In terms of Section 97 of the constitution, High Court judges must retire at 70 years and that provision has implications for the case of the four suspended judges. The latter are Justices Dr. Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang.
The case is before a three-judge panel and one third of that panel is Justice Lakvinder Singh Walia who is supposed to retire at the end of this year on account of age. He is sitting with Justices Leatile Dambe and Zibani Makhwade. The same constitution that prescribes the retirement age for judges, also gives the president discretionary powers to “permit a judge who has attained that age to continue in office for such period as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age.” Such action on the part of the president should be in accordance with the advice of the Judicial Service Commission (JSC).
In Walia’s particular case, there is a landmark case before him and the section of the nation and the international community that takes interest in the judiciary is anxiously waiting for the outcome. That might provide reason for President Ian Khama, who suspended the judges, to extend Walia’s time on the bench. Such extension would introduce another dimension. In terms of historical practice in the judiciary, the most senior judge is appointed Chief Justice and at this point in time, Walia happens to be the second most senior judge after Chief Justice Maruping Dibotelo who retires in October next year. The third most senior is Justice Dingake who is on suspension. With both Dibotelo and Walia out of the picture, established historical practice makes Dingake Chief Justice but there are no guarantees.
A case in which the High Court had to rule on whether the president can disregard the advice of the JSC introduces another interesting dynamic. While the JSC can advise Khama to not extend Walia’s contract, he can lawfully disregard such advice. In the stated case, the JSC advised Khama to appoint Omphitlhetse Motumise to the bench but he disregarded such advice and was adjudged to have acted lawfully by the High Court.
All such factors aside, there is no cast-iron guarantee that Walia will continue to hear the case of the suspended judges. Alongside Dambe, he has been accused by his suspended colleagues of not being fair to them and on such basis, they have made an application for all three judges to recuse themselves. The precise charge with regard to Walia’s handling of the case is that he has been hostile. At the beginning of a February 9, 2016 hearing, Walia and Patient Thuto, the lawyer representing the four judges, could not find common ground on whether the window to make pleadings was still open. The lawyer wanted to bring an application to compel the Registrar and Master of the High Court to both allow inspection of the court record and compel production of some documents. In an affidavit deposed to by Letsididi, Walia and Dambe are said to have stated that the four judges were “unnecessarily delaying the matter.” Walia went a step farther and “cautioned” Thuto about what appeared to him to be intentional delay. When the lawyer pointed out that the judge was confusing the interdict application with the review application, the latter withdrew the caution.
At that same hearing, Letsididi describes Walia as having “taken umbrage” to one statement made by Thuto. The latter revealed plans to file two separate interlocutory applications, one (which wouldn’t be part of the main application) compelling the Registrar to allow inspection. “The Honourable Justice Walia took umbrage at what he thought was a suggestion by our attorney that the application to compel the Registrar to allow inspection would be placed before a different judge and he once again cautioned [Thuto] about seeking to delay the matter,” Letsididi says in his affidavit. It was Makhwade who would come to the lawyer’s rescue by telling Walia that the applicants had not made any indication that the Registrar’s matter would go to a different judge. Walia withdrew this second caution but would make a third that, from reading Letsididi’s affidavit, doesn’t seem to have been withdrawn. After issuing a scheduling order, Walia cautioned the four judges to “concentrate on substance than form”, adding that he would “hate” to have to say down the line that “enough is enough.”
This is not the first time Walia has been asked to do recuse himself from a case. Three years ago in the case of Tati Motors and BP Botswana, he was asked to recuse himself to avoid public perceptions over a possible conflict of interest. In 1995 and while working as a private lawyer, Walia had incorporated Engen Truck Inn, a service station owned by his brother, Satvinder Singh Walia. In her court papers, the owner of Tati Motors, Linda Matumo, argued that being a key player in the local fuel retail market, Walia’s brother might benefit directly from a favourable outcome for BP.
Walia presided in the Motumise case, finding in favour of the state. Handing down judgement, he said that the president has powers to appoint judges, thus rejecting the argument by the applicants, the Law Society of Botswana, that the president’s role in the appointment of High Court judges was a mere formality.