President Ian Khama, Speaker of the National Assembly and the Judicial Service Commission (JSC) got a slap on the face on Thursday when Lobatse High Court judge Abednigo Tafa dismissed their application to suspend the execution of orders he recently issued nullifying the appointment of Court of Appeal judges. Beyond ordering that the current practice of Khama appointing judges of appeal is unconstitutional, Justice Tafa further declared invalid and nullified the extension or renewal of three-year contracts for the appeal judges. He then suspended the order nullifying section 4 of the CoA Act for six months to give relevant authorities an opportunity to regularise the situation. Khama & Co then rushed to court on urgency, seeking the suspension of Justice Tafa's orders to allow the Court of Appeal to continue to operate in the public interest, pending an appeal of the judgment. Through acting Attorney General Morulaganyi Chamme, they argued that there are two constitutional matters currently pending before CoA and if the orders are not suspended the appeal judges cannot sign and deliver the judgments, to the prejudice of the litigants and the public. In addition, the CoA session scheduled to start on February 17 has been postponed, they submitted. "To rely solely on judges of the High Court for upcoming sessions of CoA will be extremely disruptive of the normal work of the High Court and will be prejudicial to the litigants, as will the cancellation or postponement of the upcoming sessions of the CoA," said Chamme. Opposing the application, Johnson Motshwarakgole of manual workers union said that it would be unlawful, inappropriate and improper for judges found to be appointed unconstitutionally to continue to sit in any future appeals until Tafa's judgment has been set aside. He said even if they are allowed to continue, through a suspension of the orders, their judgments will be invalid, if the appeal by the state fails in future and as interested parties they would still be obliged to recuse themselves. Motshwarakgole pleaded with court to make Tafa's judgment final because it is impossible to constitute a Court of Appeal to determine the intended appeal by Khama and others. "An ostensibly temporary stay would permanently subvert the law as it has been determined to be by this court," said Motshwarakgole.
Rejecting the suggestion of a judicial crisis by Khama & co Justice Tafa said the prejudice to be suffered by litigants in the two cases where judgment is pending before CoA is far outweighed by that to be suffered by the union and many others should he suspend the orders only for the state to lose the appeal after more cases have been presided over by the disputed judges. He drew a comparison of the current impasse to the demise of a sitting judge before passing judgment, which would prejudice the litigants but does not mean they would be left without remedy. "The cases could be heard de-novo. This is so in cases referred to as they are appeals not trials. A differently constituted court would not find it difficult to hear the cases," observed Tafa. Justice Tafa expressed concern that the February application session of the CoA was cancelled by President of the Court of Appeal, Ian Kirby recently, when the sessions have always been dealt with by the three resident judges and does not need a full bench. "More often than not only one judge sits to determine an application of that sort. There is no reason why the President of the court could not enlist the assistance of two ex-officio judges from the High Court. (Kirby's) statement was made before a decision had been made to appeal the jugdment of this court. He seems to have made up his mind that there would be an appeal yet he gives the impression that the Attorney General is yet to decide the way forward," noted Justice Tafa. Justice Tafa said it would be a risk to suspend the orders when there is no certainty as to whether an appeal court can be convened, in which case the suspension of the orders will be tantamount to subverting the ends of justice because it would remain in force indefinitely to the prejudice to those who hold a judgment in their favour. “This would be unjust and contrary to all notions of justice. This therefore diminishes, in no small measure, the applicants' prospects of success. The possibility of the CoA not being able to convene owing to the fact that all the justices thereof are conflicted is not as farfetched as some may think. There is real risk that the CoA as presently constituted is conflicted and that no justice of the said court qualifies to convene same for purposes of this appeal,” he said. Examining the grounds of appeal submitted by the state, Justice Tafa ruled that they cannot succeed on appeal because of the wrong interpretation of the statute they accused court of erring on. He said section 2 of the CoA Act of 1980 far from expanding section 4 of 1972, expressly repealed it by substitution.
He also quashed as irrelevant Chamme's suggestion that section 4, at the centre of the dispute should be interpreted in its historical context, since it had been operating for 37 years and still is not causing any prejudice to any litigant. Justice Tafa also dismissed all other historical arguments advanced by the state, as irrelevant to the current lawsuit. In respect to the ground of appeal on renewability of contracts of justices of appeal, Chamme argued that the practice subsequent to the promulgation of the Constitution and the establishment of the CoA is that judges were always employed on renewable contracts of employment. "The constitution is not meant to only serve the current generation but is intended for future generations. Its meaning can therefore not be perverted by unconstitutional practices that emerged subsequent to its promulgation," said Tafa. On the argument that he erred in holding that determination of the number of judges of appeal needed to cope with its case load from time to time constituted a matter of high policy which could not be delegated by parliament, Tafa said Chamme and his clients do not grasp issues that were before court. He said there is a difference between prescribing the maximum number of Justices of appeal i.e. setting a ceiling and appointing from time to time more justices but within the set ceiling. “The former cannot be a routine administrative duty. This is clear and parliament recognized this difference when it prescribed the ceiling for high court judges strictly in accordance with the provisions of the constitution,” he said, emphasising that the state once again miss the point as regards the court's finding that Parliament abdicated its duties when it purported to delegate to the President, in that it did not set parameters. Two weeks ago, justice Tafa concurred with arguments by manual workers union and ruled that the current practice where Khama appoints appeal judges is unconstitutional, as powers to determine the number of CoA judges rests with Parliament. He also found that the decision by Khama to extend contracts of some appeal judges contravenes the constitution and nullified it. Consequently, save for CoA judge President Ian Kirby, the appointment of all appeal judges was nullified and 'relevant authorities' ordered by justice Tafa to regularise the appointments within six months. Even then, most of the judges on the CoA bench will be disqualified because they are currently on extended contracts, in violation of constitutional provisions.