Chief Justice dishonesty exposed
Chief Justice Terrence Rannowane has been accused of dishonesty after he pleaded for out of court settlement of litigations with other judges but later forged ahead with one of his court cases.
The chief justice has three litigations with three judges, Gabriel Komboni, Tshepo Motswagole and Ketlogetswe. According to Justice Komboni, a few minutes before the start of the legal year ceremony this year, the chief justice sent Justice Dr. Zein Kebonang to approach him and other judges that were litigating to propose that litigation be settled out of court. He said with other judges they agreed in principle to the settlement of the matters out of court.
During the opening of the legal year on the 6th February 2023 Chief Justice Rannowane revealed that litigations between him and some judges will be settled out of court although he recognised the rights of any aggrieved person to bring any matters before court for redress.
In his affidavit in a case in which he is locked in a legal tussle with the chief justice over his (Justice Komboni) transfer from Gaborone High Court Division to the Francistown Division, Komboni says that he is not sure if the chief justice had already included this aspect of out of court settlement in his prepared speech.
“In the afternoon of 6th February 2023, I together with Judge Motswagole and Judge Ketlogetswe being the litigating judges attended a meeting with the chief justice in his chambers in the presence of Justice Tau, the President of the Court of Appeal.
“In attendance was also judge Kebonang who was the emissary for the First Applicant (Chief Justice) to communicate with ourselves. In attendance was also Judge Motumise who I understood to have attended on the basis of his friendship with the first Applicant,” Judge Komboni said.
It was proposed at the meeting that the litigating judges should make proposals for out of court settlements to the chief justice. Komboni made his proposal to the chief justice which the chief justice did not respond to fully.
“On the 16th February 2023 my attorneys addressed a letter to the Attorney General who was representing the First Applicant after he had intimated that he was no longer represented by Collins Newman Attorneys in which
my settlement proposal was reiterated and a draft settlement agreement was attached for the first applicant’s consideration.
“To date the first applicant has not responded to the same settlement proposals either by way of rejection or counter proposal despite an acknowledgement of the proposal through his other attorney Mr Laurence Khupe dated 2nd march 2023. Instead the first Applicant proceeded to lodge the appeal against the ruling of Justice Maripe,” Justice Komboni says.
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 is because there was and continues to be significant need to make space for Judge Nyamadzabo, who currently sits 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.
Justice Komboni argued that the application is not urgent and the applicants seek to challenge court orders that were delivered on the 23rd November 2022, 1st December 2022 and 14 February 2023.
This application has been filed beyond the six weeks’ timeframe permissible for lodging an appeal as of right, he averred. He explained that the appeal has been brought several months following delivery of the court orders, now sought to be impugned, any urgency there may be, is demonstrably self-created.
Responding to the chief justice averments, Justice Komboni says the need to transfer him in order to create space for Justice Nyamadzabo is no longer there as there was a request by Judge Ketlogetswe of Lobatse high court to be transferred to Francistown.
He argued that it is not strictly necessary to have Judge Nyamadzabo based in Gaborone in order to execute his duties at the IEC as chairman as previously Judge Mosojane executed the same duties while based in Francistown for many years. He said the issue of shortage of space is also exaggerated.
He said against the chief justice argument there is nothing strange about him filing his application at the Maun High Court. He said it would be speedy to file the urgent application at the said high court due to its moderate workload arising from the fact it is newly-established.
The first applicant had previously indicated in response to a complaint raised by the lawfirm of Duma Boko & CO. about registration of a matter filed in Maun in the case of Dumelang Saleshando & Anor v. Duma Boko and Umbrella for Democratic Change, where all parties were based in Gaborone and indicated that there is nothing wrong with filing it in Maun.
"I do not understand what the difference between this matter and the last matter is. It is therefore unclear why the Chief Justice would want to transfer the matter to Gaborone.”
Justice Komboni said it is therefore surprising for the chief justice to turn around and accuse him of impropriety when he never saw such impropriety in the matter stated where parties similarly circumstanced had filed their matter at the Maun High Court. He contended that the Rules of the High Court and the High Court Act do not give the Chief Justice the power to transfer a matter from one High Court division to another division.
“The First Applicants did not have colour of authority to make the decisions to transfer the matter between divisions. The Judge President of the Maun High Court and the Assistant registrar did not implement the decision. The file was never transferred to Gaborone division.
“It is patently unlawful and surprising that the chief justice would want to exercise authority in respect of the establishment of a panel and decide who should form part of the panel over a matter where his decision is being challenged and where duly cited as a party to the proceedings,” Judge Komboni argued,in his answering affidavit, adding that the conduct is patently illegal because the chief justice is clearly conflicted thus breached the rules against bias.
He noted that it is gravely improper for the chief justice to exercise authority in a matter in which the exercise of powers by him is being challenged. According to Justice Komboni, the chief justice is the one who created a two-man court in Maun.
"I should not be blamed for such a scenario if I choose to litigate before the same court more so that the first applicant has said that litigants are free to choose any division of the High Court to litigate at," he added.
Justice Komboni has accused the chief justice of imputing improper motives on him and other judges at the Maun High Court with absolutely no basis. In response to claims by chief justice that he (Justice Komboni) is in a personal relation with Maun judges, he said.
“In the first place it is patently false for the first applicant to say that it is a well-known fact that judge Maripe is a personal friend of mine. Not only am I not a personal friend of the judge, I do not even have a personal or any form of relationship with him whatsoever. The last time I saw Judge Maripe was when he was still a practicing attorney and he appeared before me to note a judgement in a trial he had conducted before me on 2 December 2020.”
He challenged the chief justice to produce proof to his claims. On the chief justice claims that Judge Komboni filed the matter before Justice Godfrey Nthomiwa because they come from three villages of Nshakashogwe/Sebina/Marobela, Judge Komboni avers that he does not know who is supposed to come from which of the three villages between them.
“This allegation is not only shocking and embarrassing coming from a person holding the position of the first applicant as head of the judiciary it is also scandalous and unfair indictment on my character and that of Judge Nthomiwa who has absolutely nothing to do with this matter.
“On the other hand, it is the Applicant who is fighting tooth and nail to have the matters heard by a forum of his own choice which he has appointed contrary to the rules of the High Court and the principles of natural justice,” Komboni argued in his answering affidavit.