BOFEPUSO DESK: RESPONSE TO CHIEF JUSTICE His Lordship The Honourable Chief Justice Gaborone Attention: Mr. Maruping Dibotelo 14 October 2013 Dear Sir, YOUR CIRCULAR DATED 10 October 2013 1. On 10 October 2013 Your Lordship issued a circular in which you insinuated that lawyers were bribing judges, and court staff on behalf of litigants to ensure a favourable outcome of cases. These grave allegations speak volumes of the level of confidence you have in your peers, many of whom you have recommended, through the Judicial Service Commission, (“the JSC”) for appointment. 2. We are shocked and dismayed as to how you expect the public to continue litigating before the courts that you overlook, if Your Lordship, as the head of the judiciary of in Botswana, has no confidence in the integrity of judges. 3. We would have thought that given the seriousness of the allegations of bribery, those judges whom you suspect of receiving bribes from litigants and legal representatives would have by now been placed on administrative leave pending a full investigation into these allegations. Our investigations reveal that no judge has been placed on administrative leave. 4. If the insinuations are without any foundation that warrants further investigation, then Your Lordship is being most reckless and is engaging in conduct that is inconsistent with what we expect of a chief justice. Your Lordship’s approach, with the greatest, demonstrates a complete lack of tact. 5. Your Lordship has raised concern about litigants and their legal representatives forum shopping. It is most naive to believe that judging is an objective art, in which the judge’s legal experience, competence, life experience and upbringing have no influence on the determination of matters. The reality, which has long been acknowledged the world over, is that all these factors play a pivotal role in the dispensation of justice. Some judges have a conservative/executive-minded outlook to legal matters and others have more liberal approach. This has nothing to do with integrity and everything to do with one’s jurisprudential vision, socialisation and perception of justice. 6. Judges, just like lawyers, have different expertise and specialities. By way of example if we had a stock theft dispute, we would much rather have Your Lordship than Justice Newman presiding over it, due to your familiarity with cattle and experience with issues of stock theft. But if there was a commercial dispute we would much rather have Judge Newman than Your Lordship. The choice has nothing to do with where Your Lordships sympathies lie as a judge, or whether or not you are likely to accept bribes in respect of certain type of matters, but has everything to do with Your Lordships strengths as a jurist. 7. In our respectful view, although all judges of the High Court are of cognate jurisdiction, there is nothing wrong with litigants wanting their matters heard by judges whom they believe are most likely to do justice to their matter. Forum shopping only becomes morally wrong and unethical when it is initiated by the bench itself because judges are not supposed to have an interest in matters that come before them. 8. The Chief Justice’s office is a perennial culprit when it comes to interfering with the allocation of matters to influence their outcome. In Good v. Attorney General, the Chief Justice’s office removed the matter from Justice Marumo, who interdicted a deportation order, and allocated it to judges who were seen as more likely to be sympathetic to the Government’s position. In Motswaledi v. Khama, Justice Dingake was removed from the case to make way for a panel of 3 judges, which was seen as more likely to be sympathetic to the President’s case. In the Unions’ strike dismissal case, the executive broke long standing precedent, that a stay of execution is only available in the first instance from the judge whose judgment is sought to be stayed, and approached Judge Kirby directly on the basis that they were not sure whether Justice Dingake would grant them the stay of execution that they sought. 9. Your Lordship in order to curb the practice of forum shopping has directed that the Registry in Lobatse should no longer register originating process. This measure will do nothing to address the issue of forum shopping because the Rules of Court do not prohibit it. There is nothing to prevent a litigant from withdrawing a matter and then refilling the same matter. We shall not hesitate to do so, should we consider this to be the interests of justice to do so. 10. The decision to cease permitting the origination of court process from the Lobatse Registry will simply result in the court becoming more inefficient. The time that it takes to originate court process at Gaborone is unreasonable. At the moment it takes several weeks to originate motion proceedings from the Gaborone Court, whereas in Lobatse it can be done within 48 hours. The decision to cease permitting the origination of court process in Lobatse is therefore irrational and counterproductive. 11. As a result of your insinuations that litigants are involved in forum shopping, we have had to answer enquiries as to whether as regular litigants before the Courts we are involved in forum shopping. We wish to place it on record that we have never had to resort to this practice, but we may do so in future, if we have no faith in the competence of the judges who have been assigned to preside over a matter that we have filed with the courts. It would be a waste of our members’ funds to engage legal representatives to come and argue a case before a judge who has little appreciation of the arguments being advanced. The table below illustrates the even distribution amongst all judges of the last 15 matters originated out of the High Court by the public sector Unions. Matter Judge 1. BLLAWU & Ors/DPSM (O & M case) Dr. Tshosa 2. BOPEU & Ors/DPSM (early retirement of public officers) Dibotelo 3. BLLAWU & DPSM (withdrawal of recognition) Dr. Tshosa 4. BOPEU & Ors/DPSM (overtime pay) Newman 5. BOFEPUSU v. Registrar of Trade Unions (deregistration of BOFEPUSU) Walia 6. BLLAWU & Ors/DPSM (dismissal of striking workers) Dr. Dingake 7. BOPEU & Ors/Edward Tswaipe (defamation) Busang 8. TAWU/BOFEPUSU & Anor (Bargaining Council) Newman 9. BLLAWU & Ors/President Khama (Regulations) Garekwe 10. BLLAWU & Ors/ Minister of Labour (Essential Services statutory instrument) Dr. Dingake 11. BLLAWU & Ors/ DPSM (Organisational Rights) Moroka 12. BLLAWU & ORS/DPSM (Expatriate increment) Tau 13. BOFEPUSU/Registrar of Trade Unions (Constitutionality of provisions of Trade Unions and Employers Organisation Act [Cap 48:01] Leburu 14. BLLAWU & ORS/DPSM (Withdrawal from Bargaining Council) Tafa 15. NALCGPWU/BPOPF (Appointment of Trustees) Motswagole 12. We have previously raised our concerns about the quality of judicial appointments and have articulated our view that the Judicial Service Commission (“the JSC”) seems to have made executive-mindedness the main criteria for appointment to the bench. We believe this a more worthwhile issue to look into, rather than that of the greasing of judges’ palms, which is probably the result of picking up petty gossip which has no substance.
Posted on: Tue, 15 Oct 2013 06:12:01 +0000
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