Uncertainty and confusion over invalidation of the appointment of judges of the Court of Appeal (CoA) was settled on Tuesday, when a full bench consisting three expatriate and two local judges upheld parts of an appeal by President Ian Khama and dismissed the rest. Although the extension of contracts for CoA judges was protected as valid, emphasis was placed during arguments on the advice rendered to the President by the Judicial Service Commission (JSC) as recently declared in the Motumise judgment. Reserving reasons to a later date, the judges ruled that; "The constitutional invalidity of Section 4 of the court of Appeal Act is postponed to 11 April 2017 and has no effect in respect of anything done pursuant thereto prior to the said date. It is declared that the appointment of a Justice of Appeal on more than one fixed term contract of a three year term is constitutional".
A full bench
Former deputy President of the Supreme Court of Appeal of South Africa Louis Harms, Retired Chief Justice of Zambia Ernest Sakala, deputy Chief Justice of Namibia Petrus Damaseb, and local High Court judges Terence Rannowane and Leatile Dambe heard the case. The Government legal team was led by Wim Trengove SC, regarded as one of the best legal minds in South Africa, assisted by Isabella Kentridge, the granddaughter of Sir Sydney Wolf Kentridge QC, regarded in the legal fraternity as the best lawyer SA has ever produced. They were instructed by Matlhogonolo Phuthego of the Directorate of Public Prosecutions (DPP). On the other side, Manual Workers Union lawyer Mboki Chilisa had instructed Alec Freund SC, another highly rated SA advocate with a wealth of experience on Botswana courts.
Section 4 invalid; only up to April 11
The appeal came about after High court Justice Abednigo Tafa had earlier ruled in favour of the National Amalgamated Local, Central Government and Parastatal Workers Union (Manual Workers Union) led by Johnson Motshwarakgole. The High Court declared Section 4 of the Court of Appeal Act unconstitutional after the trade union successfully argued that the section gave the President the power to determine the number of the justices of appeal, contrary to the provisions of the Constitution which says such power rests with Parliament. The High Court held that Section 4 flew in the face of Section 99 (2) (b) of the Constitution, in that it is Parliament, not the President which should prescribe the number of the justices and that Parliament cannot delegate that power to the President. After arguments between the parties on Monday, the CoA recognised that Parliament has already amended the Act to comply with the court order and therefore focused on setting a restriction to the retrospective operation of the invalidation of section 4. The new CoA Act sets a specific number of judges to be appointed to the bench, and argument pursued by the trade union at the high court and on appeal. Advocate Wim Trengove, representing Khama, the Judicial Service Commission (JSC) and the Speaker of Parliament argued that leaving the order open to apply retrospectively could open floodgates for litigation and other challenges as it implies that all appointments since the 1980s are invalid, the decisions made by judges then appointed invalid, the salaries and pensions earned invalid. "The judgment of the High court will undo the past. The CoA has discretion to give constitutional relief by limiting retrospective operation of the judgment to maintain peace, order and good governance," he submitted. The order was restricted to operate up to 11 April 2017, the date on which Khama signed the amended CoA Act into law in compliance with Justice Tafa's court order.
Following the Tuesday decision, Judges of Appeal can now be appointed on more than one fixed term contract. Appeal justices who have served for more than one three-year fixed contract can continue presiding over cases and their decisions remain enforceable. Advocate Freund had, on behalf of the union, argued unsuccessfully that it is unconstitutional to appoint judges of the appeals court on more than one fixed term. He said renewability of contracts introduces the risk where the appointing authority will reward some and punish troublesome judges. "If the power of the President to reappoint the president of the CoA is extended to all other judges this will be incompatible with the principle of independence of the judiciary. Certainty of tenure of a judge of appeal equates to independence," argued Freund.
Judges clash over a case
In an unprecedented turn of events in local jurisprudence, two judges have been presiding over the same case in separate courts, in the marathon litigation between BOFEPUSU on one side and the pact between Government and BOPEU on the other. The interim order barring Government from unilaterally awarding a section of the public service salary adjustments, which was discharged on Thursday, has exposed serious weaknesses in the judiciary and in the process revealing serious challenges in the delivery of justice. Some within the legal fraternity expressed shock when Court of Appeal Justice Monametsi Gaongalelwe presided over an interlocutory application for stay of execution of a judgment delivered by High Court judge Tshepo Motswagole just two weeks apart in April. Despite that the matter brought before him was not an appeal, Gaongalelwe ignored advice from BOFEPUSU lawyers that the matter was still alive before Motswagole and that the stay application should have been lodged in the same court. He proceeded to grant the stay of execution, which effectively gave Government permission to disobey Motswagole's orders by continuing to pay the interdicted salary increments. Three weeks later, on the return date of his interim order (May 24), Motswagole dismissed Gaongalelwe's decision to preside over a matter that was still before him saying he lacked jurisdiction and should have referred the parties to the right court. He said the CoA could not usurp the jurisdiction of another court in a returnable matter and discharge a rule nisi granted by the High Court. Motswagole quashed Gaongalelwe’s intervention as mere discussions, and his orders mere opinions.
What is not in the open is that Gaongalelwe's proceedings came at a huge cost to the litigants as close to ten lawyers, including senior counsel and an advocate from SA represented the parties. Although he claimed to expedite the appeal on the interdicted increment, which has been filed by government, Gaongalelwe set the hearing in October despite that there is a July session of the CoA. Government and BOPEU are appealing against Motswagole's judgment that the Public Service Bargaining Council (PSBC) has the sole powers to negotiate and effect salary increments on behalf of all public servants as opposed to Government’s unilateralism and contrary to an earlier finding by Industrial court judge Harold Ruhukya. The recent developments in court are reminiscent of the time when the Chief Justice Maruping Dibotelo and Law Society of Botswana (LSB) complained that some judges and lawyers were involved in forum shopping. The judiciary has lately come under heavy controversy due to events within the administration of justice and from other arms of government, particularly the historical standoff with the Executive. There have been battles between judges themselves, with the Head of State playing a catalyst while on the other hand there were pending cases of judges suing the Executive. Further, more judges have been summoned to apologise to the Executive.