- Accused of violation of principles of natural justice - Justice Walia failed to disclose conflict of interest - Justice Tau accused of allowing Justice Walia’s hostilities
The Court of Appeal Judge President Tebogo Tau and Justice Singh Walia have been reported to the Chief Justice Terrence Rannowane accused of violating the principle of natural justice.
The duo has been reported by Infotrac (Pty) Ltd Managing Director Mompoloki Motshidi. According to a letter seen by Botswana Guardian, the Debswana vs. Infotrac appeal case is riddled with violations of the principle of natural Justice. The appeal was heard on the 10th of July 2023 at the Court of Appeal in Gaborone.
Motshidi is raising a grievance arising from proceedings of the appeal hearing of the case. He argued that it became glaringly evident during the hearing that there was a clear difference in treatment and untoward demeanour towards Ifotrac Counsel, Kgosietsile Ngakaagae from the Botswana Judges.
He stated that in a clear display of partiality, counsel for the appellant, John Carr-Hartley of Armstrongs Attorneys, was wonderfully led with the most cordial of invitations whereas Kgosietsile Ngakaagae was led to the slaughter before a united firing squad of Justices Walia and Tau.
“In what was tantamount to gross misdirection and demonstration of partiality, Justice Walia, in what was an unprofessional address towards Ngakaagae, uttered a shocking and hostile statement to the effect that Ngakaagae ‘I see a lot of inconsistency in your arguments and I cannot see how you would satisfactorily escape the challenge I had presented’, to which learned counsel responded, "it is perhaps pointless to even try to defend the appeal when his Lordship has already pre-determined the outcome of the matter, more so when I am not given a chance to fully answer questions posed to me.
“With all that harassment and intimidation, a lesser experienced attorney would have caved under the hostility Ngakaagae endured. This behaviour by Justice Walia and Tau raised serious concerns as to the Judges' impartiality”, reads the letter dated 19th of July 2023 addressed to the Chief Justice and Law Society of Botswana.
Motshidi revealed in the letter that it has been discovered post appeal proceedings that there was a clear failure to disclose an interest in the matter by Justice Walia, who he said is a former employee and Partner of Armstrongs Attorneys.
Not only that, but his wife, Theresa Walia, to date is also actively and gainfully employed at Armstrongs Attorneys and also Counsel Carr- Hartley's personal secretary, he revealed. He said there is a blatant interest that disqualifies Justice Walia from exercising impartiality over the matter.
According to Motshidi, Walia benefits from his wife's gainful employment from the appellant's Attorney as they share her income as spouses and a household.
“What is further disturbing to note, is that having now gone through all correspondence between Infotrac and Armstrongs, we have realised that the correspondence received from Armstrongs was indeed from Theresa Walia, Justice Walia’s wife.
“This means she had intimate knowledge of all the correspondence between the two parties and it is most probable that through her secretarial role, she would have been the one typing the letters for Counsel Carr-Hartley's signature.
“It would be reasonable for any ordinary person to believe that Justice Walia had access to, and was privy to all material matters relating to this case even before it reached the Court of Appeal. This is a gross anomaly that should have been addressed by the Court before assigning Justice Walia to the panel presiding over the matter,” Motshidi argued.
He stated that not only did Justice Walia fail to declare this interest to concerned parties, he also did not propose to recuse himself from the matter. According to Motshidi, there is a huge potential for abuse and hijacking of the Justice system in this scenario.
Turning to Justice Tau, Motshidi said as Judge President of the Court of Appeal who should champion the principles of natural justice, Tau cannot possibly be reasonably said to be ignorant of the glaring facts raised concerning Justice Walia and his connection to Armstrongs and John Carr- Hartley.
“If she was, then she failed or neglected to conduct a basic due diligence into the judges to determine if they are fit for appointment to the panel. Had she done so and discovered the undisclosed interests, the proper course of action would have been for Justice Tau to disqualify Justice Walia ab initio from this matter, remove him if he was appointed without her approval or compel him at the very least to make disclosure of his interests. None of this was done”.
Further, Motshidi said that during the trial, Justice Tau allowed the hostilities from Justice Walia towards Ngakaagae to continue for a prolonged period of time. When Ngakaagae was done navigating the hostilities and tried to get to the substantive defence of the appeal, Tau proceeded with a sense of irritation and impatience, to ask Ngakaagae how long he will take to conclude; effectively forcing a frustrated but composed Ngakaagae to rush through his substantive presentation.
Further, that this infringed on the other party's rights to be afforded a fair hearing. He stated in the letter that there are allegations that Justice Tau professionally depends on Justice Walia so extensively to the point that the latter sometimes writes judgments for the former. He revealed that a case in point would be the Balete vs The State judgment. Motshidi noted that if indeed there is a co-dependency between the two of master and student, it would explain why Justice Tau allowed a conflicted Walia to sit on the matter.
“She simply can't do her job without him. She will therefore decide the matter in whatever direction Walia J dictates. She cannot be impartial if she cannot be independent.
“In essence, she, by allowing all this to happen on her watch especially as Judge President, has, by virtue of her office, committed the gravest violations of natural justice and is very complicit in the tainting of these proceedings.
“We humbly submit that the appeal proceedings as a whole be declared a nullity. There was what in law is a called a miscarriage of justice”, the letter reads.
The duo has been reported by Infotrac (Pty) Ltd Managing Director Mompoloki Motshidi. According to a letter seen by Botswana Guardian, the Debswana vs. Infotrac appeal case is riddled with violations of the principle of natural Justice. The appeal was heard on the 10th of July 2023 at the Court of Appeal in Gaborone.
Motshidi is raising a grievance arising from proceedings of the appeal hearing of the case. He argued that it became glaringly evident during the hearing that there was a clear difference in treatment and untoward demeanour towards Ifotrac Counsel, Kgosietsile Ngakaagae from the Botswana Judges.
He stated that in a clear display of partiality, counsel for the appellant, John Carr-Hartley of Armstrongs Attorneys, was wonderfully led with the most cordial of invitations whereas Kgosietsile Ngakaagae was led to the slaughter before a united firing squad of Justices Walia and Tau.
“In what was tantamount to gross misdirection and demonstration of partiality, Justice Walia, in what was an unprofessional address towards Ngakaagae, uttered a shocking and hostile statement to the effect that Ngakaagae ‘I see a lot of inconsistency in your arguments and I cannot see how you would satisfactorily escape the challenge I had presented’, to which learned counsel responded, "it is perhaps pointless to even try to defend the appeal when his Lordship has already pre-determined the outcome of the matter, more so when I am not given a chance to fully answer questions posed to me.
“With all that harassment and intimidation, a lesser experienced attorney would have caved under the hostility Ngakaagae endured. This behaviour by Justice Walia and Tau raised serious concerns as to the Judges' impartiality”, reads the letter dated 19th of July 2023 addressed to the Chief Justice and Law Society of Botswana.
Motshidi revealed in the letter that it has been discovered post appeal proceedings that there was a clear failure to disclose an interest in the matter by Justice Walia, who he said is a former employee and Partner of Armstrongs Attorneys.
Not only that, but his wife, Theresa Walia, to date is also actively and gainfully employed at Armstrongs Attorneys and also Counsel Carr- Hartley's personal secretary, he revealed. He said there is a blatant interest that disqualifies Justice Walia from exercising impartiality over the matter.
According to Motshidi, Walia benefits from his wife's gainful employment from the appellant's Attorney as they share her income as spouses and a household.
“What is further disturbing to note, is that having now gone through all correspondence between Infotrac and Armstrongs, we have realised that the correspondence received from Armstrongs was indeed from Theresa Walia, Justice Walia’s wife.
“This means she had intimate knowledge of all the correspondence between the two parties and it is most probable that through her secretarial role, she would have been the one typing the letters for Counsel Carr-Hartley's signature.
“It would be reasonable for any ordinary person to believe that Justice Walia had access to, and was privy to all material matters relating to this case even before it reached the Court of Appeal. This is a gross anomaly that should have been addressed by the Court before assigning Justice Walia to the panel presiding over the matter,” Motshidi argued.
He stated that not only did Justice Walia fail to declare this interest to concerned parties, he also did not propose to recuse himself from the matter. According to Motshidi, there is a huge potential for abuse and hijacking of the Justice system in this scenario.
Turning to Justice Tau, Motshidi said as Judge President of the Court of Appeal who should champion the principles of natural justice, Tau cannot possibly be reasonably said to be ignorant of the glaring facts raised concerning Justice Walia and his connection to Armstrongs and John Carr- Hartley.
“If she was, then she failed or neglected to conduct a basic due diligence into the judges to determine if they are fit for appointment to the panel. Had she done so and discovered the undisclosed interests, the proper course of action would have been for Justice Tau to disqualify Justice Walia ab initio from this matter, remove him if he was appointed without her approval or compel him at the very least to make disclosure of his interests. None of this was done”.
Further, Motshidi said that during the trial, Justice Tau allowed the hostilities from Justice Walia towards Ngakaagae to continue for a prolonged period of time. When Ngakaagae was done navigating the hostilities and tried to get to the substantive defence of the appeal, Tau proceeded with a sense of irritation and impatience, to ask Ngakaagae how long he will take to conclude; effectively forcing a frustrated but composed Ngakaagae to rush through his substantive presentation.
Further, that this infringed on the other party's rights to be afforded a fair hearing. He stated in the letter that there are allegations that Justice Tau professionally depends on Justice Walia so extensively to the point that the latter sometimes writes judgments for the former. He revealed that a case in point would be the Balete vs The State judgment. Motshidi noted that if indeed there is a co-dependency between the two of master and student, it would explain why Justice Tau allowed a conflicted Walia to sit on the matter.
“She simply can't do her job without him. She will therefore decide the matter in whatever direction Walia J dictates. She cannot be impartial if she cannot be independent.
“In essence, she, by allowing all this to happen on her watch especially as Judge President, has, by virtue of her office, committed the gravest violations of natural justice and is very complicit in the tainting of these proceedings.
“We humbly submit that the appeal proceedings as a whole be declared a nullity. There was what in law is a called a miscarriage of justice”, the letter reads.
