Words are not enough to capture the loss to the family and the nation occasioned by the passing of Mr. Marumo, former Judge of the High Court. I convey to the Marumo family our heartfelt condolences. Together with the entire nation, we share in the grief of the passing of this monumental legal mind, a loving and caring father, husband, friend, relative, a jurisprudential pathfinder of note, an embodiment of wisdom, courage, humility, and justice.
Moatlhodi Marumo is first and foremost my cousin. The blood that ran through him, is the same blood that shaped and defined my being. And even though he has gone to sleep, Marumo still lives amongst us his blood relatives. I am proud to say that his life was a blessing to his family and the nation at large. Professionally, our paths have tended to cross. He was appointed acting Judge of the Industrial Court in 1994. A few years later, I was appointed an acting Judge of the same court.
In 2001, he was appointed Judge of the High Court. In the same year, I was appointed Judge of the Industrial Court. He left the High Court bench in 2006. I was appointed Judge of the High Court in 2005 and were neighbours at Lobatse. As Judge of the High Court, he was designated the Chairperson of the Law Reporting Committee – a committee that grades judgments of the higher courts for reportability. When his term as Chair of the Committee expired, I took over as the Chair.
The above more than qualifies me to speak about his professional life.
Mr. Marumo cut his teeth as a Judicial Officer at the Industrial Court. It was there that his talent as a jurist par excellence was revealed. One of the memorable decisions he delivered at the Industrial Court, of which I was Counsel for the applicant, concerned the Botswana Diamond Sorters’ and Valuators’ Union v Botswana Diamond Valuing Company.
In the above case the question that fell for determination was whether an employer, who, in terms of its conditions of service is granted the right “to vary its conditions of service at anytime, at its own discretion”, could do so unilaterally, without negotiating with the Union, alternatively to consult with it.
Marumo J (as he then was) held that the relationship between an employer and an employee should not be considered purely on contractual basis, but rather on the basis of fairness and reasonableness, because of the inherent imbalance in power relationship between the two contracting parties, the employer, in most cases being the dominant partner.
In so holding, he entrenched further the equitable jurisdiction of the Industrial Court and buried, once and for all the law of master servant. The Botswana Diamond Sorters and Valuators’ Union case demonstrates that he had a liberal streak. Where the opportunity presents itself, he looks for ways to expand law to protect the weak, just as his mentor, Collins J (as he then was) would do, as illustrated by the latter’s decision in the case of Macharia v The Law Society of Botswana. Although both of them were blessed with a razor sharp mind, the student was more circumspect and the teacher bolder. Both of them were cut out of the same cloth. In public law, they were always willing to expedite change when such change has clear beneficial effect.
Lord Denning that luminary of the British bench; some say the greatest Judge of the 20th century, once opined that there are two types of Judges: timorous souls and bold spirits.
Marumo was not a timorous soul. Just, like Lord Denning, Marumo believed that the progressive development of the law is to be credited to judicial creativity and courage of bold spirits. He disapproved of timorous souls who showed blind allegiance to old precedent even if it does not serve the ends of justice.
Marumo was of the view that if the powerful in society abuse their powers without restraint, it is essentially because of the dominant influence of timorous souls and those who Lord Atkin, in the celebrated case of Liversidge v Anderson, said were more executive minded than the executive.
Marumo believed that judicial officers, in interpreting the law, should never lose sight of the fact that, as Justice Benjamin Cardazo, would say, the final cause of law is the welfare of society.
When he joined the High Court in 2004, the values of fairness and justice had found a place of pride in his mind and his philosophy that law must serve the ends of justice was reflected in his judgments. A Judge’s philosophy is important. It is his compass. It determines the interpretation he/she must place on words or textual provisions. By this, I do not mean that a Judge is at liberty to decide cases according to his personal predilections. He is not. Philosophy just guides him/her.
Not long after joining the bench, he presided over the first phase of Professor Good v The Attorney General case. Professor Good had been declared a prohibited immigrant by the President of the Republic.
He approached the court challenging the presidential directive. Marumo J (as he then was) issued an interim order halting the deportation. The rest as they say is for future historians to grapple with – but whatever historians’ final verdict will be, I am certain that history will absolve him.
Sitting in the High Court’s exalted offices, what one often needs, is more than a law degree, but plenty of courage, intellectual depth and conviction. Marumo had all this in abundance.
The law has been called “the place where order and freedom meet”. That is where Marumo lived. Blackstone called the law “the principal and most perfect branch of ethics”. That too was Marumo’s belief.
The Good decision demonstrates that he was not possessed of fear. He believed in justice for all. He administered justice without fear or favour. Before him the rich and poor, the old and the young, knew that fair implementation of the laws of the land and even handed resolution of disputes is guaranteed.
On criminal law and procedure, he was outspoken on the right of the accused to remain silent; to be free from unreasonable searches and seizures; to be represented by counsel; to be afforded adequate facilities for his defense. He insisted that those found guilty and sent to prison must be treated fairly and decently and to be afforded dignity that resides in all human beings. This approach gave recognition to the fact that these rights do not belong to government, but were carved by the people, for themselves, when they created government.
Marumo was opposed to the view that the abridgement of freedom was a proper response to high levels of crime and violence. He never forgot that our Constitution is but a promissory note, whose promise - fundamental rights for all – can only be effected by an independent and impartial judiciary.
The above is amply illustrated by the case of Muzila v The Attorney General, where after bemoaning the tendency of some lawyers not to embark on thorough and comprehensive research to assist the Court, his own research led him to conclude that the applicant was denied equal protection of the law decreed by the Constitution. After so declaring, he directed that the prosecution of the applicant must be proceeded with, without undue delay.
It is plain from reading the case of Muzila that as a Judge, Marumo was opposed to mediocrity from both the bar and bench.
On family law, he showed informed impatience with parents, especially men, who had to be dragged to Court to be reminded of their responsibility to maintain their children.
For many who read his judgments, one golden thread is self-evident. His judgments are a model of lucidity. He was blessed with a sharp and nimble mind, a gift of simplicity and eloquent language. To read his judgments is to experience the joy of the intercourse between linguistic elegance and logical reasoning. His judgment writing skills and compelling logic earned him the affection of the legal fraternity and beyond.
Marumo never shied away from engaging in open and robust debate. In a recent interview with one of the local newspapers, Marumo sought to challenge all of us to critically reflect on the appointment process of the bench, making it clear that a transparent and merit based process is in public interest.
Often controversial, Marumo never rose beyond Judge of the High Court. But every lawyer who read his judgments and those who worked with him at the High Court, would testify that he was well-suited to grace the highest bench of the land. This notwithstanding, his impact on the law cannot be ignored. His judgments cited with approval across our borders, speak volumes of his knowledge of the law.
As I draw to the end, I wonder, aloud, what would Marumo ask of their Lordships and Ladyships still alive and busy at work today?
To the above question, we can only hazard a guess, but I doubt whether those who knew him would be far off the mark. I think, among many other things, he would probably say, please, use your intellect, creativity and powers to end all forms of unfair discrimination, in all those areas of national life where discrimination still exists.
If I were to paint a canvass of this towering judicial mind, I would paint him head bowed, writing a judgment, the rays of his intellect dispersing archaic principles of the law and commanding justice to take centre stage in his judgment. It would be a portrait of a man who despite the uncertainty and turbulence of the times, his personal safety, would not compromise on a matter of principle; would not abandon the standard of what is right; would not reject what he believes to be true. It would be a portrait of a man protecting his nation. The scales of justice evenly balanced on his table.
In summation, I would say he was a man of courage, humility, energy, and vision. He was I think a more complex person than some have suggested. In him, there was an inter-mixture of the pragmatic and the idealistic. In him, there was a blending of compassion and strength of faith and reason, of hope and concern. He was gentle, yet firm; candid, yet cautious; flexible, yet decisive.
A tribute to Marumo would not be complete without a mention of what he was like as a person. I cannot imagine any kinder, more generous person. He had a big heart. In the time I have known him I have never heard him say anything bad about any person. He treated everyone, young and old, rich and poor with respect. A total gentleman; he honoured every commitment he made. He was a private person. He treasured the right to privacy for himself, his family and for everyone. He deplored eavesdropping in all its forms and considered it wrongful and intrusive.
Marumo was a reverent worshipper in the Catholic Church. He was a Christian in the true sense, believed in the gospel and practiced its tenets. On this he differed with his two cousins who hardly went to church.
I would like to end on a personal note. I respected and admired my cousin, my brother and my friend. But I come from his passing challenged and inspired to carry on in some small way his great work. I hope all of us here would say the same thing. We are the keepers of the republic now. He bequeathed to us the gift of courage and intellectual honesty. The rest is up to us.
May his soul rest in eternal peace.
*Justice Oagile Key Dingake, a High Court judge in Botswana has worked with the late Moatlhodi. This statement was made by the judge at the funeral of the late Moatlhodi in Gaborone this week Monday.