The war of the lords
Chief Justice Terrence Rannowane has taken a swipe at Justice Gabriel Komboni for launching an urgent application with the Maun High Court interdicting his transfer from Gaborone to Francistown.
He said the judge did this even though all parties involved, as well as their representatives, are based in Gaborone.
According Justice Rannowane, the judge to date has not provided a clear or well-reasoned explanation for his decision to institute the application in Maun. On the 17th November 2022, Justice Komboni filed an urgent application for an interdict against the Chief Justice’s decision to transfer him from Gaborone High Court division to the Francistown High Court division.
According to the Chief Justice, the decision to transfer Judge Komboni to Francistown was because there was and continues to be significant need to make space for Judge Nyamadzabo, who currently sit in Francistown, to occupy chambers in Gaborone. He said this is because Judge Nyamadzabo has been appointed Chairman of the Independent Electoral Commission (IEC).
For him to effectively execute both his mandates as a judge and IEC chairman, he has to be in Gaborone, explained Justice Rannowane. Justice Komboni successfully interdicted the chief justice before Justice Bugalo Maripe of Maun High Court division. Chief Justice Rannowane is the applicant while respondents are Justice Komboni (1st Respondent), Judicial Service Commission (2nd Respondent), Dr. Godfrey Radijeng (3rd Respondent), Tshegofatso Mogomotsi (4th Respondent) and Ookeditse Maphakwane (5th Respondent).
The Chief Justice seeks among others a rule nisi staying the execution and implementation of the judgement made by Justice Maripe on 23rd November 2022, 1st December 2022 and 14th February (the judgement and orders), pending the final end and determination of the appeal lodged by the Chief Justice to the court of appeal; and the appeal against the judgement and orders shall proceed and be heard on an expedited basis, as soon as it is practical.
According to the Chief Justice, in view of the fact that the matter is of exceptional public importance and should accordingly be heard by three (3), which would not be possible in Maun where there are only two judges, as well as the fact that the forum of convenience for this matter is clearly Gaborone in light of the residences of all the parties, “I made a decision to empanel three (3) High Court judges in the Gaborone division and to transfer the matter from Maun High court to Gaborone High court.
The judges whom I have appointed to hear the matter are Honourable Judge Maphakwane, the Honourable Judge Radijeng and the Honourable Judge Mogomotsi”. The Chief Justice argued in his founding affidavit that he reached a conclusion that the matter is of exceptional public interest after consultation with the Registrar and after consideration of the constitutional issues raised along the challenges made to the powers of the chief justice to transfer Judges of the High court.
He avers that the Maun High Court division only has two (2) judges. The chief justice stated that by contrast, this would not be the case in Francistown, Gaborone, or Lobatse where there are over 25 judges who could be picked at random.
Those factors he said would have been known to Justice Komboni when bringing the application and it can be inferred that this would have influenced his choice of High Court division. He stated also that it is a well-known fact that Justices Komboni and Maripe are close. “I respectfully submit that it is clear that in all the circumstances, it was inappropriate for judge Komboni to sue at Maun High Court as opposed to the court that is closest to all parties. There is an overarching obligation on a litigant, in deciding the forum for instituting his claim, to consider the financial and logistical implications and access to justice of all parties when deciding on such a forum.
The perceived inefficiency of the other division and the convenience of the judge Komboni alone is simply contrived, disingenuous and does not constitute a reasonable explanation for this decision,” argued the chief justice. Justice Rannowane further argued that this consideration should have been made by Judge Maripe when the matter was brought before him and upon receiving the letter of empanelling the judges and transferring the matter, he ought to have declined to hear the matter and insisted that my directive be implemented by the registrar of the Maun High Court.
In terms of Section 13 (2) of the Regulations of the Judicial Service Act, it is an act of misbehaviour for a judge to refuse or fail to comply with lawful instructions issued by the chief justice as the head of the judiciary in Botswana, said Justice Rannowane.