The credibility of President Khama and that of the four suspended judges are on trial as the court is faced with deciding who between the president and the judges is not telling the truth.
This comes after President Khama changed his previous statement that he was right not to afford the four judges a fair hearing before suspending them.
The president has however gone back on his initial statement and now insists that the four judges were given a hearing.
In his previous affidavit, Khama said he did not afford the judges a hearing before suspending them because he was advised by his attorneys that they were not entitled to a pre-suspension hearing.
However, Khama has since changed his story, saying the judges were in fact afforded an opportunity to be heard.
In their heads of arguments, the four judges; Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang maintained that they were not afforded a right to be heard prior to the President’s decision to suspend them or to constitute a tribunal.
At stake, is the credibility of the Office of the President and that of the judiciary.
Initially Khama had argued that the judges were not eligible for a hearing pre-suspension.
“I did not afford the suspended Judges a hearing before their suspension. I was advised by my attorneys, which advise I verily believe to be true, that the applicants are not entitled to a pre suspension hearing,” said Khama at the time.
He further said the suspended judges’ right to be heard had not been curtailed as they will be afforded an opportunity to be heard at the tribunal. However, Khama hit a u-turn in his latest heads of arguments, submitting that the suspended judges were in fact afforded an opportunity to be heard. He explained that the four judges’ legal representatives submitted detailed written submissions to the President on 3rdSeptember 2015, requesting him to reconsider his decision in terms of section 97(5) of the constitution, as well as to reconstitute the tribunal. The Attorney General responded to the judges lawyers on 4th September, advising them that the decision would not be revoked as the tribunal was lawfully constituted. Khama said in his latest affidavit that the suspended judges’ contention that they should have had prior notice of any conduct which would likely lead to their suspension or removal are without merit.
“The four suspended judges have over a considerable period been receiving a housing allowance whilst simultaneously occupying official residences. They were under a duty to disclose their receipt of the allowance to the appropriate officials at the outset. But they appear to not have done so as they continued receiving the allowances on a monthly basis,” Khama argued.
Justice Tebogo Tau last week reserved judgement on the case and is expected to deliver judgement on Tuesday. President Khama is represented by Advocate Anwar Albertus while the four suspended judges are represented by Advocate Sean Rosenberg, both from Cape Town.