President Ian Khama suspended the four judges for getting housing allowance they were not entitled to.


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